Friday Frivolity: Cubs Preseason Gets Off to a Solid Start with a Court Win

Wrigley Field, with Rooftop Seating in foreground,
By Sea Cow – CC BY-SA 4.0, 

It’s April, and so I’m still following my team-since-birth, the Chicago Cubs. Most years, the season is effectively over by June, and then I just follow individual Cubs players, trying to see if there is a core around which they can build a championship team, perhaps some time this century.

The Cubs would not be the Cubs without Wrigley Field, but the field is only medium-sized by the standards of Major League Baseball stadiums, and there has long been a business, which has accelerated since the 1980s, of rooftop seating beyond the bleachers that overlook Wrigley’s outfield.

As recounted in a January opinion in Chicago Cubs Baseball Club, LLC v. Dunican, the Cubs entered into a license agreement in 2004 with the rooftop seating owners to allow the latter to sell rooftop seating and make use of Cubs’ trademarks. According to Michael McCann, writing on Sportico, the licensing agreement required that the rooftop businesses “share about 17% of their revenue from out-of-stadium rooftop seats and 11% of billboard revenue with the Cubs.” When the term of that agreement ended, the Cubs renewed it   with all of the other parties offering rooftop seating except for Mr. Dunican. The Cubs have alleged that the latter has continued to use the Cubs’ trademarks and has continued to sell seats to view Cubs games from his property. The Cubs sued Mr. Dunican and his business entities.

The January opinion is just a pre-season game. Defendants moved to dismiss the claim pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue. Defendants claim that the dispute must be arbitrated, pursuant to the parties’ now-expired licensing agreement. The Court sided with the Cubs, holding that arbitration is not a proper basis for a 12(b)(3) motion. The Court refused to construe the motion as one based in forum non conveniens, as that argument only appeared in Defendants’ reply brief.  

It is not clear why Defendants did not file an ordinary motion to compel arbitration. One might think that the agreement to arbitrate would lapse with the original licensing agreement, but that will depend on the wording of the arbitration clause. Such clauses are often broadly worded to sweep into arbitration all claims related to the agreement. They also tend to provide that threshold issue relating to the scope of arbitration go to the arbiter. No word yet on Mr. Dunican’s next move.

It’s a solid pre-season win for the Cubs. They had a very successful pre-season in the Cactus League. Then they got swept by the Dodgers in Tokyo in March. It doesn’t seem fair that those games should count. Go Cubs Go.