When a team relocation is announced, the move will mean heartbreak for some sports fans, but it also offers the opportunity to build for others. Former Cleveland Browns placekicker and offensive tackle Lou Groza compared his team’s relocation to a fire that “has just burned out. And all you’re left with is ashes.” Excitement or dismay aside, what do these moves mean for the teams’ intellectual property?
In 1995, then-Browns owner Arthur “Art” Modell announced that he would be moving the beloved Cleveland Browns to Baltimore. The response was swift and unforgiving—advertisers pulled their ads from games, player and coach appearances on radio programs were canceled, and Mayor White remarked, “No team, no peace.” When the move was finalized, that same mayor noted that the situation was akin to “a kick in the teeth” because, after all, the Browns had been a Cleveland staple since 1945 and its fans had been unremittingly loyal through it all. It was against this backdrop that the Cleveland Browns faced a series of legal challenges from the city of Cleveland and fans alike. Not only was the team subject to a breach of contract dispute concerning the stadium’s lease agreement, but there were also efforts to keep the team’s trademarks in Cleveland. In the end, the parties dropped the lawsuits and, in an unprecedented move, agreed to allow the team’s name, history, records, and intellectual property to remain in Cleveland. The Browns were “reactivated” in 1999 through expansion and continue to play with the same brown and orange colors they once wore.
While Cleveland’s efforts were not replicated often, the state of Minnesota took it a step further and in 2006, enacted into law a provision that stated, among other things, that the lease or use agreement of its ballpark “must provide that the team and league will transfer to the state of Minnesota the Minnesota Twins’ heritage and records, including the name, logo, colors, history, playing records, trophies, and memorabilia in the event of any dissolution or relocation of the Twins franchise.”
When the Seattle SuperSonics moved to Oklahoma City in 2008, one of the lawsuits surrounding the relocation presented a unique compromise—Professional Basketball Club, LLC (owner of the Seattle SuperSonics) agreed not to use the “‘Seattle Sonics/Supersonics’ team name or any logos, symbols, designs, trade dress (including, but not limited to, team colors) or other indicia associated with the Seattle Sonics/Supersonics (“the Intellectual Property”) for purposes of identifying its NBA team in game competition, marketing, promotional or other similar purposes following relocation” (emphasis added). However, if the National Basketball Association approved a new team to play in a renovated KeyArena, the pending litigation was resolved, and there was a new team in Oklahoma City, then PBC would transfer the rights, title, and interest of that Intellectual Property to the new owner. Although the IP would transfer, the franchises would “share” history—that is, banners, retired jerseys, records, and trophies would be attributed to both the new OKC team and, should Seattle acquire a team, to that one as well.
In what has certainly been an eventful year for sports, the National Football League and its fans have seen three teams relocate— the St. Louis Rams returned to Los Angeles (2016), the San Diego Chargers similarly returned to Los Angeles (2017), and the Oakland Raiders moved to Las Vegas (2019). Are we likely to see challenges to keep or transfer teams’ intellectual property again in this era of “franchise free agency?” Will they take the form of legal challenges, as in the case of the Cleveland Browns and the Seattle SuperSonics? Or will states seek to preempt this by enacting statutes protecting the intellectual property, as in the case of the Minnesota Twins? Or will parties creatively raise an eminent domain action to “seize a moving franchise’s trademarks given the ‘propertization’ of trademarks and other forms of intellectual property?” Whether it comes from the cities or the fans, the fact remains that this intangible form of property holds an unquantifiable value for the teams’ loyal fans. Of course, it is going to take more than preemptively filing a trademark application to prevent the new team from using it (it did not work for the then Los Angeles Rams in 1999 and it did not work for the Oakland Raiders in 2016).
Milagros Villalobos Navas is a J.D. candidate, 2018, at NYU School of Law.