Raider Revolution: How Oakland Could Use the 5th Amendment to Keep the Raiders
If Oakland were to use this constitutionally approved means of keeping the team, it could start a populist revolution in the NFL.
By Sam Karimzadeh
The NFL is a microcosm of all that is wrong with American politics. With the exception of the Green Bay Packers, all NFL teams are privately owned, primarily by conservative billionaires. Tens of thousands of people in large media markets gather and throw money away on tickets and merchandise and create enormous streams of ad revenue. Cities spend hundreds of billions of dollars on stadiums that the teams’ billionaire owners could afford on their own. And what do these cities get for their loyalty and patronage?
Not a goddamn thing.
Well, that’s not entirely true. They get a giant construction project that costs at least half a billion — Levi Stadium, where the 49ers (whom I love and adore) play, cost $850 million. These cities’ citizens have the privilege of creating a profit center for stadium lenders such as Goldman Sachs and Bank of America. These cities’ citizens get to sit stuck in bumper-to-bumper traffic because of Thursday Night Football. The stress to highways, expressways and public transportation is a negative externality that these communities not only have the wonderful opportunity to deal with but also get to pay for themselves.
Shouldn’t NFL teams belong to their fans in the same way that a country’s government ought to belong to its people?
In sum, the NFL is a game in which host-city citizens are burdened with expense and extreme inconvenience, while billionaires get free stuff.
American politics, like football, is a game in which you need the approval of billionaires before you can participate. And just like in American politics, the result is manifest injustice. Shouldn’t NFL teams belong to their fans in the same way that a country’s government ought to belong to its people?
If I have to sit in traffic because a 49ers game causes 101, 280 and 880 to lock up, 49ers CEO Jed York should cut me a check. And cut BART a check. And Caltrain. And VTA. Come to think of it, how about Jed York not even be involved and step aside because we the people should not need a middleman to hold what ought to be our money for us.
What Oakland Raiders fans have endured I would only wish upon Seattle Seahawks fans. The city of Oakland has suffered more than a decade of darkness, a football depression. Last year, the Raiders finally made the play-offs and now appear to be poised to make a legitimate Super Bowl run. And what does billionaire asshole and municipal parasite Mark Davis, the owner of the Raiders, do?
He moves the team out of the state.
It’s not like the city of Oakland wasn’t willing to build a new stadium — they put forth a sizable offer. Las Vegas simply made a bigger, more profitable offer to Davis. Davis’s rationale is that it is his team and that he can do with it as he wills.
What possible leverage does Oakland — city or politicians — have here, if any? Could we make Mark Davis’s Raiders into our Raiders?
Actually, yes, we could.
Under the power of eminent domain, the government can seize property if it is being put to public use — and there is a clear case to be made for something like a sports team being put to public use, especially given that so much of their existence is publicly funded already.
How Oakland Could Take Back the Raiders For the People
“Eminent domain” is a legal term that refers to the ability of a government to seize private land — provided they provide a just compensation for it to the owner. Under the power of eminent domain, the government can seize property if it is being put to public use — and there is a clear case to be made for something like a sports team being put to public use, especially given that so much of their existence is publicly funded already.
The constitutional constraint on this comes from the Fifth Amendment’s takings clause, which prohibits the taking of private property “without just compensation.” The United States Supreme Court construes the meaning of “property” broadly to include both personal and real (land) property, as they wrote in the decision Horne v. Department of Agriculture¹: “The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property.”
Generally speaking, California courts define property broadly, such as when they ruled in Estate of Graham v. Sotheby’s, Inc., that the definition of property “encompasses both personal and real property, including monetary interests” — which surely qualifies Oakland’s beloved Raiders.²
Just as a government may seize land to build a railroad, park, school or freeway, so too may it seize personal property. Just as easily as a vacant lot can be seized, so too may a football team. So long as just compensation is provided to the present private owner and the taking is meant “for the benefit of the public at large[.]”³
The Raiders football club provides a clear public service: entertainment, leisure and a profit center for the city. The city of Oakland could then use the profits to first defray the negative externalities of the sports franchise — public transportation and public safety — and then direct the remaining funds back to its coffers. There, for example, it could pay for affordable housing such that artists don’t have to live in slum housing and subsequently die in fires.
In moving the Raiders to Las Vegas, the Davis family took something from Oakland that they didn’t pay for, and didn’t earn — Oakland’s cultural imprint.
Clear legal precedent for this kind of asset seizure by the government was set forth by the US Supreme Court in the infamous 2005 case Kelo v. City of New London. There the Supreme Court expanded eminent-domain powers to allow transfer of land from a private party to another private party on the basis of general benefits the community would enjoy due to the private party’s subsequent development. So long as Oakland pays fair value — presently, the value of the Raiders is $2.1 billion, with yearly revenues of $300 million — the taking of the Raiders is lawful and fully within the constitution’s protections.
The Raiders Belong to Oakland
If you’ve ever seen the zeal, pageantry and fervor of the Black Hole, you’d know that a football team is more than what its owners and operational actors do — it’s the culture of the city and its people and, ultimately, the fans that make the team. In moving the Raiders to Las Vegas, the Davis family took something from Oakland that they didn’t pay for, and didn’t earn — Oakland’s cultural imprint. Now it’s going to be moved to a city of tourists devoid of anything that could be mistaken for the rich cultural history Oakland teems with. Vegas is a desert wasteland known best for being, as Joie Pena put it, “a charmless place full of strippers, gambling and alcoholism,” the home of such lovely and respectable establishments such as the Glitter Gulch. It’s the place where people go to be the worst version of themselves. How appropriate for the Davis family — they’d be right at home. For justice to be done, the City of Oakland must own the Raiders.
But There’s a Catch
In 1985, the NFL adopted a rule requiring, except for in limited circumstances, a single controlling owner. As it says in the Constitution and Bylaws of the National Football League:
“[I]n considering proposed admission for or transfer of membership under Article III of the Constitution and Bylaws, the members shall not approve any admission of or transfer to any corporation or partnership unless a majority of the beneficial interest and voting rights in such corporation or partnership is vested in one individual[.]” (1985 Resolution FC-7, 1985–2.)
Hence the NFL has rules against corporate ownership (“corporate,” used in this sense, includes something like a city). Luckily, this can be circumvented rather easily.
In order to give the NFL what they stipulate — one single person who has legal title to the team — the City of Oakland could simply create a trust with itself as the beneficiary.⁴ A trust divides ownership of a property into two parts — equitable title belonging to the beneficiary and legal title belonging to the trustee. In this instance, Oakland would hold equitable title and could then appoint a trustee who would satisfy the “one individual” requirement.
As the creator of the trust, the City of Oakland can come up will all sorts of restrictions on the trustee’s power, such that if the trustee acts outside the scope of their powers, the interest would automatically revert back to Oakland, which would then select another trustee. The trustee could serve terms not unlike an elected official, and perhaps it would be for the best if the trustee were directly elected by the people of Oakland.
What if the NFL Resists?
If the NFL resisted, it would be a PR nightmare. The situation with Oakland is already a PR nightmare. Other cities would see the NFL fighting Oakland and know that it could just as easily be them next. The 49ers, Chargers, Rams and Seahawks all live in deep blue liberal cities where a narrative against evil billionaires running off with their beloved teams in the dead of night would be highly effective. In a situation whereby the California cities stand in solidarity, the NFL would risk alienating 15 percent of its teams as well as their revenue. It is more in the NFL’s interests to find a solution that is not acrimonious.
Even if Oakland Ultimately Loses the Case, They Can Still Win the War
Stadium developers won’t want to put their money down on a stadium when there isn’t any assurance there will be a team to play in it. You know what creates uncertainty? Protracted litigation over who owns the team. Which is exactly what this would result in. If the city of Oakland were to seize the team and offer just compensation, then Mark Davis would have to sue to stop it. If he wanted to move the team, he would have to win a preliminary injunction at the very outset of the lawsuit preventing Oakland from taking the title to the Raiders.
The City of Oakland is in a position where it could deal hundreds of millions of dollars of damage against Mark Davis just by being recalcitrant, and could ultimately establish the new populist model for NFL team stewardship.
I could write a whole brief about the merits of a preliminary injunction — I won’t do that here — but suffice it to say that if Oakland won the motion, the move to Vegas would effectively be dead. If the city of Oakland were to win a preliminary injunction, then the team would de facto belong to Oakland until the court rendered a judgment to the contrary.
Even if Oakland were to lose the trial and Davis were to win, Oakland could add a significant amount of time by exhausting all their appeals, should the California Supreme Court, or even possibly the United States Supreme Court, decide to hear the case. Litigation through appeals could take as long as three to five years. Who would want to plop down the better part of one billion dollars in the face of such uncertainty? Not even the most idiotic of billionaires or bankers would do such a thing. The money would get pulled, and suddenly, Mark Davis wouldn’t have a date to his Vegas prom. And all the while Davis’s team would still be playing in a city that hates him and could easily boycott him. No jersey sales, no merch, no sporadic ticket sales — the $300 million a year in revenue would crumble.
The City of Oakland is in a position where it could deal hundreds of millions of dollars of damage against Mark Davis just by being recalcitrant, and could ultimately establish the new populist model for NFL team stewardship.
Some have characterized Davis’s attempted money grab from Oakland as bullying. I am inclined to agree. It’s time for Oakland mayor Libby Schaaf to flex some muscle for her city. Its time for Schaaf to use her powers to seize control of an Oakland institution before a bully billionaire rips it out of the city by its roots. It’s time to revolt.
Footnotes:
- Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2422 (2015), Emphasis mine.
- Estate of Graham v. Sotheby’s, Inc., 178 F. Supp. 3d 974, 992 (C.D. Cal. 2016. The court said something similar about the definition of “property” in Kremen v. Cohen, (337 F.3d 1024, 1030 (9th Cir.2003).
- Berman v. Parker, 348 US 26.
- A trust is defined as “an entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the trust). Most trusts are founded by the persons (called trustors, settlors and/or donors) who execute a written declaration of trust which establishes the trust and spells out the terms and conditions upon which it will be conducted.”
