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The lawsuit over moving the All-Star Game might be the worst I’ve ever seen

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No, that’s not hyperbole

Atlanta Braves v Philadelphia Phillies Photo by Rich Schultz/Getty Images

Back in April, Major League Baseball announced that it would be moving the 2021 Draft and All-Star Game from Atlanta to Denver in response to Georgia Governor Brian Kemp signing into law a host of new restrictions on voting rights in that state.

The backlash against that decision was swift, and, this being America, of course included a lawsuit filed earlier this month.

The Job Creators Network (JCN) intends to file suit in Manhattan on Tuesday, according to Fox Business, and will seek that the All-Star Game be returned to Atlanta or damages of not less than $100 million to be distributed to Atlanta businesses that JCN alleges were financially damaged by the decision.

MLB pulled the game out of Georgia following the state’s passage of a new voting law that critics charged was intended as a voter suppression measure and President Joe Biden compared it to racist Jim Crow laws.

You can read the Complaint here. The complaint alleges seven claims against both MLB and the MLB Players’ Association. Exactly two of those claims make sense, so we’ll start with those.

Basically, JCN alleges that MLB tortiously interfered with the contracts and economic expectancies for All-Star Game vendors for food and merchandise by moving the game to Denver. The law prohibits a third party from inducing a party to a contract into breaching that contract. That’s called “tortious interference with contract” or “tortious interference with prospective economic advantage.” (They’re technically different causes of action, but they’re close enough for our purposes that we can consider them together.)

We’ve talked about those causes of action before, and so I won’t reiterate them here. The problem is that, as JCN admits in its complaint, it’s not the vendor in question and not in privity with any vendors. In other words, JCN can’t succeed on its tortious interference claims because it’s not the damaged party. Those vendors possibly could, though.

Unfortunately, those are the claims in the lawsuit that make the most sense. JCN also brings a claim under Section 1983 of the Civil Rights Act, a statute near and dear to all of us who practice civil rights law. Basically, Section 1983 prohibits a person from depriving someone of their rights “under color of state law,” which is a fancy way of saying that to be actionable, the conduct had to be “state action” and the defendant a “state actor.” This is typically the case, for example, where a police officer deprives a suspect of rights by exceeding their authority - the cop is (usually) a state actor where on duty, and so the actions of that cop are deemed “state action.” Now, there are (rare) exceptions where a private entity can be deemed a state actor - for example, where the defendant is a company which runs a corporate town and therefore performs state functions. But there’s no real way that Major League Baseball was a state actor here. Certainly no state government compelled MLB to act, MLB wasn’t acting in concert with or in place of a state government., and the All-Star Game isn’t a state function. Moreover, because there is no right to an All-Star Game, even if MLB somehow was a state actor, there was no deprivation of a protected right. This cause of action is so absurd as to be sanctionable, frankly.

That’s not the worst claim in this complaint, however, That would be the very first count in the Complaint, which purports to request relief under 42 U.S.C. 1985, otherwise known as the Ku Klux Klan Act. That statute was passed to provide a private right of action to people attacked by white supremacists and the KKK after the Civil War. If you’re wondering how that relates to the All-Star Game, I’ll let JCN try to explain it. From the Complaint:

Between March 26 and April 2, 2021, Defendants plotted, coordinated, and executed a common plan and conspiracy to cancel the All-Star Game in Atlanta with the intent to injure and deprive residents and businesses of Atlanta, Georgia of their Constitutional rights protected under not only “equal protection of the laws” but also “equal privileges and immunities under the laws.”

This is, to be honest, a lot of drivel. First, there is no cognizable Constitutional right to an All-Star Game. Second, the doctrine of equal protection, which states that the government cannot treat people differently on the basis of immutable characteristics such as race, has absolutely nothing to do with the All-Star Game because (as we already referenced), MLB isn’t a state actor and there is no Constitutional right to an All-Star Game. Third, even assuming that wasn’t the case, JCN doesn’t have standing as pleaded to assert those claims on behalf of “residents and businesses of Atlanta.” This claim is a mess, and honestly isn’t legally coherent.

Also, in case you’re asking, no you’re not a state actor if you receive state money. MLB does receive a lot of government funding, but the law is well settled that state funding isn’t sufficient to turn you into a state actor for purposes of these statutes.

JCN here is represented by Howard Kleinhelder. If that name sounds familiar, that’s because Kleinhelder is currently representing Sidney Powell, the former attorney for Donald Trump whose baseless threats of a “kraken” lawsuit left her on the receiving end of a billion-dollar defamation lawsuit. Kleinhelder also seems to have had some difficulties filing his lawsuit correctly.

To be fair, those initial difficulties seem to have been overcome, and Kleinhelder got some help in the form of an amicus brief from former Ronald Reagan attorney general Edwin Meese. But Meese’s brief deals almost entirely with reasons why the Georgia voting law is not, in fact, problematic, and spends no time whatsoever addressing the causes of action in the Complaint. To be honest, it’s entirely irrelevant.

JCN did manage one feat, though: getting MLB and the MLBPA on the same side. Both filed motions to dismiss the Complaint, essentially going over the same points we just addressed, and adding appropriate citations to case law. JCN then responded in, shall we say, an unconventional reply brief.

By moving the All-Star game to Denver three months before game day, MLB caved to mob rule to selfishly promote itself as an active member of the woke cancel culture. Instead of addressing its perceived problem with Georgia’s new voting law through judicial action or lobbying, as its Constitution provides, it decided to impose rough justice and crush thousands of Atlanta small businesses. MLB and its union recognize the harm caused by this callous action and their brazen message to Atlanta’s thousands of black-owned businesses is: “too bad, we can do as we please.” But this Court has the power to stand up to a spoiled, ingratiate bully, that receives billions in government funding, enjoys unprecedented antitrust immunity and purports to be America’s National Pastime. This Court can demonstrate that there are federal Constitutional rights afforded to all Americans, including small business owners in Atlanta. Denver has no room to complain about the game going back to Atlanta. Instead of standing side by side with his brothers and sisters in Georgia victimized by the MLB, Colorado’s governor actively sought out the game by advancing his state as having more liberal and enlightened voting laws. Shame on him! Colorado’s unclean hands prevent any of their potential losses from being considered.

This is less a legal argument than it is political one - and as a legal one, it leaves a great deal to be desired. Antitrust immunity and a slogan as a national pastime does not a state actor make, and the deficiencies in JCN’s suit as a matter of law are readily identifiable here. Referencing “Atlanta’s thousands of [B]lack-owned businesses” proves too much, as JCN is not one of those businesses and cannot sue or recover on their behalf. Yes, there are federal Constitutional rights afforded to all Americans, but an All-Star Game is not one of them. And by invoking MLB’s purported desire to be a part of “woke cancel culture” (whatever that means) for marketing purposes, JCN implicitly concedes that MLB was acting in a private capacity.

So JCN shouldn’t start planning any victory parades. Of course, they will complain when they lose about the judiciary supporting “woke cancel culture” so they can do some political fundraising. In reality, when this case is thrown out, it will be because it was just a badly written, frivolous lawsuit.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.