Opposition Brief — Triple-A Baseball Club Associates v. Northeastern Baseball, Inc.

No. 87-1178

in the

Supreme Court of the United States

Ocroser TERM, 1987

TRIPLE-A BASEBALL CLUB ASSOCIATES,

TRIPLE-A BASEBALL CLUB OF MAINE, INC.,

anv JORDAN L. KOBRITZ,

PETITIONERS,

~ Dv.

NORTHEASTERN BASEBALL, INC., and

MULTI-PURPOSE STADIUM AUTHORITY

OF LACKAWANNA COUNTY,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JOINT BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Tuomas B. WHEATLEY *

Joun A. Hopson

PERKINS, THOMPSON, HINCKLEY

& Keppy

One Canal Plaza

P.O. Box 426

Portland, ME 04112

ay (207) 774-2635

Blanchard Pres, Inc. Bostom, Mass. — Law Printers [617] 426-6690

I

QUESTIONS PRESENTED

The petition seeks to raise an issue which respondents

believe may more properly be stated as follows:

Whether, in determining that under Maine Law specific

performance was the appropriate remedy for breach of a con-

tract for sale of a Triple-A baseball franchise without remand-

ing to the District Court for a decision on that issue, the Court

of Appeals so far departed from the accepted and usual course

of judicial proceedings as to call for exercise of this Court’s

power of supervision.

RULE 28.1 LISTING

Respondent Northeastern Baseball, Inc. is a non-profit,

non-stock Pennsylvania corporation, which has a self-

perpetuating board made up of community volunteers who

reside in Lackawanna County or Luzerne County, Penn-

sylvania.

Respondent Multi-Purpose Stadium Authority of Lacka-

wanna County is a public authority of the Commonwealth of

Pennsylvania. Its members are appointed by the Board of

County Commissioners of the County of Lackawanna, Penn-

sylvania. The Multi-Purpose Stadium Authority of Lackawan-

na County is under common control with the Northeastern

Pennsylvania Sports Development Corporation, a non-profit

stock corporation with 2 shares of stock, in that one share is

owned by the County of Lackawanna, Pennsylvania. The

other share is owned by the County of Luzerne, Pennsylvania.

Ill

TABLE OF CONTENTS

Page(s)

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Appendix (THE Distrricr Court’s OrpeR VEsTING TITLE

A ee ee 11

TABLE OF AUTHORITIES

Cases

Bidwell v. Long, 14. App. Div.2d 168, 218 N.Y.S.2d 108

SN Rohe oa has wen sir koa ee Seba ees 9

Cochrane v. Szpakowski, 355 Pa. 357, 49 A.2d 692

ESET MSIE Pa ee ar ona a a 9

DeBauge Brothers, Inc. v. Whitsitt, 212 Kans. 758, 512

ey nits ay Chae aS hake ee ss 3 9

Eisenbeis v. Shillington, 349 Mo. 108, 159 S.W.2d 641

ee ee ek ei cs x adn Uae sp oe 8

Hogan v. Norfleet, 113 So.2d 437 (Fla. Dist. Ct. App.

ell a Ps s\ecax'¥ xe se eWA x ne 8 as 9

Hull v. Sturdivant, 46 Me. 34 (1858).................. 8

Laclede Gas Co. v. Amoco Oil Co., 522 F.2d 33 (8th Cir.

er a rg ek do ip bE x AGO 0 aioe 7,8

Leasco Corp. v. Taussig, 473 F.2d 777 (2d Cir. 1972) 9

Rockhill Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d

ee eg he clay ka Gas ied dws ves 8

Telegraphone Corp. v. Canadian Telegraphone Co., 103

ee I, WT Os cece scenes cea 8

IV

Page(s)

Triple-A Baseball Club Associates v. Northeastern Base-

ball, Inc., 832 F.2d 214 (1st Cir. 1987)... 5, 7,9, 9-10n.4

United States v. Harrison County, Mississippi, 399 F.2d

485 (5th Cir. 1968), cert. denied, 397 U.S. 918 (1970). 7-8

W: ay v. Harris, 350 So.2d 409 (Ala. 1977)...........-. 8

Treatises

Specific Performance of Agreement for Sale of Private

Franchise, 82 A.L.R.3d 1102 (1978)................ 9

13 J. Moore, H. BENDIx AND B. RINGLE, Moore's Federal

Practice { 817.01[3] (2d ed. 1985)............... 10 n.d

Rules

U.S. Supreme Court Rule 17.1fa)... ... 66. bse esc eeen 7

In the

Supreme Court of the United States

OcroBER TERM, 1987

No. 87-1178

TRIPLE-A BASEBALL CLUB ASSOCIATES,

TRIPLE-A BASEBALL CLUB OF MAINE, INC.,

AND JORDAN I. KOBRITZ,

PETITIONERS,

Dv.

NORTHEASTERN BASEBALL, INC., and

MULTI-PURPOSE STADIUM AUTHORITY

OF LACKAWANNA COUNTY,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JOINT BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

aA

Statement of the Case

There are no constitutional provisions, treaties, statutes,

ordinances or regulations involved in this case. See Petition

(“Pet.”) at 3. This case arises from the refusal of Petitioners

(Triple-A Baseball Club Associates, and its general partners

2

Jordan I. Kobritz and Triple-A Baseball Club of Maine, Inc.)

to convey a Triple-A baseball franchise to Respondent North-

eastern Baseball, Inc. (“NBI’’) in accordance with an | Agree-

ment dated September 3, 1986.'

The September 3 Agreement was the culmination of an

8-year search by John McGee, President of NBI, to acquire a

Triple-A baseball franchise for the Scranton, Pennsylvania

area. The acquisition of Petitioners’ Triple-A franchise was

particularly important to NBI because of the rarity with which

such Triple-A franchises are available for sale. Indeed the un-

contradicted testimony of the President of the International

League of Professional Baseball Clubs (the league to which

Petitioners’ Triple-A franchise belonged) was that there had

been only one transfer of an International League franchise in

the last ten years and that involved the transfer to Petitioners

of the franchise at issue in this case.

Under the September 3 Agreement (Pet. App. 35-39), Peti-

tioner Triple-A Baseball Club Associates (the “Limited Part-

nership”) contracted to convey its Triple-A franchise to NBI

for $2.4 million ({{ 1 & 2), and NBI contracted to convey its

Double-A franchise to the Limited Partnership for $400,000

({{ 3 & 4), but the transfer of the Double-A franchise was sub-

ject to the approval of the Eastern League ({ 9). If the Eastern

League refused to approve the transfer, the agreement for the

sale of the Triple-A franchise was to remain in full force and

effect at a reduced price of $2 million ({ 5). A separate side

agreement was entered into between N8I and Petitioner

Kobritz (Pet. App. 40-42), which provided that in the event

the Eastern League failed to approve the transfer of NBI’s

Double-A team to the Limited Partnership, it would be

transferred to Kobritz individually for $500,000 ({ 1), and NBI

' NBI assigned its rights under the September 3 Agreement to Respondent

Multi-Purpose Stadium Authority of Lackawanna County, but reserved the

right to enforce the Agreement.

3

and Kobritz would enter into a consulting agreement which

would pay Kobritz the same amount ($500,000). The side

agreement further provided that in the event the Eastern

League denied approval of the transfer of the Double-A fran-

chise to Kobritz, Kobritz would still be paid the consulting fees

reduced (but not below $400,000) by the amount of any

indemnification damages NBI is required to pay the Eastern

League for acquiring the Triple-A International League fran-

chise ({ 3) (as a result of the Eastern League’s claim to Scran-

ton as Eastern League territory).

The Eastern League refused to approve the transfer of NBI’s

Double-A franchise, and instead made a non-negotiable

demand that NBI relinquish its Double-A franchise to the

Eastern League in satisfaction of its claim that Scranton was

Eastern League territory.2 NBI appeared at the scheduled

closing under the September 3 Agreement, and was ready, will-

ing and able to pay the $2 million for the Triple-A franchise.

Petitioners, however, refused to convey the Triple-A franchise

on the pretext that NBI had breached the September 3 Agree-

ment by being unable to transfer its Double-A franchise.

On the same day as the closing, Petitioners filed their

original Complaint for declaratory judgment against NBI.

NBI counterclaimed for a declaratory judgment and for

breach of contract, and sought, inter alia, an order that Peti-

tioners specifically perform their obligations in accordance

with the September 3 Agreement and transfer the Triple-A

franchise to NBI.

The case was tried to the District Court jury waived. The

findings of fact in the District Court’s Opinion (Pet. App.

58-94) detailed the reasons for its conclusion that NBI “acted

in good faith throughout the transaction” (Pet. App. 102) and

? Petitioners’ brief contains several inaccuracies about the events surround-

ing the Eastern League’s refusal to approve the transfer and the communica-

tions between NBI and Kobritz about the Eastern League's refusal. Since

these inaccuracies do not directly bear on the appropriateness of this Court

granting a writ of certiorari, Respondents will not address them in this brief.

4

“attempted in good faith and without pretense to obtain

Eastern League approval of the transfer” (Id.). However, the

District Court concluded that the “refuse to approve”

language in paragraph 5 of the Agreement was ambiguous

(Pet. App. 103), and then read into the agreement an implied

condition precedent that the refusal to approve be “on the

merits” (Pet. App. 105-06), apparently in the form of “a

formal vote by the league directors disapproving the sale on

the merits” (Pet. App. 103). The District Court declared that

the September 3 Agreement (Pet. App. 35-39) terminated by

its own terms in accordance with paragraph 14 of the agree-

ment on the failure of an implied condition precedent (Pet.

App. 47 and 106). In doing so, the District Court simply

misread the September 3 Agreement and reversed the effect of

its language in favor of the drafters (the Petitioners), which

would entitle them to keep the Triple-A franchise in Maine

and avoid their obligations to convey it to NBI.*

In a detailed decision, the U.S. Court of Appeals for the

First Circuit reversed the District Court’s decision and held

that “by rewriting the contract between the parties,” the

District Court “violated the basic principles of contract law.”

> The district Court failed to recognize thai the only conditions precedent

were those specified in paragraph 10. Paragraph 10 (Pet. App. 38) specified

three conditions precedent: (A) approval by NBI’s Board of Directors by

September 11, 1986, (B) approval of the transfer of the Triple-A franchise to

NBI by the International League by September 11, 1986, and (C) approval

by the Limited Partners of Triple-A Baseball Club Associates hyeptember

11, 1986. Paragraph 14 (Pet. App. 39), upon which the District Court

erroneously relied in declaring that the agreement terminated by its own

terms, provided that in the event two out of three of those “foregoing condi-

tions” shall not have occurred (the exception being approval by NBI's Board),

then the deposit with accrued interest shall be refunded to NBI, and

thereafter the Agreement shall terminate. Paragraph 14 also provided that in

the event those two conditions specified in Paragraph 10, other than

approval by NBI’s Board, were met, the deposit would be retained as

liquidated damages. All three of the conditions precedent of Paragraph 10

were met, and consequently the agreement could not have terminated by its

own terms under Paragraph 14.

5

Triple-A Baseball Club Associates v. Northeastern Baseball,

Inc., 832 F.2d 214, 220 (ist Cir. 1987); Pet. App. 13-14.

Specifically, the Court of Appeals held that the District Court

erred in finding the September 3 Agreement to be ambiguous

and in reading into that agreement an implied condition

precedent:

We do not find the phrase “refuse to approve the sale”

ambiguous. Unlike the District Court, we think the term

is clear and does not need to be defined. The words

“refuse to approve” are only susceptible of one meaning;

they mean what they say....

[The District Court] found, based on extrinsic evidence

that the term [refuse to approve] had to be interpreted to

mean there was an implied-in-fact condition precedent

that the refusal had to be “on the merits.” With due

respect, we think the phrase, “on the merits” not only

changes the sparse plain language of the contract but is

itself ambiguous.

832 F.2d at 221; Pet. App. 17.

The Court of Appeals consequently concluded that the

Agreement should be enforced as it was actually written,

which would result in the transfer of the Triple-A franchise to

NBI. After noting that it was unable to find any Maine case

deciding the precise question of whether specific performance

is appropriate with respect to the sale of a franchise (832 F.2d

at 223; Pet. App. 21), the Court of Appeals carefully examined

Maine law on specific performance (832 F.2d at 222-23; Pet.

App. 20-21) as well as the unanimity of the relevant law in

other jurisdictions (832 F.2d at 223-24; Pet. App. 21-24), and

determined that specific performance was the appropriate

remedy for breach of a contract for sale of a baseball franchise

(832 F.2d at 224-25; Pet. App. 24-26). Accordingly, the Court

of Appeals remanded the case to the District Court with direc-

tions to issue a decree of specific performance ordering that

—E————————

6

“upon payment of two million dollars, Triple-A Baseball Club

Associates shall forthwith convey all of its right, title and

ownership in its baseball franchise in the International League

to Northeastern Baseball, Inc.” 832 F.2d at 228; Pet. App.

34-35. On November 3, 1987, Petitioners moved for a stay of

the Court of Appeals’ mandate pending petition for writ of

certiorari, which the Court of Appeals denied.

The District Court by Order Entering Judgment on Re-

mand dated November 24, 1987, entered judgment on NBI’s

counterclaim and ordered that the Petitioners perform the

September 3 Agreement. Pet. App. 132-34. By Supplemental

Order dated January 4, 1988, the District Court ordered the

closing to take place at 9:00 a.m. on January 19, 1988. Pet.

App. 137-38. At the closing on January 19, 1988, Petitioners

refused to convey the team as required by the District Court’s

Order. Therefore, by Order Vesting Title dated January 20,

1988, the District Court, pursuant to its power under

Fed.R.Civ.P. 70, transferred the title to the Triple-A franchise

to NBI. The Order Vesting Title, which was issued after Peti-

tioners’ petition was filed in this Court, is reproduced as an

appendix to this brief, infra at 11.

Summary of Argument

Petitioners seek to invoke this Court’s certiorari jurisdiction

because they disagree with the Court of Appeals’ decision on

Maine Law on the issue of the appropriateness of specific per-

formance for the breach of a contract for sale of a Triple-A

baseball franchise. Although Petitioners’ real complaint is

with the Court of Appeals’ determination of the substantive

State law on this issue, in order to bring their appeal within

the requirements for a writ of certiorari, Petitioners’

recharacterize the issue as the Court of Appeals’ failure to

remand this case to the District Court for determination of the

appropriateness of specific performance as a remedy. How-

ever, in light of the Court of Appeals’ careful analysis of Maine

7

Law as well as the unanimity of the relevant case law of other

jurisdictions, and in light of the record and findings of fact

which were before the Court of Appeals, it is patently clear

that the Court of Appeals did not depart from the accepted

and usual course of judicial proceedings so as to require inter-

vention by this Court through the use of its certiorari jurisdic-

tion. Indeed, rather than departing from judicial precedent,

the Court of Appeals’ decision comports with the case law in

this area as well as with principles of judicial economy.

Argument

The decision by the Court of Appeals is not in conflict with

any decision of another court of appeals on the same matter;

no federal question was involved in this case; and the Court of

Appeals did not depart from the accepted and usual course of

judicial proceedings nor did it sanction such departure by the

District Court. Respondents, therefore, respectfully submit

that this case does not warrant exercise of this Court’s certio-

rari jurisdiction. See Rule 17.1(a) of the Rules of this Court.

Petitioners’ sole stated basis for their Petition for a Writ of

Certiorari is their contention that the Court of Appeals’ direc-

tion to the District Court for an entry of specific performance

in this case was so far outside the bounds of accepted judicial

proceedings as to call for an exercise of this Court’s power of

supervision. Pet. at 3. There are several fatal flaws to that

argument.

1. The Court of Appeals followed the only other federal

court decision directly on point in this area. In directing the

District Court to enter a decree of specific performance

without first remanding that issue to the District Court for a

determination, the Court of Appeals followed the decision of

the Court of Appeals for the Eighth Circuit in Laclede Gas

Co. v. Amoco Oil Co., 522 F.2d 33, 38-40 (8th Cir. 1975).

Triple-A Baseball Club Associates, 832 F.2d at 222; Pet. App.

20. A similar result was reached in United States v. Harrison

8

County, Mississippi, 399 F.2d 485 (5th Cir. 1968), cert.

denied, 397 U.S. 918 (1970) (Circuit Court reversed trial

court’s interpretation of contract and remanded with direc-

tions to enforce contract terms by injunction). See also Wray

v. Harris, 350 So.2d 409 (Ala. 1977).

Petitioners cite no authority contrary to Laclede; there is no

split of authority in the circuits. Instead Petitioners seek to

discredit the Court of Appeals’ reliance on Laclede by stating

that “Laclede, which hinged on a peculiarity of Missouri law,

is simply inapplicable to this case ....” Pet. at 15. However,

_ an examination of Missouri law reveals that the principles

governing specific performance under Missouri law are very

similar to the principles which govern under Maine law. Both

Missouri and Maine recognize that specific performance is

within the discretion of the Court, but this discretion is not

unbounded since it must be exercised within the constraints of

the doctrines and principles of equity. Compare Eisenbeis v.

Shillington, 349 Mo. 108, 159 So.2d 641 (1941), and Rockhill

Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d 9 (1932), with

Telegraphone Corp. v. Canadian Telegraphone Co., 103 Me.

444, 69 A. 767 (1908), and Hull v. Sturdivant, 46 Me. 34, 41

(1858).

Moreover, like Missouri, Maine recognizes there are certain

types of contracts for the breach of which specific performance

will routinely be decreed. Hull v. Sturdivant, 46 Me. 34, 41

(1858) (“Where a contract, respecting real property, is in its

nature and circumstances unobjectionable, it is as much a

matter of course for a Court of Equity to decree a specific per-

formance, as it is for a Court of Law to give damages ... .”)

2. Significantly, Petitioners cite no authority for the

proposition that specific performance is not the appropriate

remedy for breach of a contract to sell such a franchise, as all

authority is to the contrary. The Court of Appeals simply

determined that contracts for sale of a baseball franchise

9

(much like contracts for sale of real property) come within the

category of cases in which specific performance is routinely

decreed. In coming to this determination, the Court of

Appeals followed unanimous case law precedent.

As the Court of Appeals correctly noted, every court which

has addressed the issue of the appropriateness of specific per-

formance of a contract for sale of a franchise has concluded

that specific performance is the appropriate remedy. Triple-A

Baseball Club Associates, 832 F.2d at 223; Pet. App. 21-22,

citing Specific Performance of Agreement for Sale of Private

Franchise, 82 A.L.R.3d 1102 (1978). Thus, in predicting that

Maine law would follow the other jurisdictions which had

addressed the issue, the Court of Appeals was certainly not

departing from the usual course of judicial conduct. Rather its

decision on this issue placed it squarely in line with the univer-

sal case law precedent in this area. See, e.g., Leasco Corp. v.

Taussig, 473 F.2d 777, 785-786 (2d Cir. 1972); DeBauge

Brothers, Inc. v. Whitsitt, 212 Kans. 758, 512 P.2d 487,

489-490 (1973); Bidwell v. Long, 14 App. Div.2d 168, 218

N.Y.S.2d 108, 110 (1961); Hogan v. Norfleet, 113 So.2d 437,

439 (Fla. Dist. Ct. App. 1959); Cochrane v. Szpakowski, 355

Pa. 357, 49 A.2d 692, 694 (1946).

. 3. Furthermore, from the standpoint of judicial economy,

Petitioners’ argument makes no sense. The issue of the proper

remedy for a breach of the September 3 Agreement had been_

tried in the District Court and briefed at both the trial and ap-

pellate levels. Given the clearly unique nature of a Triple-A

franchise and the unanimous case law in this area, it would

have been an unnecessary use of scarce judicial resources for

the Court of Appeals to remand this issue to the District Court

and then wait for an appeal by the disappointed party in order

to render the eventual decision that specific performance was

the appropriate remedy.‘

* Petitioners’ primary argument against a decree of specific performance,

both at the trial and appellate level, was that NBI already owned a Double-A

franchise :.nd thus should be precluded from obtaining the Triple-A fran-

10

4. In the final analysis, Petitioners simply disagree with

the Court of Appeals’ assessment of what the Maine Supreme

Judicial Court would have decided if faced with the issue of

the appropriateness of specific performance when a contract

for the sale of a Triple-A baseball franchise has been breached.

The Petitioners’ disagreement with the First Circuit’s inter-

pretation of state law is not only unfounded, but even if cor-

rect would not be a proper basis on which to base a petition for

writ of certiorari.®

Conclusion

For the foregoing reasons, Respondents submit that the peti-

tion for a writ of certiorari should be denied.

Respectfully submitted,

THoMaS B. WHEATLEY *

Joun A. Hopson

PERKINS, THOMPSON, HINCKLEY

& KeEeppy

One Canal Plaza

P.O. Box 426

Portland, ME 04112

(207) 774-2635

Attorneys for Respondents

* Counsel of Record

chise. Pet. at 16 n.7. However, as the Court of Appeals noted, this argument

is way off base given the vast differences between a Double-A and a Triple-A

baseball franchise. Triple-A Baseball Club Associates, 832 F.2d at 224-225;

Pet. App. 25-26. Indeed, under Petitioneis’ argument an art collector could

not obtain specific performance of a contract to purchase a painting by Van

Gogh if he already owned a Norman Rockwell painting.

5 One basis for certiorari under the 1970 Rules was “Where a court of

appeals. . .has decided an important state or territorial question in a way in

conflict with applicable state or territorial law” (1970 Rule 19(1)(b) ), but

that basis for certiorari was eliminated by the 1980 Revision. 13 J. Moore,

H. Benpix AND B. RincLeE, Moore's Federal Practice { 817.01[3] at SC 17-8

(2d ed. 1985).

11

Appendix

U.S. DISTRICT COURT

PORTLAND, MAINE

RECEIVED & FILED

1988 JAN 20 PM 12:08

UNITED States District Court

District OF MAINE

TrIPLE-A BASEBALL CLUB ASSOCIATES,

JORDAN Kosnritz,

_and

TripLeE-A BAsEBALL CLuB

OF MAINE, INC.,

PLAINTIFFS,

Crivit No.

- 86-0331-P

NORTHEASTERN BASEBALL, INC.,

DEFENDANT.

- (Cases Conso.i-

TripLE-A BASEBALL CLUB ASSOCIATES, DATED BY

JORDAN Kosnritz, AGREEMENT)

and

TripLE-A BASEBALL CLUB -

OF MaIngE, INC.,

PLAINTIFFS,

Civit No.

86-0360-P

v.

INTERNATIONAL LEAGUE OF

PROFESSIONAL BASEBALL CLUuBs,

, DEFENDANT.

ORDER VESTING TITLE

By judgment entered on November 24, 1987, this Court

ordered the specific performance of the September 3 and

September 4, 1986 contracts between the parties in these cases

for conveyance of all plaintiffs’ right, title and ownership in

12

their franchise in the International League to Northeastern

Baseball, Inc. upon payment of the sum of two million dollars

($2,000,000.00). This transfer was to be in accordance with the

terms and provisions of the contract and of the opinion of the

Court of Appeals for the First Circuit in this matter, filed on

October 13, 1987. No conveyance took place and on January 5,

1988 a hearing was held on Defendant Northeastern Baseball,

Inc.’s Motion to Compel Compliance with Court Order. That

hearing resulted in an Order Supplementing Order Entering

Judgment on Remand, filed January 4, 1988, which ordered

the parties to the contracts to hold a closing at 9:00 a.m. on

January 19, 1988 to accomplish the conveyance of title

previously ordered by the Court.

At a hearing held this morning, January 20, 1988, the Court

learned through the representations of counsel for all parties,

that the closing and conveyance ordered by the court for

January 19, 1988, did not go forward because Plaintiffs

reserved from the bill of sale all rights, including territorial

rights, which Triple-A Baseball Club Associates may possess

under the National Association Agreement and the various

league constitutions. Although the status of territorial rights

was not resolved at the time of the Court’s hearing on January

4, the Court’s file in this matter now contains a letter dated

January 12, 1988, from counsel for Defendant International

League of Professional Baseball Clubs, and a-letter dated

January 11, 1988, by Harold M. Cooper, President of the Inter-

national League of Baseball Clubs, stating the League’s posi-

tion on territorial rights as an incident of ownership of a fran-

chise, which is based in part upon the undisputed provisions of

section 10.06(c) of the National Association Agreement.' The

letter of counsel states that

' The letter from Frank A. Ray, counsel for the International League,

represents that section 10.06(c) of the National Association Agreement pro-

vides:

Upon a League granting any person, firm or corporation member-

ship in its League for the purpose of operating a Baseball franchise in a

13

any transfer of membership or sale of a franchise in the

League which is approved by the League is subject to

maintenance of territorial rights associated with the fran-

chise. In other words, until such time as the subject fran-

chise leaves Old Orchard Beach, Maine, the ten mile

radius of territorial rights is retained by the owner of the

franchise and by the League.

The letter from Mr. Cooper to John McGee, dated January

11, 1988, confirms that

the International League has approved the sale of the

franchise to Northeastern Baseball, Inc., and its assignee

Multi-Purpose Stadium Authority. Our constitution per-

mits a member to operate within a city or area within the

circuit of this league which is known as the “franchise

territory.” In this case, Maine (Old Orchard Beach).

The court relies on these documents provided by the Inter-

national League because, as Charles Eshbach, President of the

National Association of Professional Baseball Leagues, Inc.,

has stated in a letter to Plaintiff Kobritz of January 19, 1988,

the issue of territorial rights has been determined by the

Executive Committee of the Association to be a matter not

within its jurisdiction “but rather. . .a matter to be handled at

the league level as a league matter.”

The Court hereby finds that the disputed territorial rights

are a legal incident of ownership of the subject franchise and

that they must be conveyed with the subject franchise under

the agreements of September 3 and 4.

Rule 70 of the Federal Rules of Civil Procedure provides the

Court with a procedure for enforcing an order for a specific

act which has not been completed within the time specified:

city, such a membership shall carry with it protected territorial rights

for the area within said city limits and within the ten (10) mile area

above referred to. Such rights shall continue during the life of said

membership.

14

“If the real or personal property is within the district, the

court. . .may enter a judgment divesting the title of any party

and vesting it in others and such judgment has the effect of a

conveyance executed in due form of law.”

The Court finds that the franchise in question is within this

district and that its orders for conveyance of that transfer on

January 19, 1988 have not been complied with.

Accordingly, is is hereby ORDERED that upon payment of

two million dollars ($2,000,000.00) by Defendant North-

eastern Baseball, Inc., by Noon tomorrow, January 21, 1988,

Plaintiff Triple-A Baseball Club Associates will be divested of

its unencumbered title, by force of this Order, in its franchise in

the International League of Professional Baseball Clubs, and

all right, title and ownership in the franchise, specifically

including territorial and all other rights which Triple-A

Baseball Club Associates may possess under the National

Association agreement and the various league constitutions and

by-laws, will be hereby vested in Northeastern Baseball, Inc.

This Order shall be effective to transfer title as aforesaid

upon filing with the Clerk of this Court by Owen W. Wells,

Esq., counsel for Northeastern Baseball, Inc., of an affidavit

reciting under oath that he has delivered to Plaintiffs’ counsel,

Keith A. Powers, Esq. a bank check in the amount of two

million dollars ($2,000,000.00) payable to Triple-A Baseball

Club Associates.

s/ Gene CARTER

GENE CARTER

United States District Judge

Dated at Portland, Maine this 20th day of January, 1988.

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is

1

pat

“7 ¥

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