How Seattle Will Beat Bennett and Stern

The News-Tribune has a pdf of the 54-page pre-trial order for Seattle v. Bennett.

The order is basically an executive summary of the trial--it includes a list of factual assertions by each side (with accompanying objections), a list of witnesses at the trial and what they'll testify to, and a list of evidence to be introduced at trial.

At the front is this basic summary of the case:

CLAIMS AND DEFENSES
The City will pursue the following claim:
1. A declaratory judgment that the City is entitled to specific performance of Article II of the Premises Use & Occupancy Agreement (“Lease”), the Professional Basketball Club’s (“PBC’s”) contractual obligation to schedule and play all Seattle SuperSonics (“Sonics”) home games at KeyArena through the 2009-10 National Basketball Association season.

PBC will pursue the following affirmative defenses:
1. The City has unclean hands.
2. The City has an adequate remedy at law.
3. Specific performance would impose an undue hardship on PBC.

The city's case will depend on undermining Bennett's defenses.

Let's further examine those three defenses:

1. The "unclean hands" defense is a reference to Seattle's attempts to get a local buyer for the team. Seattle will argue that this is a perfectly legitimate activity for a city to engage in.

2. The "adequate remedy at law" refers to monetary damages Seattle could extract as a penalty. Seattle will argue that there is no possible monetary replacement--their expert witness, renowned sports business expert Andrew Zimbalist, will testify that there are "substantial intangible benefits to having a local sports team, but that these benefits are difficult to quantify.

3. The "undue hardship" defense is a standard one is these types of cases. Typically, courts will not force a party to do something if it will create an "undue hardship." It's most common in bankruptcy cases--if you go really deep into debt, the court will let you go into bankruptcy if paying the loans will cause "undue hardship." Thing is, there's no standard definition of "undue hardship." It's really up to Judge Pechman. Bennett will likely try to show that his organization will suffer massive losses if forced to finish up in Seattle. Seattle will argue that a) they knew about the lease when they bought the team, and b) that Bennett and his partners are wealthy enough to absorb any losses they'll incur.

Here's a place where David Stern seems to have hurt Bennett's case. In the press conference after the NBA approved the Sonics' move to OKC, Stern said: "...this team is destined to lose $30 million a year there. They are prepared to lose it for two more years if that's what the city insists upon exacting."

Bennett will have a tough time arguing that those monetary losses represent an "undue hardship" if David Stern says they are "prepared to lose it."

I'm not a lawyer, and I'm a total homer. But Bennett's defenses look pretty thin to me.