Campy's Editorial Page

Just the facts....

A look at the county's lawsuit against the Bengals.

April 2004

By: Matthew McGowan

    As most of you know, Hamilton County Commissioners Todd Portune & Phil Heimlich are pushing the County to file an antitrust lawsuit against the NFL. The suit claims that the NFL and the Bengals used unfair market power to negotiate a favorable stadium deal here in Cincinnati. This claim is all but identical to a claim made in St. Louis after the Rams moved there from Los Angeles. That suit failed, as I believe this one is destined to do as well.

Check out the truth on the Poutune-Heimlich lawsuit

(Source: http://www.bengals.com/2004misc/pbsfacts.htm)

True or False: The federal judge found that the Bengals and the NFL used monopoly power to illegally secure a new stadium and lease agreement from Hamilton County.

     FALSE – The Bengals and NFL did not break antitrust laws and did not illegally secure Paul Brown Stadium and the lease agreement. The federal court merely allowed the case to advance beyond the dismissal stage, but this claim against the NFL has been rejected by a federal court in St. Louis once more information was put before the court.

True or False: The NFL used its monopoly power to extort taxpayers to pass the sales tax and build a new stadium for the Bengals.

    FALSE – A record turnout of Hamilton County citizens overwhelmingly voted in favor of financing stadia to keep professional sports in Cincinnati. Voters instead could have chosen not to increase the sales tax or to direct tax dollars to parks, transportation systems, or other entertainment facilities.

True or False: Todd Portune voted to support the existing Paul Brown Stadium lease agreement that he now wishes to sue over.

    TRUE - On January 31, 1998, Cincinnati City Council (including Portune) voted 8-0 (Heimlich was absent due to illness) to transfer city-owned land to Hamilton County so Paul Brown Stadium can be built under the terms of the Bengals-County Lease Agreement. They did not make any antitrust claims or calls for renegotiation of current terms at that time.

True or False: The Bengals lease is the “easily the most one sided deal in sports history, or close to it” as stated by Phil Heimlich in the 3/16/04 Cincinnati Post.

    FALSE – The Cincinnati Enquirer described the lease on September 12, 1996 with the headline “Team’s Stadium Pact in Middle of NFL Pack”. The Paul Brown Stadium Lease Agreement is far less financially generous then the Baltimore deal that the Bengals turned down in order to keep team in Cincinnati (this is the same deal that Art Modell accepted and then moved the Cleveland Browns). While initially the Lease Agreement signed with Hamilton County boosted gross revenues for the Bengals into the top half of the NFL, the fact is new leases signed by NFL teams with their own new stadiums have resulted in the Bengals now ranking in the bottom quarter of the 32 NFL teams in gross revenues. 

True or False: Hamilton County did not have experienced lawyers negotiating with the Bengals.

    FALSE - The Lease was negotiated by experienced industry experts from the legal world (Chicago law firm of Piper & Rudnick) and the financial world (Philadelphia finance firm Public Financial Management), in addition to the Hamilton County Prosecutor’s Office. The County spent over $1.2 million for these professional services.

True or False: The County Commissioners have a fiduciary responsibility to sue the Bengals after US District Judge Spiegel refused to dismiss the lawsuit.

    FALSE - Commissioners Heimlich and Portune are wrong in their analysis that a possible lawsuit only offers a positive upside – that the taxpayers will be no worse off after bringing this action. What they fail to consider is that, by bringing this ill-conceived lawsuit that will fail, they are putting taxpayers at risk for considerable financial damages, and that a failed lawsuit will require Hamilton County to reimburse the NFL for millions of dollars in legal fees. If they were truly interested in their fiduciary responsibility, they would not sue the NFL, but would let stand a legally negotiated lease.

True or False: Hamilton County must have a strong antitrust case since federal district Judge Spiegel refused to dismiss the case.

    FALSE – Judge Spiegel had to assume that the facts were as claimed in the complaint. A similar federal lawsuit was dismissed in St. Louis in 1997.

True or False: Todd Portune is trying a sleight of hand by claiming the Bengals are responsible for the County’s financial downturn.

    TRUE – The Ohio First District Court of Appeals unanimously dismissed Portune original suit, and the Cincinnati Enquirer 3/14/04 editorial stated, “The County’s deal with the Bengals was generous, but it's not the Bengals' fault that stadium sales tax revenues have been falling short of yearly growth projections. And it wasn't the Bengals' fault that the $450 million stadium complex was moved farther west than originally considered, adding $70 million in costs from buying private land. It wasn't the Bengals' fault that stadium construction cost overruns added $50 million.”

True or False: The public supports Portune and Heimlich in wanting to sue the Bengals and NFL for monetary damages eight years after the stadium vote.

    FALSE - The Cincinnati Enquirer opposed the lawsuit in its 3/14/04 editorial (“Bengals Lawsuit is Wrong Play”). And the Enquirer poll on Cincinnati.Com shows the following results as of 12 Noon on 3/23.

True or False: The Bengals are threatening to leave Cincinnati if Hamilton County voids the lease.

    FALSE – The Cincinnati Bengals have not threatened anything. It is the Hamilton County Commission who threatened to sue the NFL. In addition, the Portune complaint seeks to make the lease voidable, which could start the stadium process all over again. The Bengals very much oppose litigation and have asked the County not to pursue this direction.

True or False: Todd Portune was told by the Ohio Ethics Commission that he could not legally vote to have Hamilton County get involved in suing the Bengals.

    TRUE – The Ohio Ethics Commission warned Todd Portune that he would benefit from Hamilton County taking over his personal claims against the NFL and that voting on this issue would violate Ohio Ethics laws. Nonetheless, on March 10, 2004, Portune voted.

True or False: The Bengals refused to accept an $80 million loan from the NFL that would have helped fund the stadium while lessening the expense to Hamilton County.

     FALSE – the NFL G-3 Loan Fund was established in 1999 – two years after the Paul Brown Stadium Lease was signed – to help build new stadiums in large markets. Under NFL rules, the G-3 Loan Fund is not available for existing stadiums.

True or False: Suing the Bengals and NFL will make it easier for our community to complete the Banks development plan on the riverfront.

    FALSE – Litigation stands to cost millions of dollars and threatens future development on the Banks while Hamilton County sues one of its anchor tenants. If you were a developer, would you want to do business with Hamilton County if you knew they might sue you eight years after you reached a legal agreement with them? One only has to look across the river from the stadium and see how development is constructively done. Every dollar wasted on frivolous litigation is another dollar not available to fulfill the vision this community embraced in 1996.

    When Hamilton County voted in 1996 and 62% supported the sales tax to build the new stadiums, it was a vote for future progress; a vote to end the fighting that was keeping our community stagnant while other communities across the nation and in this region were improving their quality of life. The Portune-Heimlich lawsuit threatens to take us backward rather than forward.

    Face it, this lawsuit is destined to fail, just as the suit in St. Louis did, and local taxpayers will again be bilked out of millions of dollars.  And for what?  What message will that send locally and nationally to businesses we are trying to lure (or keep) downtown?  Not a positive one, I can tell you that, and this city doesn't need anymore negative press.

    Cincinnati doesn't need years of ugly litigation with a major tenant/attraction when we are trying to develop the central riverfront, especially when it is the city and county governments' fault we are in this mess to begin with.  For the good of all involved (especially city and county taxpayers), we need to move on.

Additional editorials opposing the Portune-Heimlich lawsuit against the NFL and the Bengals:

Bengals lawsuit is wrong play

Bengals suit would fail, hurt all around

Bengals Lawsuit: Too Risky

Hamilton County Auditor Dusty Rhodes Guest Editorial

Let your voice be heard:

Contact the County Commissioners by email:

todd.portune@hamilton-co.org

phil.heimlich@hamilton-co.org

Contact the Cincinnati Enquirer Letters to the Editor:

http://www.enquirer.com/editor/letters.html

Vote in the Cincinnati Enquirer survey on Cincinnati.Com:

http://www.enquirer.com/editions/2004/03/13/loc_nflsuit13.html

(Source: http://www.bengals.com/2004misc/pbsfacts.htm)

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