Ohio’s Art Modell Law and the Ongoing Fight Over its Legality

By Alex Geyelin, JD Candidate at Harvard Law School

1. Introduction

            There is no fury like a fan base scorned.  Most respond in the standard ways: raucous boos; jerseys set ablaze; and rage-fueled radio calls.  But after the Cleveland Browns’ 1996 relocation to Baltimore, Ohioans took a different tack.  The state legislature enacted Ohio Rev. Code § 9.67 — colloquially known as the Art Modell Law, in honor of the prior Browns’ locally-infamous owner — to protect the region from future desertions.  For nearly three decades the first-of-its-kind statute has mostly sat idly and symbolically reflected both the public’s resentment and, perhaps, the legislature’s political opportunism.  The City of Cleveland and the Ohio Attorney General’s Office now wield the Law, however, in their joint effort to block the current Browns’ proposed move from its downtown stadium to the Cleveland suburbs after its lease on the former expires in 2029.  Browns’ ownership predictably disagrees and challenges the sparsely-worded statute on numerous legal grounds.  Most forcefully, they allege that the Law violates the Constitution’s Commerce Clause and is void for vagueness.

This paper examines the strongest claims on both sides of the dispute, ultimately presenting two main arguments, both of which are favorable to the franchise’s relocation goals.  First, the Law is best read forcefully, and if it is so, it is most likely impermissible.  Second, there are colorable arguments to the contrary and the Law may well be upheld, but such an outcome would most likely be through an interpretation that renders the Browns in compliance and the Law a non-issue. 

2. Background

The current fight over the potential move to Brook Park, Ohio, is the product of a decades-long saga that began with the prior Browns’ move to Baltimore.  “The Move,” as it is now contemptuously known in greater Cleveland, inspired the statute at the core of this dispute.  Its legality has been examined once before but without a firm judicial resolution.  Now, with the Browns seeking to move on from their heavily subsidized downtown stadium, the franchise and the City have launched opposing lawsuits at one another.  This section outlines the pertinent background in four parts, examining The Move, the Art Modell Law, the facilities at issue, and the ongoing litigation in turn.

1. The Move.

On November 6, 1995, following years of financial struggles, stadium-related frustrations, and failed negotiations, Cleveland Browns owner Art Modell announced he intended to move the franchise to Baltimore at season’s end.^[1]  The next day, Cuyahoga County voters overwhelmingly approved the extension of an alcohol and tobacco tax designed to generate funding for long-sought Cleveland Stadium renovations — the very absence of which had ostensibly motivated Modell to pursue a move to begin with.  Modell forged ahead anyway,^[2] declaring not only that “the bridge [between him and Cleveland was] down, burned, disappeared,” but that “not even a canoe” remained for him.^[3]  He forever insisted on The Move’s necessity, citing persistent debts, a hostile political environment, and no path to collaboratively resolving the stadium woes.  Skeptics alleged financial mismanagement, bad faith, and backroom politicking.^[4]

The City of Cleveland immediately led a lawsuit.^[5]  It primarily alleged a breach of contract, arguing that the Browns’ lease required it to play its home games at Cleveland Stadium beyond the 1995 season.^[6]  In February 1996, after contentious NFL-facilitated negotiations, local officials, Modell, and the other NFL owners came to an agreement.  After compensating the city for breaking the lease, Modell would be permitted to take the Browns’ personnel and organization to Baltimore, but as a new, rebranded franchise (soon named the Ravens).  Meanwhile, the Browns’ name, branding, history, and records would remain in Cleveland, to be revived three seasons later through either league expansion or an existing franchise’s relocation.  And, crucially, the NFL committed to contributing tens of millions in funding to ensure the reactivated Browns would be greeted with a new stadium in Cleveland.^[7] 

On its face, this resolution seemingly provided all parties some degree of satisfaction:^[8] Modell got his move, and in 1998, a new stadium courtesy of the Maryland Stadium Authority; Cleveland was to receive $12,000,000 from Modell in damages and up to $48 million from the NFL for construction costs; Ohioans kept the Browns, albeit with three lost seasons; and the NFL expanded while placing both the Baltimore and Cleveland franchises in new, modern, luxury suite-laden venues.^[9]  But the hurt lingered, and The Move rendered Modell permanently unwelcome in Cleveland, where he never again set foot.^[10]  Fans soon began sporting vulgar t-shirts conveying their resentment,^[11] streets filled with protests,^[12] and commentators continue to place the departure atop the quite competitive list of the region’s most stinging sports memories.^[13]  Even after LeBron James took his talents to South Beach in 2010, Modell himself offered as consolation that James could never surpass him as Clevelanders’ biggest enemy.^[14]  (As a prominent columnist put it: “LeBron James broke Cleveland’s heart. Modell stole its soul.”^[15])

1. The Law.

It was against this emotional and political backdrop that the Art Modell Law was born.  Seeking protection against a similar fate should the reactivated Browns eventually tire of their to-be-built lakefront facility, legislators acted quickly to draft and pass Ohio Rev. Code § 9.67:

No owner of a professional sports team that uses a tax-supported facility for most of its home games and receives financial assistance from the state or a political subdivision thereof shall cease playing most of its home games at the facility and begin playing most of its home games elsewhere unless the owner either:

(A) Enters into an agreement with the political subdivision permitting the team to play most of its home games elsewhere;

(B) Gives the political subdivision in which the facility is located not less than six months’ advance notice of the owner’s intention to cease playing most of its home games at the facility and, during the six months after such notice, gives the political subdivision or any individual or group of individuals who reside in the area the opportunity to purchase the team.^[16]

            The Law became effective on June 20, 1996, and had been invoked just once prior to the current litigation.  In October 2017, Anthony Precourt, then-owner of Major League Soccer’s Columbus Crew, announced his plan to move the team to Austin if he could not reach a deal on a new downtown Columbus stadium.^[17]  The announcement predictably sparked regional outrage — potentially amplified by Ohio’s prior experience with the Browns — and fans campaigned to retain the team.^[18]  The two sides offered conflicting tales: Precourt claimed local leaders presented no plans for a possible downtown venue, while Columbus officials argued it was “obvious” ownership had no desire to remain in the area and implied the stadium dispute was mere pretext to justify a long-desired move.^{[19] [20]} 

            Then-Ohio Attorney General Mike DeWine and Columbus city attorneys filed suit in Franklin County Court against Precourt Sports Ventures, Major League Soccer, and the Crew.  The complaint was wholly based on the untested but “common-sense” Modell Law and was straightforward: it claimed the Law requires owners within its purview to “give the cities in which [a given team’s] publicly-subsidized facilities are housed and any interested individuals a reasonable opportunity to buy [the team]” and that Precourt had not done so.^[21]  The Plaintiffs sought a declaratory judgment stating that the Modell Law applied to the Defendants and the Defendants could not move the team to Austin without first complying, a preliminary and permanent injunction barring the move, and judicial oversight to ensure Precourt engaged in good-faith negotiations with local officials.^[22]

            The Defendants moved to dismiss the complaint for failure to state an actionable claim, and in so doing used several arguments similar to those the Browns now offer.  On December 3, 2018, trial court Judge Jeffrey M. Brown denied the motion, declining to find the law unconstitutional and allowing the litigation to proceed.^[23]  Soon after his decision and before any appellate court could address the matter, however, the parties came to a resolution that is both jurisprudentially anticlimactic and slightly ironic.  It is the former because the claims were not fully resolved — Precourt sold the Crew to a local group, became the owner of a new expansion franchise in Austin, and mooted the litigation.  There is thus no binding case law or judicial precedent governing the constitutional claims against the Modell Law, and the Law remains technically untested for the purposes of the current litigation.  And it is the latter because the local buyers (and the Crew’s current owners) were Browns owners Jimmy and Dee Haslam through their Haslam Sports Group, against whom the Law is currently being invoked.

1. The Stadiums.

The same political and emotional backdrop provided the context for the planning and building of the Browns’ current stadium (initially named Cleveland Browns Stadium and now Huntington Bank Field).  Soon after the Browns departed in 1996 and following numerous discussions with the NFL, then-Mayor White announced plans for a 73,000 seat venue on the lakefront site previously occupied by the old stadium.  Construction began in May 1997 and concluded in August 1999, just in time for the Browns’ revival, and cost $283 million with approximately three-fourths covered by public funds.^[24]  The Browns resumed operations and began the 30-year lease negotiated between new owner Al Lerner and Cleveland officials, and that agreement’s impending expiration following the 2028-29 NFL season provides the impetus for the current conflict.^[25]  To its credit, Huntington Bank Field has served admirably despite the on-field product.  Though it has yet to host postseason play, yearly attendance has hovered near the middle of the pack throughout its life and stadium experience surveys typically rate it as solid if unremarkable.^[26] 

The stadium underwent its first round of substantial, subsidized renovations around the midpoint of the current lease.  In 2013, Jimmy Haslam announced a “modernization” project for what was then named FirstEnergy Stadium.  The total cost was projected at $120 million, with Cleveland asked to contribute $30 million over fifteen years and the Browns covering the remainder.  Despite having the mayoral administration’s support, the measure barely passed its City Council vote after a “heated, four-hour debate” in which members voiced frustration with the city’s spending priorities, the perceived frivolity of the proposed upgrades, and the negotiating dynamic between the team and government.^[27] 

The renovations nonetheless occurred over the next two offseasons, and since then, stadium-related discourse was relatively quiet until October 2023.  Then, with an eye toward the lease’s expiration and a potential extension, Browns ownership proposed renovations on a far larger scale.  Seemingly looking to join the NFL markets that have recently built high-end, multi-use entertainment venues with enhanced and diversified revenue streams (e.g. in Las Vegas; Inglewood; Atlanta; and soon, Buffalo and Nashville), Haslam Sports Group presented plans for a stadium overhaul project.  The proposal came with a projected cost of $1 billion to $1.2 billion, with half covered by HSG and the other half by public funding in some form.^[28] 

The proposal’s enormity was sure to generate dissent given the contentious debate over the prior renovations’ $30 million subsidies.  Meanwhile, reports began surfacing in February 2024 that the Haslams were in the process of acquiring a 176-acre parcel in nearby Brook Park, fueling speculation that an entirely new venue may be in the works.^[29]  The next month, pressure on local officials increased when the Haslams acknowledged pursuing the land and confirmed they were “weigh[ing their] options” between renovations and a new, $2.4 billion domed stadium and mixed-use development project in Brook Park, though they stated “not one option is above the other.”^{[30] [31]}  Likely adding to the pressure was Cleveland’s “Lakefront Master Plan” unveiled in October 2023, for which Mayor Bibb released ambitious renderings of the area surrounding Huntington Bank Field.  The long-term project would include commercial and residential development, restaurants, lodging, and a new land bridge, with a top-tier NFL facility as its centerpiece.^[32]

After a period of private negotiations, Mayor Bibb publicly presented the Haslams with a funding proposal in August 2024.  Cleveland offered $461 million toward the renovation project, paid out over a 30-year lease term, with the potential for additional contributions from the county and state.^[33]  City officials framed the bid as a “great first step” that approached the fifty-fifty split the Browns sought; detractors argued that the deferred payment schedule rendered its value much lower in real terms.^[34]  In any case, in October 2024 the Haslams officially announced they were moving forward with the Brook Park development plan in lieu of pursuing downtown renovations.  Since then, amidst the litigation detailed below, they have done just that.  In January 2025 they exercised an option to formally buy the Brook Park site,^[35] and in February they released a financing plan that included a total of $1.2 billion in state, county, and Brook Park funding.^[36]

1. The Litigation.

The parties’ disagreements extend far beyond the merits, as they have been unable to even agree on the proper court.  As a result, the litigation has so far unfolded in two parallel tracks: the Browns have filed suit in federal court, and the city has done the same in Cuyahoga County.  Both legal processes are outlined below.

1. The Browns’ Lawsuit in N.D. Ohio.

Cleveland officials were predictably displeased with the Haslams’ announcement.       

Days after the owners announced an intent to exclusively pursue the Brook Park plan, Cleveland’s Law Director publicly stated that the city would invoke the Modell Law against the franchise if necessary.^{[37] [38]}  Two days later, on October 24, 2024, the Browns filed suit against Cleveland in the Northern District of Ohio.^[39]  The Browns sought a declaratory judgment that the Modell Law “is unconstitutional on its face and as applied to the Browns,” or in the alternative, that the Browns’ Brook Park plan does not even trigger the Law.^[40]  The complaint alleged that the Law violates the Commerce Clause; the Contract Clause; the Privileges and Immunities Clause; and that it is void for vagueness and thus violates due process.^[41]  As for the secondary argument that the Law does not cover their intended conduct anyway, the Browns emphasized that the lease agreement is set to expire after the 2028-29 season, prior to any potential move.  Thus, the team argued, as of 2029 it “will no longer be playing at a” tax-supported facility (nor will it have any obligation to do so going forward), and so will be outside the Law’s scope.^[42]

            On January 15, 2025, both the City of Cleveland and the Ohio Attorney General’s Office (as Intervenor-Defendant) filed motions to dismiss the Browns’ complaint, although with different legal approaches.^[43]  Cleveland argued (i) the federal district court lacks subject matter jurisdiction; (ii) the franchise lacks Article III standing because it is requesting an advisory opinion; and (iii) even if N.D. Ohio has jurisdiction over the matter, it should decline to exercise it.^[44]  The Attorney General’s Office, meanwhile, more directly addressed the merits of the Browns’ claims.  The state argued first that the Browns’ federal claims are premised upon unanswered questions of state law – namely, the Modell Law’s scope and meaning – and the district court should thus abstain.  Second, the state pushed back on each of the Browns’ constitutional challenges.  Third and finally, the state argued that in the absence of a valid federal claim, the court should decline to exercise supplemental jurisdiction over any remaining state law claims.^[45]  On February 14, 2025, the Browns moved in opposition to both Defendants’ motions to dismiss, arguing (i) the Browns’ claims create federal question jurisdiction; (ii) they are seeking substantive relief, not an advisory opinion; and (iii) abstention is unwarranted.^[46]  On February 24, 2025, the city reiterated its view that the matter should be adjudicated in Cuyahoga County court and on February 28 Ohio Attorney General Ned Yost filed a brief arguing the same.^[47]

            On March 18, 2025, the franchise doubled down on both its legal efforts and public rhetoric.  The Browns added the elite and case-selective New York law firm Wachtell, Lipton, Rosen, & Katz to its legal team and filed a 183-page amended complaint expanding and clarifying its legal arguments.  The Browns accused the City of Cleveland of “seek[ing] to hold the Browns hostage to its own failure of vision,” making “little effort” to work toward the franchise’s local development goals, and “misguiding Clevelanders by inaccurately conflating” the Brook Park proposal with the 1996 Baltimore move.^[48]  The same day, the Browns released a letter directly to the public providing updates on the Brook Park project, extolling its potential benefits, and framing it as fiscally responsible while regionally transformative.^[49]  Haslam Sports Group also issued a press release summarizing the franchise’s rejection of the city’s “baseless assertions” and emphasizing that the Haslams’ “unwavering commitment to Northeast Ohio” represents “the complete opposite of the Modell situation.”  As evidence, HSG cited its commitment to putting more than $2 billion in total private capital toward the stadium and surrounding development, at least $1.2 billion of which would be from the Haslams and HSG directly.^[50]

            As expected, the City of Cleveland disagreed.  The following morning, Mayor Bibb released a statement describing the Haslams as “misleading” the public and seeking to “squander taxpayer dollars… while openly violating state law.”^[51]  Bibb called ownership’s public statements “disingenuous” and “insulting,” and stated that “[t]he Haslam scheme pays for itself on the backs of fans.”^[52]  And where the Haslams highlighted the scale of private funding they and their partners are prepared to invest in the project, Bibb and other local officials focused on the combined $1.2 billion in local and state funds requested.^[53]

1. Cleveland’s Lawsuit in Cuyahoga County Court.

While the Browns have pursued federal relief, Cleveland has initiated its own litigation.  First, on December 30, 2024, Mayor Bibb sent the Haslams a letter declaring the city’s intent to invoke the Modell Law and requesting the team respond by January 9, 2025, or else face legal action.  Browns officials met the deadline by a few hours but said little more than that they looked forward to resolving the dispute in federal court through the already-unfolding litigation outlined above.^[54] 

            On January 14, 2025, the city filed its own lawsuit in the Cuyahoga County Court of Common Pleas against Haslam Sports Group, the Browns, and the Cleveland Browns Stadium Company.  The city cited numerous prior statements from team ownership apparently conveying an intent to remain in Cleveland and framed the city as having “relentlessly” sought solutions that would appease both parties and keep the team downtown.^[55]  The city straightforwardly alleged a breach of the Modell Law and essentially sought the same relief as requested in the Columbus Crew litigation: a declaratory judgment that the Browns must comply with the Modell Law, injunctive relief barring a move without the Browns first doing so, and judicial oversight to ensure the same.^[56] 

On March 18, 2025, the Browns moved to stay the Cuyahoga County case, or in the alternative, dismiss for lack of justiciability.  The team first argued that staying the county action is necessary to avoid a “collision course” resulting from differing statutory interpretations and that federal court is the primary and most appropriate venue for adjudicating federal questions.  Alternatively, the franchise argued that the Cuyahoga County court should dismiss for lack of ripeness because it is not even possible for the Browns to violate the Modell Law for several years.^[57]

3. Legality of the Art Modell Law

Regardless of how the various jurisdictional, procedural, and forum-related battles unfold, the Modell Law will eventually need to pass legal muster.  The Browns believe it cannot, and challenge the Law from numerous angles, most prominently through the Commerce Clause and a void-for-vagueness allegation.^[58] 

It is difficult to predict with certainty how courts will read the Law given its novelty and the lack of thorough case law.  As explored below, however, there are strong textual and structural arguments that a broad reading is more aligned with the statute as enacted than a soft one (and, importantly, more aligned with the Sixth Circuit’s general judicial bent than is a more pragmatism-based analysis).  If such a reading is applied, the law is vulnerable to numerous Commerce Clause arguments, and even if not there is a strong claim that the law is impermissibly vague.  Ultimately, however, even if a court upholds the Law, it is unlikely to matter, because applying the type of interpretation that would survive the Browns’ constitutional challenges would likely render the statute a nullity.

1. Strongest Arguments Against the Modell Law’s Legality.

            The Law is most vulnerable to a Commerce Clause challenge when it is read to have maximal force.  When interpreted as imposing strict burdens and requirements on franchises, and even as effectively requiring current ownership to accept purchase offers from a select group during a specified timeframe as a precondition of a relatively mundane stadium upgrade process, the statute is quite arguably in violation of the dormant Commerce Clause.  And when interpreted less harshly, it is subject to a more difficult, but still reasonable, void for vagueness challenge.

1. The Law Likely Violates the Commerce Clause.

            A Commerce Clause challenge is strengthened by a broad interpretation of the statute.  If read broadly, the Law is subject to a strong challenge that it violates the dormant Commerce Clause (the “DCC”) in two related but distinct ways: it (1) facially discriminates against out-of-state actors and (2) places burdens on interstate commerce that are excessive relative to the local interest served and thus violates Pike balancing.  And while the Browns’ opponents offer several arguments against the Commerce Clause challenges, each is flawed.  The Browns’ DCC arguments in briefing thus far presume such a broad reading of the Law, and this section articulates and defends that interpretation while applying it to the relevant DCC doctrine.

1. The Statute Should be Read as Forceful and Broad.

            The Modell Law is sparsely worded and does not describe with specificity what it requires of the franchises to which it is applied.  Defenders of the Law’s constitutionality may argue that the statute is a relatively mild one, and that the Browns must only provide an “opportunity for purchase” in the sense that they must allow buyers to emerge and initiate negotiations.^[59]  Based on the statute’s text, structure, and purpose, however, the reading most faithful to the statute’s text and to traditional tools of interpretation is that current ownership is required to (1) sell to or meaningfully negotiate with local buyers, and (2) preference local buyers over non-local buyers during the six-month notice period.

The court must read the Modell Law so as to give effect to the Ohio legislature’s intent.^[60]  That inquiry begins with the statute’s plain language, and if the language is clear, the process ends.^[61]  In so doing, per the Supreme Court and Sixth Circuit, the court should employ a number of interpretive canons.^[62]  Prominent among them is the rule against surplusage, which reflects “the idea that ‘every word and every provision is to be given effect [and that n]one should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.’”^[63]  The court then checks its answer through the anti-absurdity canon, which dictates that “[i]nterpretations of a statute which would produce absurd results are to be avoided.”^[64]  However, it must do so in moderation: “Only when following the literal language of the statute would lead to ‘an interpretation which is inconsistent with the legislative intent or to an absurd result’ can a court modify the meaning of the statutory language.”^[65]

Following this guidance, the Modell Law is best read to effectively require a sale – or at the very least a good faith negotiation – should a bona-fide, credible local buyer emerge during the six-month notice period.  Beginning with the text, the Law requires the Browns to give the city six months’ notice of the team’s intention to move and, during that period, provide the city and potential buyers “in the area” with “the opportunity to purchase the team.”^[66]  The primary (but far from only) ambiguity is the definition of “opportunity to purchase,” and thus what exactly the Law requires of the Browns and current ownership during the notice period.  Again, Defenders of the Law may argue for a weak meaning, pointing to dictionaries that define “opportunity” as merely “an occasion or situation that makes it possible to do something.”^[67]  Under that definition, the Browns are theoretically just required to keep an open ear during the notice period and permit prospective buyers to approach them with offers.  This definition minimizes the burden imposed on franchises and, importantly, on interstate commerce.

Such a definition is wholly inconsistent with the rules against surplusage and against rendering words and phrases meaningless.  If “gives… the opportunity to purchase” merely means that prospective buyers have six months to approach current ownership, but ownership retains the right to refuse buyers’ advances completely at their discretion, the entire “opportunity” clause is superfluous because it adds nothing to the preceding six-month notice provision.  Put differently, the six-month notice provision requires the franchise to inform the government of its intent to move and press pause on relocation for the half-year thereafter; per the anti-surplusage canon, the “opportunity to purchase” clause must then do something materially more than just “duplicate [the preceding] provision.”^[68]  For that to be the case, the Law must alter the status quo in terms of how current ownership is obligated to treat an emerging local buyer.  Reinforcing this point, the statute’s drafters used the word “and” to connect the six-month notice clause with the “opportunity to purchase” clause.^[69]  “Giving effect to each word”^[70] requires one to view these as separate and distinct requirements rather than the latter as a redundant rephrasing of the former.^[71]  And again, on a basic level, local buyers are of course within their rights to make purchase offers at any time.  Nothing prevents a motivated Cleveland resident from reaching out to current ownership whether during a required six-month notice period or not.  To read the “opportunity” clause as merely elucidating that right is to “[give it] an interpretation that causes it… to have no consequence.”^[72] 

Looking beyond these textual analyses leads to the same conclusion.  If the text is indeterminate, the Sixth Circuit instructs us to consider “the ‘[t]he broader context’ of the statute and statutory purpose together to resolve the ambiguity.”^[73]  The Modell Law was passed in the aftermath of the prior Browns’ much-decried relocation to Baltimore.^[74]  Ohio previously initiated enforcement against the Columbus Crew to hasten or stop its proposed relocation to Texas.^[75]  Here, the Cleveland City Council approved its enforcement and Cleveland subsequently sued the Browns for that very purpose, albeit regarding an in-state move.^[76]  By all accounts, the Law is designed as an anti-relocation measure and to ensure Ohio’s professional sports teams remain just that.  Therefore, to read the Law as merely delaying a move by six months, during which time potential buyers may speak up only to be immediately swatted away, is to render it entirely ineffective.^[77]  This would be inconsistent with its motivating purpose and context, and the most logical way to interpret the Law is thus as imposing a genuine burden on would-be movers.

A near-identical analysis tells us that a local buyer must be materially preferenced over a non-local buyer.  By the statute’s terms, the “opportunity to purchase” must be provided to “any individual or group of individuals who reside in the area.”^[78]  At the risk of redundancy, traditional interpretive tools dictate that must mean something.  Reading the statute as merely allowing local individuals to approach current ownership with offers in a manner no different than how any out-of-state individual is free to do the same, whether in a six-month notice period or not, is reading the “reside in the area” provision “to have no consequence.”^[79]  Thus, the most logically sound way to read the local buyer provision is to read it as providing local residents some opportunity to purchase the team above and beyond that which is afforded to non-local residents, thereby placing local buyers in a class above and separate from non-local buyers.

Finally, even if the scientifically precise definition of “gives an opportunity to purchase” is indeterminate at this stage, the aforementioned canon against absurdity informs our understanding.  Few would contend that the statute is written to absolutely and literally require a sale to a local buyer that emerges with even a laughably low offer.  (If it somehow were, a constitutional challenge would be all the easier).  One could, however, reasonably argue that the Law requires current ownership to actively entertain and pursue credible offers and, potentially, to accept an offer that reasonably reflects market value.  The sharper contours of “opportunity” and “reasonable” are beyond the scope of this analysis, as is the precise extent to which local buyers are preferenced over non-local ones.  But what is clear from applying the typical interpretive tools to this statute is (1) current ownership must do materially more than just passively allow local buyers to present them offers and (2) local buyers are elevated above non-local buyers.

• If Read Broadly, the Law is Likely Violative.

Article I of the U.S. Constitution grants Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.”^[80]  In the early 19th century, the Supreme Court established an exclusivity to that power and created the “Dormant Commerce Clause” (“DCC”).^[81]  In essence, the Court determined that because Congress has the right to regulate interstate commerce, individual states cannot themselves enforce laws interfering with that domain.^[82]  As the Court recently explained, the Commerce Clause is read to “contain a further, negative command” “effectively forbidding the enforcement of ‘certain state [economic regulations] even when Congress has failed to legislate on the subject.’”^[83]  A state law violates the dormant Commerce Clause when it is an attempt to “build up … domestic commerce” through “burdens upon the industry and business of other States.”^[84]  “At the core of” the doctrine is an “antidiscrimination principle” such that the DCC prohibits the enforcement of “laws driven by … economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.”^[85]  Relatedly but distinctly, laws may violate the dormant Commerce Clause if they regulate “even-handedly” but have an incidental burden on interstate commerce.^[86]  In assessing a law’s constitutionality under the DCC, courts must consider not just the challenged law in isolation, but the potential cumulative effect of similar laws being enacted throughout the country.^[87]

1. The Modell Law Facially Discriminates Against Out-of-State Commercial Actors.

“The dormant Commerce Clause precludes States from ‘discriminat[ing] between transactions on the basis of some interstate element.’”^[88]  A state law is discriminatory if it creates “differential treatment of instate and out-of-state economic interests that benefits the former and burdens the latter.”^[89]  Discriminatory laws motivated by “simple economic protectionism” are subject to a “virtually per se rule of invalidity”^[90] which can be overcome only by “a showing that the State has no other means to advance a legitimate local purpose.”^[91]  Further, some statutes are not explicitly discriminatory but nonetheless have strong discriminatory effects; “[w]hen the effect is powerful, acting as an embargo on interstate commerce without hindering intrastate sales,” the law is treated as the equivalent of a facially discriminatory statute.^[92]

The Modell Law is quite arguably discriminatory on its face, but even if not, it undoubtedly has strong discriminatory effects.  When read broadly as described above, the Law straightforwardly treats local buyers more favorably than non-local buyers.  It creates a six month window during which local buyers are, if the rule against surplusage is applied with any force, elevated above non-residents.  If both local and non-local buyers emerge with competitive offers, it follows logically that a franchise is statutorily obligated to preference the local buyer.  And if the “opportunity to purchase” requirement is taken seriously, current ownership is seemingly barred from selling to a non-local buyer — even in the absence of a local buyer — because doing so would necessarily deprive all local buyers from the very “opportunity” the Law mandates. 

Precise precedential analogues are few, but the Sixth Circuit’s and Supreme Court’s analyses in other DCC cases are instructive.  In Tenn. Wine and Spirits Retailers Ass’n v. Thomas, retailers challenged a Tennessee statute that required an individual to show “bona fide residen[cy]” for the previous two years in order to obtain a liquor store license.^[93]  The law also barred corporations from operating liquor stores unless every shareholder satisfied the requirement.^[94]  The Sixth Circuit held the law unconstitutional and the Supreme Court agreed, with the latter finding that the durational-residency requirement “plainly favor[ed] Tennesseans over nonresidents.”^[95]  Here, an identical analysis applies.  In Tenn. Wine, if two applicants sought licenses and only one was a two-year Tennessee resident, under the invalidated law the non-resident would be summarily denied and the Tennessean would proceed.  And here, if two buyers approach a franchise during the required notice period and only one is an Ohioan, that buyer must be permitted an “opportunity to purchase” while the out-of-stater not.  The Modell Law thus explicitly treats in- and out-of-state commercial actors differently — the hallmark of facial discrimination.^[96]

Conversely, this situation is decidedly unlike that in Truesdell v. Friedlander.^[97]  In Truesdell, an Ohio-based medical transport company challenged a Kentucky law that requires ambulance companies to obtain a “certificate of need” before providing certain services within its borders.^[98]  The law’s applicability to a given company depended in part on whether the company sought to offer inter- or only intrastate ambulatory services.^[99]  When Truesdell applied for such a certificate, numerous local would-be competitors protested, and the hearing officer denied the application, citing in part that the applicant had not demonstrated a local need for more providers.^[100]  Truesdell challenged – on dormant Commerce Clause grounds – the substantive rule requiring it to demonstrate a need for its services and the procedural rule permitting competitors’ objections.^[101]

The Sixth Circuit in 2023 denied Truesdell’s facial discrimination challenge because nothing in the challenged law distinguishes between in- and out-of-state actors, and nothing in the law explicitly favors the former over the latter.  The law regulates companies differently based on whether their operations are inter- or intrastate, but the corporate residency of a given commercial actor makes no difference to the law’s application.^[102]  Again, the Modell Law is wholly different; here, the determinative factor in the Law’s treatment of a commercial actor in the six-month notice period is that actor’s residence.  During that period, a local buyer must be embraced and a non-local buyer must be shooed away.  This is disparate treatment in its purest form.

Further, it is difficult for Ohio to show that the Law “serves a legitimate local purpose” that could not be served by “nondiscriminatory means.”^[103]  The state’s local interest served by the Modell Law is, presumably, retaining the professional sports teams in which the public has invested.  This legislation is plainly not the only means by which this goal could be achieved.  While the myriad contractual provisions that jurisdictions may employ to achieve this same end is a topic for another paper,^[104] this Law could have been drafted to disregard a potential buyer’s residence and merely require an “opportunity to purchase” be provided to anyone intending to keep the team stationary.  To be clear, such a statute may face legal hurdles of its own, including those analyzed below; but at the very least, this structure would serve the exact same local interest while being completely nondiscriminatory.  Due to the Modell Law explicitly favoring residents over non-residents in the marketplace and the availability of alternative means to serve the same interest, the Law is quite arguably facially discriminatory.

1. As Applied to the Browns’ Prospective Relocation, the Law Imposes Excessive Burdens Relative to the Local Interest Served.

Alternatively, a dormant Commerce Clause challenge could reasonably assert that the Law excessively burdens interstate commerce even if it is non-discriminatory.  This genre of argument would not require such an aggressive statutory reading, as it does not need the statute to have the level of overt discrimination (or overtly discriminatory effects) as the arguments outlined in Section I(B)(1).  When a state law “regulates even-handedly to effectuate a legitimate local public interest” but incidentally affects interstate commerce, Pike balancing applies.^[105]  Per Pike, a state law “will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”^[106]  A law may also be invalid if it governs “those phases of the national commerce which, because of the need of national uniformity, demand their regulation, if any, be prescribed by a single authority.”^[107]

“If a legitimate local purpose is found, then the question becomes one of degree… And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”^[108]  While some decisions frame Pike as still requiring an asserted burden to be of a discriminatory sort to be unconstitutional, many decisions explicitly place Pike inquiries in a category separate from disparate impact analyses.^[109]  And the Supreme Court has written that “we generally leave the courtroom door open to plaintiffs” arguing “that even nondiscriminatory burdens on commerce may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice.”^[110]  Finally, as noted above, in assessing the burden courts should consider the cumulative effect of copycat laws emerging nationwide.^[111]

            Here, the burden imposed on interstate commerce is substantial relative to the local interests served.

First, the interstate aspect.  The NFL is an “unincorporated association” of its member-clubs, and intuitively, the interstate nature of these franchises’ commercial activity is clear.  Each individual team of course play its games and engages in commercial transactions nationwide, but the franchises also cooperate with one another to uphold the broader league structure; they collectively bargain many of the agreements that sustain the game’s operations, such as the CBA and broadcasting deals; they participate in a robust revenue-sharing program;^[112] and franchises are uniquely scarce assets, rendering each one’s value highly relevant to the overall marketplace.  As an overall business, it is impossible to disentangle each franchise’s commercial activities from the NFL’s nationwide constellation.

            This intuition has been repeatedly judicially affirmed.  Atmospherically, in the foundational Radovich v. National Football League the Supreme Court declined to extend professional baseball’s antitrust exemption to football.^[113]  The Court distanced itself from the oft-critiqued reasoning^[114] behind the exemption, arguing that Federal Baseball’s peculiarity aside, “the volume of interstate business involved in organized professional football” places it squarely within federal law’s ambit.^[115]  And more recently, the Supreme Court has written that franchises are “similar in some sense to a single enterprise” and “share an interest in making the entire league successful and profitable,”^[116] while the Ninth Circuit has sharply contrasted the NFL with an environment of “actual [business] competitors.”^[117] 

More specifically, several courts have specifically relied on the NFL’s structure to strike down state action as excessively intrusive on interstate commerce.  In Partee v. San Diego Chargers, California’s Supreme Court rejected the state’s attempt to apply its own local antitrust laws to the Chargers and the NFL’s labor relations regime.^[118]  The court’s reasoning rested near-entirely on the NFL’s fundamentally national structure.  It referenced many of the same points as in the preceding paragraph, stated that “national uniformity” is required in the regulation of professional football because “[f]ragmentation of the league structure on the basis of state lines would adversely affect the success of the competitive business,” and declared the need for “a nationwide league structure” to be “evident.”  Therefore, per the court, applying California’s local antitrust statutes to the Chargers and League would impermissibly burden interstate commercial activity.^[119]

California courts were similarly skeptical of the state’s attempt to block the Raiders’ move to Los Angeles.  In City of Oakland v. Oakland Raiders the city invoked eminent domain to acquire all property rights to the Raiders franchise and prevent the team from leaving Oakland.^[120]  The Raiders, relying in part on the Partee court’s analysis of the NFL’s structure, argued that such a move was violative of the Commerce Clause.^[121]  The appellate court agreed, and in affirming the trial court’s reasoning specifically cited the league-wide importance of each franchise’s playing facility: “League television contract proceeds are divided equally and gate receipts nearly equally; a team’s drawing power is therefore a financial benefit to the other teams as well as to itself; hence the capacity and quality of the facility in which games are played is a component of the League’s financial success.”^[122]  The court proceeded to emphasize that “bar[ing] indefinitely defendant’s business from relocating out of Oakland” is “the precise brand of parochial meddling with the national economy that the commerce clause was designed to prohibit,” even though the Raiders’ intended move was an in-state one.^[123]  And finally, the court concluded that “relocation of the Raiders would implicate the welfare not only of the individual team franchise, but of the entire League” and stated that in such cases “regulation—if necessary—should come from Congress; only then can the consequences to interstate commerce be assessed and a proper balance struck.”^[124]  While the state interventions at issue in Partee and Oakland each differ in specifics from the one applied to the Browns, the same principle covers all three disputes: each NFL team is an integral part of a complex, interwoven, national business apparatus, with all franchises economically interdependent on one another and on the broader league structure.  And given that dynamic, each state applying its own regulations to core issues of franchise operations — such as relocation negotiations and stadium leases — risks colliding head-on with the Commerce Clause.

            Second, the burden imposed by the Modell Law.  The Law places material obstacles in front of the Browns’ ability to relocate even beyond the franchise’s negotiated lease term.  Per the reasoning in the above-cited cases, the effects of such obstacles are neither minor nor isolated to the single franchise at issue.  As for the Browns’ specific proposal, the Brook Park project is presented as a year-round venue surrounded by a privately-funded entertainment district.^[125]  Economists affiliated with the project have predicted it could host up to a dozen major concerts annually (Huntington Bank Field currently hosts only one to three large, non-NFL events a year) in addition to other high-profile sporting events, such as Super Bowls and NCAA championships; the surrounding district would contain apartments, hotels, and office space; and up to 60% of its annual visitors are projected to be from out-of-state.^[126]  The city and state may quibble with some of these projections’ details, but the general thrust is unobjectionable:  in light of the Browns’ plans and courts’ prior analyses, the intended commercial activity at issue is not, despite Cleveland’s and Ohio’s contentions, “wholly intrastate.”^[127] 

Further, franchise relocation in the NFL is far from unprecedented.  In the past decade alone, three franchises have fully relocated^[128] and five have moved to a new facility in the same market.^[129]  When an NFL franchise identifies superior economic prospects elsewhere or the need for a superior facility, movement is a valuable and oft-employed option.  And the effects for both the franchise’s new home and the franchise itself – and thereby, the NFL and all its member-franchises – can be substantial.  For example, the St. Louis Rams’ relocation to Inglewood in 2020.  The move and accompanying developments have been described as “a boon for Inglewood financially at a time when they were teetering on bankruptcy”; as helping transform Inglewood into “a destination for shopping, entertainment, and sports”; and the Rams’ new stadium as the “crown jewel” of a massive mixed-use entertainment district.^[130]  And for the Rams, the move appears to have been similarly beneficial.  In their final year in an outdated St. Louis facility, the Rams ranked dead last in average home attendance (52,402)^[131]; in its first fan-attended season in SoFi Stadium it ranked eighth (71,598 in 2021),^[132] and in 2024, seventh.^[133]  Similar results are regularly seen when franchises stay put but open a new facility; Levi’s Stadium in Santa Clara, to which the 49ers moved in 2014 from nearby San Francisco, has reportedly generated upwards of $2 billion in revenues for the region over the past decade.^[134]  These revenues undoubtedly implicate interstate commerce, as they involve fans visiting from out of state; out-of-state sponsorship and vendor agreements; games between teams of different states; national TV broadcasts; and more. This is by no means a comprehensive analysis of relocation economics, but instead merely offers that the economic effects of franchise relocation can be, for both localities and franchises, incredibly significant.  Thus, a law that statutorily hamstrings that process is placing substantial burdens on inevitably interstate commercial activity. 

This burden is only magnified when considering the cumulative effect of other franchise-housing states enacting similar statutes.  Teams nationwide would be legally hindered in their efforts to realize the type of economic value the Rams, 49ers, and others have realized through their respective moves, and to bring the level of commercial activity to high-potential localities that these teams have brought.  Franchise values across the NFL would resultantly be affected, because if prospective owners credibly fear that they will be handcuffed to a low-performing jurisdiction or an outdated facility, the financial incentive to invest in teams erodes.  As applied to the Browns, if the courts endorse the Law as binding the team to the current Huntington Bank Field unless ownership subjects itself to the prospect of losing team control, the franchise’s value necessarily plummets.

            Finally, the local interest served.  In this prong of the analysis it may work in the Browns’ favor that the contemplated move is only fifteen miles.^[135]  The Browns can quite fairly argue that the burdens imposed on the franchise, and thereby on the larger NFL ecosystem, far outweigh the state’s interest in keeping the team at its current facility over moving to a nearby suburb.  This is especially so when the potential move would occur only after the franchise performs the entirety of its negotiated 30-year lease term; again, neither the city nor state can offer any argument that the franchise is attempting to exploit the taxpayer by escaping the terms of the parties’ bargained-for agreement.^[136]  And as described, the Browns are pursuing a purportedly “transformational” and “state-of-the-art” stadium project and entertainment district that could bring inestimable levels of economic activity to the area.^[137] While Cleveland may argue that such a development does little for it as a city, Ohio’s interest in slowing or blocking such a project within its own borders strikes as weak.

1. The City’s Arguments Against the Browns’ DCC Claims are Vulnerable.

            Ohio argued in its initial motion to dismiss the Browns’ federal suit that “[t]he dormant Commerce Clause has no relevance when a government acts as a market participant.”^[138]  While true that the DCC has an established exception for scenarios in which the government acts as a market participant because “nothing… prohibits a State… from participating in the market and exercising the right to favor its own citizens over others,”^[139] Ohio’s argument misses the mark.  The local governments opposite the Browns have surely expended funds toward the current stadium, and the City of Cleveland is engaged in the stadium lease market as the Browns’, Guardians’, and Cavaliers’ landlord.  But that market is not the one in which the Law discriminates, as neither Cleveland nor Ohio have emerged as prospective buyers of the Browns (nor could they, per NFL rules).  The Browns also correctly note in its opposition to the state’s motion that the participant exception does not apply where the government acts as a “market regulator”;^[140] here, the very discrimination at issue is through the government’s attempted regulation of franchise relocation and the stadium lease market.^[141]

            The state’s argument that the DCC does not touch “intrastate commerce” and thus is inapplicable to the Modell Law is similarly unavailing, and for reasons already covered.  While true that the Commerce Clause definitionally covers only interstate commerce and so has no place governing wholly intrastate affairs, this is plainly not that.  As noted, franchises engage in interstate competition; they are a part of a national marketplace where each one’s value is highly relevant to those of the rest; and they are commercially intertwined with one another in too many ways to count.  And further, the state’s “intrastate commerce” argument is unresponsive to the claim of facial discrimination against out-of-state buyers, because if the law does so discriminate then it is a paradigmatic DCC violation regardless of the theoretical intrastate transactions it is meant to facilitate.

            Finally, the state argues that the Law “nonetheless complies with” the DCC.^[142]  Attorney General Yost claims in turn that the Law “does not give Ohio political subdivisions and Ohio residents preferential treatment,” it has no “discriminatory effect,” it has no “discriminatory purpose,” and finally that it inflicts no “substantial impact on interstate commerce.”^[143]  Here, the state’s arguments live or die with the court’s choice of interpretive method.  It is true that the court may choose to employ a softer reading, and as detailed below, if it does then the Law is far less vulnerable.  But should the court interpret the statute in line with the repeatedly endorsed methodology outlined above, this portion of the state’s argument falls.

• The Law is Arguably Void for Vagueness.

The void for vagueness challenge is, predictably, based on the claim that the Law is so extremely unclear that it renders the franchises under its purview insufficiently notified of the conduct required of them.  This argument is made more difficult by the Law being a civil statute, rather than a criminal one, but is available, nonetheless. 

            A void for vagueness argument would necessarily sacrifice much of the interpretive argument in Section III(A)(1) regarding the statute’s breadth.  The void for vagueness doctrine descends from the Due Process Clause and “prohibits civil and criminal laws that fail ‘to give ordinary people fair notice of the conduct [they] punish, or [are] so standardless that [they] invite[ ] arbitrary enforcement.’”^[144]  Civil statutes are “held to a less strict vagueness standard than criminal laws ‘because the consequences of imprecision are qualitatively less severe.’”^[145]  In this context, the court examines the vagueness challenge “in the light of the facts of the case at hand” and a challenger “bears the burden of establishing that the statute is vague as applied to his particular case, not merely that the statute could be construed as vague in some hypothetical situation.”^[146]  To survive the challenge a statute must (1) “give the person of ordinary intelligence a reasonable opportunity [to] know what is prohibited” and (2) “provide explicit standards for those who enforce them” to prevent “arbitrary and discriminatory enforcement.”^[147]

            Due to the fact-specific nature of the inquiry, strong precedent is in short supply.  But the Browns’ argument here is straightforward: the statute provides no clear guidance on what exactly the team is obligated to do during the six-month notice period.  The team could object on several grounds, but most prominently, several of the words and phrases in the brief statute are susceptible to widely varying interpretations. First, the phrase “opportunity to purchase” is assigned no clear meaning.  It could mean that current ownership must simply wait out the notice period; it could mean that current ownership is required to sell to a local buyer if approached; or it could mean anything in between.  Given the enormous value of the asset at issue, these are no trivial differences.  Moreover, as the Browns reference, it is unclear how such a requirement interacts with the NFL’s ownership requirements.  For example, current NFL regulations prohibit a prospective owner from buying a team with an offer including more than $1.2 billion in debt.  Prospective ownership groups also may not contain more than 25 bought-in members, and each group must contain a primary owner with a minimum 30% stake.^[148]  If a local buyer were to emerge during the six-month window, but the offer’s financing violated the League’s prescribed debt limit, it is unclear how the Browns must proceed.  The same goes for a potential group that contains over 26 members or that has no members with a 30% share.  Further analysis on this front is perhaps more tied to the franchise’s Contract Clause arguments, but these questions nonetheless illustrate the complexities inherent to — and unaddressed by — the Law.

Similar gripes may be had with the “not less than six months’ advance notice” provision.  If that means the relevant political subdivision must receive notice at least six months prior to the actual relocation’s occurrence, then the Browns seem to be in the clear anyway given that the intended move is not for several years.^[149]  Instead, it could mean that “notice” is required six months in advance of some other manifestation of the owner’s future “intention” to move – which is itself a fairly indeterminate point in time.  Again, given the complexity and financial scale of the transactions at issue, these differences are material.  Or, it could mean that the Browns must provide notice and then wait six months before taking any additional steps toward the move.  Other provisions are similarly vague; for example, as the Browns point out in briefing,^[150] “reside in the area” is also left undefined.  If the Browns open up bidding to all Clevelanders but exclude Cincinattians, it is not clear whether the franchise has complied.  Alternatively, and importantly, likely due to the skyrocketing values of NFL franchises, modern purchases are often made by ownership groups rather than a single individual.  If a group contains a mix of local and non-local individuals, it is unclear if that group qualifies as a “local buyer.”  If it does, a group containing mostly out-of-staters could potentially attempt to assign one Cleveland resident a nominal stake and exploit the Law’s requirements.  Again, these questions reflect a fundamental misalignment between the Law’s brevity and the industry’s commercial realities.

The above-listed ambiguities are non-exhaustive, and the Browns can reasonably argue that the Law as written does not provide them “a reasonable opportunity to know” what is specifically required of them and when it is so, thus inviting “arbitrary and discriminatory enforcement” by government officials who may be understandably bitter about a franchise’s departure and the political fallout thereof.

• Strongest Arguments in Favor of the Modell Law’s Legality.

            There remain numerous fair and reasonable arguments going the other way, though they would require a distinctly different reading and interpretive approach.  Most generally, a court could simply disagree with the above about the Law’s force and requirements and read it softly to avoid a constitutional dilemma.  However, should the city and state prevail in their arguments about the Law’s legality, they will ironically achieve the result they most dread.  Should the Law be upheld per the very interpretations the state presents, not only will the Law be rendered substantively toothless, but the Browns will seemingly soon be in full compliance.

1. There Remain Several Reasonable Arguments for the Law’s Validity.

If the Law is read to impose a lesser burden on the franchise or if a court is simply unpersuaded by the significance of a half-year of local buyer preferencing, the Commerce Clause challenge is made far harder.  Once the discriminatory aspects are cut away and the impact on franchises is minimized, it becomes easier to frame the local interest as far outweighing any burdensome effects.  Thus, with a weak reading, the general arguments on the state and city’s side are straightforward.  The void for vagueness challenge is even more vulnerable, as regardless of the statute’s imprecision such a challenge is a tall task in the civil setting.

1. The Statute Need Not be Read as Forcefully as in Section III(A)(1).

            An oft-employed “tool for choosing between competing plausible interpretations” of a statute is the canon of constitutional avoidance.^[151]  The canon is grounded largely in the desire to give effect to legislative intent, as legislatures are presumed not to purposefully craft unconstitutional statutes.^[152]  Ohio courts have consistently and repeatedly applied the canon, noting, for example, that “[c]ourts have an obligation to liberally construe statutes to avoid constitutional infirmities.”^[153]  As Judge Brown relevantly noted in his opinion denying Precourt Sports Ventures’ motion to dismiss in 2018, “[i]t is a fundamental principle of Ohio Law that ‘a court must presume the constitutionality of [the state’s] lawfully enacted legislation.’”^[154]

            The principle’s application to this case is clear: a court may presume, notwithstanding the strong textual argument to the contrary, that Ohio’s legislature did not intend to legislate in conflict with the Commerce Clause, and thus may give the Law a soft reading.^[155]  Under such a reading, the “opportunity to purchase” clause may be a mere temporal point and essentially state the purpose of the preceding six-month notice provision.  Likewise, the “local buyer” portion may be read not as materially elevating local buyers above non-local buyers, but as, again, clarifying the substantive reason behind delaying the move by six months; that is, allowing locally-minded Ohioans an opportunity to put their offers together and approach the relevant franchise.

            Should the court go down this path, one responsive argument is that if the court is going to deviate from a strict textual analysis and view the Law pragmatically, it should also look to the Law’s clear purpose:^[156] to prevent Ohio’s sports franchises from deserting the region for another state, as the prior Browns did.  The present-day Browns evince no such intention, as their proposal is to build a new facility a mere fifteen miles down the road.  The team could thus argue that if the court is to consider legislative intent, then it should hold the Law inapplicable to this case entirely.  This, however, may be a difficult argument as it requires overcoming quite a few textual hurdles.

• If the Law is Read Softly, the Burden is Minimized and the Local Interest is Comparatively Strong.

            Even if the canon of constitutional avoidance is not employed, a court may simply decide that theLaw is non-discriminatory and Pike balancing points the other way.  As noted above, a successful Pike balancing challenge must show that the challenged law’s “burden on interstate commerce outweighs the local benefits.”^[157] 

Here, the state and city may argue — and not wholly unreasonably — that a six-month delay in an inevitably years-long relocation process is a fair price to pay for the substantial financial and emotional investments that the state, its localities, and their residents have made in Ohio sports franchises.  A court could determine that the Law’s provision of a six-month period is fair and reasonable as a “last ditch”^[158] effort for a community to drum up a local buyer to keep the franchise where it is, and with current ownership free to reject that local buyer’s offer, there is little harm done.  Again, there are strong arguments that this reading would be highly flawed from a textual perspective, but the Law’s lack of precedent renders it difficult to predict how it will be read.

• The Law, While Imperfectly Drafted, is Arguably Outside the Reach of the Void-for-Vagueness Doctrine.

Alternatively, but relatedly, one could argue (as the Browns’ opponents do) that the void-for-vagueness doctrine is simply a poor fit.  The state argues as much in its motion to dismiss the Browns’ complaint, and in so doing stresses the reasonable, ordinary, everyday meanings of the statute’s various terms and phrases.  As a baseline matter, the state argues that “mathematical certainty” is not required of statutory drafters and that the “plain and ordinary meaning” controls, so long as “[a] person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited.”  The state then claims that courts “typically consider only as-applied challenges to civil laws,” and that the bar for a successful challenge is highest for a civil law unrelated to the First Amendment.  Finally, the state argues that “regulatory statutes governing business activities… receive greater leeway,” in part because businesses can be reasonably expected to ascertain what is expected of them.^[159]  In totality, the state’s framing emphasizes less that the Law is an exemplar of precision than that the bar for a void for vagueness challenge is exceedingly high.

Here, the parties’ primary dispute is less doctrinal than it is interpretive.  They both appear aware of the general thrust of the void for vagueness principles, even if the state cites a few more obstacles than the franchise offers.  And none claim that the Statute is “mathematical[ly]”^[160] precise in its terms or requirements.  But the Browns view its drafting shortcomings as fatal, while the state and city argue they are not.  While, as noted in Section III(A)(2), there are strong arguments that the Statute does in fact fail to provide sufficient notice of the required or prohibited conduct, the state again points out that the threshold for such an allegation is quite a high one.  It is thus difficult to say with high confidence that a court will take the uncommon step of invalidating the Law based on the void-for-vagueness doctrine.

• If the Law is Upheld, the Browns Move May Proceed Effectively Unimpeded.

            Unfortunately for Ohio and Cleveland, however, prevailing on the arguments in the preceding sections would back both into a difficult corner.  Ironically, if the Law’s terms and phrases are assigned the meanings offered within the state’s own briefing, the franchise will soon have fully complied and should then be free to pursue its move without obstacle.

            In the state’s motion to dismiss the Browns’ N.D. Ohio complaint it forcefully disputes allegations of vagueness by presenting definitions for each disputed term.  Some are less controversial than others.  For example, the state offers that “notice” should be assigned its clear, “easily understood” meaning;^[161]  “reside in the area” means reside in “the area around the City of Cleveland”^[162];  “political subdivision” means “the City of Cleveland”;  “elsewhere” means any facility that is not Huntington Bank Field;  and “financial assistance” means taxpayer support.^[163]  For the purposes of this analysis, these definitions are presumed fair.  “Opportunity to purchase,” though, is the most indeterminate phrase, and likely the one on which the Law’s legality turns.  Clearly seeking to minimize the Law’s severity, the state argues that it means a mere “chance to buy,” but not in a manner that requires the Browns to “actually… s[ell] to anyone” or that renders the city “the ultimate decision-maker as to who can purchase a team.”  Instead, it provides “a last ditch, 6-month opportunity” for the region to attempt to “protect [its] investment.”^[164]

            If government officials want to insert those definitions the Browns should let them.  Plugging those meanings into the dispute at issue, the statute supposedly requires that Browns ownership “gives [the City of Cleveland] not less than [six months’ notice] of [the Haslams’] intention to [move the Browns to Brook Park] and, during the six months after such notice, gives [the City of Cleveland] or any individual or group of individuals who [reside in the area around the City of Cleveland] the [opportunity to offer to buy the team, but such opportunity need not lead to any sale].

            The glaring issue for Cleveland and Ohio is that if the above meanings are applied, the Browns will seemingly soon pass with flying colors.  The Haslams notified Cleveland in October 2024 of their intention to move to Brook Park.  That move is not scheduled to occur for several years.  As of this writing, nearly five months have passed since such notice was provided.  There has been no sale, but nor is there evidence that the city or any individuals or groups from the area have attempted to buy the team.  And even if someone were to express such an intent, the state itself says that the Haslams are under no obligation to sell. 

Losing the legal battle may thus bring the franchise its most favorable outcome.  In April 2025, six months will have passed since Haslam Sports Group notified the city of its intent.  Even if a court were to accept the state’s interpretations and deem the Law legally valid, then once that six-month mark is reached the Browns will seemingly have met the Law’s requirements in full.

4. Conclusion

Given the Law’s lack of precedent, it is difficult to predict with confidence which strain of interpretation the courts will more readily accept.  As noted, applying a reading most faithful to the statute’s text and structure maximizes its vulnerability, and a softer one much less so.  However, for the Browns’ opponents, the latter is a double-edged sword; should the law be upheld, it would likely be through an interpretation that renders the Law effectively toothless, handing Cleveland and Ohio a nominal victory but a losing result.

A region’s desire to “protect its investment” is wholly reasonable.  And while this paper argues that the Modell Law is not the way to do so, several avenues exist for jurisdictions seeking maximal protection during a lease’s term.^[165]  First, though, in the professional sports industry, a lease term of 30 years is relatively standard.^[166]  In that sense the Browns’ current relocation efforts are extraordinarily ordinary.  Second and relatedly, the stadium lease marketplace is competitive, with jurisdictions across the country willing to offer increasingly enticing financial incentive packages.^[167]  So for better or worse, franchises have considerable leverage in negotiations.  While states may try their hand with Modell Law-esque legislation or other statutory efforts aimed at evening the deck, doing so runs the risk of simply driving franchises to more favorable markets.^[168] 

            Nonetheless, there are numerous commonplace provisions that work to protect a jurisdiction’s surely sizable stadium investments throughout the full term of the lease.  Most fundamentally, a jurisdiction can (and should) require a non-relocation agreement to be included within or alongside the lease.  It should push for the agreement to match the length of the lease term, and while it will be difficult to negotiate for specific performance, it is not uncommon to negotiate for high liquidated damages or default penalties that make a premature departure financially difficult.^[169]  Cities may also push for a local buyer provision, through which it could potentially achieve a Modell Law-like effect without the headache of constitutional litigation.^[170]  And finally, cities may negotiate for extension options; while the franchise will likely be able to push for control over the options, it is common for them to be structured as automatic options such that it is the franchise’s responsibility to opt out should it so choose.^[171]  While, of course, none of these will guarantee a franchise’s tenancy beyond the lease term itself, such is necessarily the reality of a negotiated lease term.^[172]

Ultimately, this dispute’s resolution is unlikely to make huge doctrinal waves.  There are only so many professional sports franchises to which the Law applies, and as noted, it has yet to inspire copycat legislation elsewhere.  If the Law receives a strong judicial endorsement it is conceivable that other jurisdictions will take note and change that, but to this point there has been little movement in that direction.  Instead, this saga perhaps best offers a few lessons for actors in the stadium finance space.  First, presuming the Browns eventually get their desired move, it is yet another indicator of the immense power franchises wield in their partnerships with localities.  And second, if cities and jurisdictions seek to maximally protect their investments in local franchises, the best and simplest ways to do so are likely found at the negotiating table.

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[1] Frank M. Henkel, Cleveland Browns History (Arcadia Publ’g 2005).

[2] Mike Freeman, Pro Football; A City Fights to Save the Browns, N.Y. Times (Nov. 12, 1995), https://www.nytimes.com/1995/11/12/sports/pro-football-a-city-fights-to-save-the-browns.html.

[3] Modell: Franchise Movement Is Bad (But I’m Still Going), Toledo Blade, Nov. 8, 1995, at 25 (Associated Press).

[4] Jeff Passan, Lebron broke hearts in Cleveland, but ex-Browns owner Art Modell did far more damage, Yahoo Sports (Sept. 6, 2012), https://sports.yahoo.com/news/nfl—feelings-of-nothingness-linger-after-death-of-art-modell–the-man-who-stole-cleveland-s-soul-.html.

[5] Scott Andresen, The Lasting Legacy of Art Modell Is Felt as the Columbus Crew Seeks to Set Sail for Austin, Forbes (Mar. 9, 2018), https://www.forbes.com/sites/scottandresen/2018/03/09/the-lasting-legacy-of-art-modell-is-felt-as-the-columbus-crew-seeks-to-set-sail-for-austin/.

[6] Fans and season ticket holders sued too, and Ohio Congressmembers introduced federal legislation designed to give leagues more power to block relocations.  See Vinnie Perrone, Franchise Relocation Curb Sought on Hill, Wash. Post (Nov. 30, 1995).

[7] Richard Sandomir, Pro Football: How Compromise Built Cleveland a New Stadium, N.Y. Times (Feb. 12, 1996).

[8] The settlement also benefited other franchises and owners around the NFL, as many used the Browns’ saga as a blueprint.  In the ensuing years, franchises including the Seahawks, Bengals, Lions, Cardinals, and Bears leveraged the prospect of relocation to acquire new, publicly-subsidized stadiums in their home markets.  The Buccaneers, among others, specifically floated relocating to Cleveland and becoming the reactivated Browns before moving into a new stadium in 1998.  See Tim Crothers, The Shakedown, Sports Illustrated (June 19, 1995), https://vault.si.com/vault/1995/06/19/the-shakedown-greedy-owners-are-threatening-to-move-their-teams-if-demands-for-new-stadiums-better-lease-deals-etc-arent-met; Katherine C. Leone, Note, No Team, No Peace: Franchise Free Agency in the National Football League, 97 Colum. L. Rev. 473 (1997).

[9] Leonard Shapiro, Owners Approve Move of NFL Team to Baltimore, Wash. Post (Feb. 10, 1996), https://www.washingtonpost.com/archive/sports/1996/02/10/owners-approve-move-of-nfl-team-to-baltimore/62005513-0215-46f0-9236-2eefbaae9583/.

[10] Adam Bernstein, Art Modell, N.F.L. Owner of Browns, Then Ravens, Is Dead at 87, N.Y. Times (Sept. 6, 2012), https://www.nytimes.com/2012/09/07/sports/football/art-modell-nfl-owner-of-browns-then-ravens-is-dead-at-87.html.

[11] Al Fuchs, Muck Fodell, Al Fuchs Photography (Dec. 17, 1995), https://alandlarry.photoshelter.com/image/I00002URgxShCx8g.

[12] Bernstein, supra note 10.

[13] Mark Winegardner, Sixteen Painful Moments in Cleveland Sports History, ESPN (Sept. 14, 2014), https://www.espn.com/espn/story/_/id/11588331/sixteen-painful-moments-cleveland-sports-history.

[14] Art Modell Expects to Keep Most Hated Man in Cleveland Title Even After LeBron’s Decision, Cleveland.com (July 10, 2010), https://www.cleveland.com/cavs/2010/07/art_modell_expects_to_keep_mos.html.

[15] Passan, supra note 4.

[16] Ohio Rev. Code Ann. § 9.67.

[17] Statement from Precourt Sports Ventures, Columbus Crew (Oct. 17, 2017), https://www.columbuscrew.com/news/statement-precourt-sports-ventures.

[18] ESPN Staff, Ohio Gov. John Kasich Says Crew SC ‘Hasn’t Created the Spark’ in Columbus, ESPN (Oct. 30, 2017), https://www.espn.com/soccer/story/_/id/37537329/ohio-gov-john-kasich-says-crew-sc-created-spark-columbus.

[19] Christopher Vose, Austin FC and Their Weird Road to the Major League, The Vancouver Herald (Jan. 15, 2019), http://www.thevancouverherald.com/news/austin-fc-and-their-weird-road-to-the-major-league.

[20] As support, some pointed to Precourt having negotiated a provision as early as 2013 that permitted an eventual relocation, but specifically and only to Austin.  See ESPN Staff, supra note 18.

[21] State of Ohio and City of Columbus v. Precourt Sports Ventures et al., Complaint, No. 18CV-1864, Ct. Com. Pl. (Franklin Cnty., Ohio 2018) https://www.ohioattorneygeneral.gov/Files/Briefing-Room/News-Releases/Legal-initiatives/State-v-PSV-Complaint-and-exhibits.aspx.

[22] Id.

[23] Jim Woods, Judge declines to dismiss lawsuit seeking to keep Crew SC in Columbus, The Columbus Dispatch (Dec. 4, 2018) https://www.dispatch.com/story/news/politics/county/2018/12/04/judge-declines-to-dismiss-lawsuit/7945446007/.

[24] Drew Maziasz, Cleveland Browns plans reignites debate over public support for sports stadiums, ideastream, (May 14, 2024) https://www.ideastream.org/show/sound-of-ideas/2024-05-14/cleveland-browns-plans-reignites-debate-over-public-support-for-sports-stadiums.

[25] Browns owner Randy Lerner selling controlling interest in Browns, Akron Beacon J.(Jul. 28, 2012),

https://www.beaconjournal.com/story/sports/pro/browns/2012/07/28/browns-owner-randy-lerner-selling/10698121007/.

[26] NFL Football Attendance, ESPN, https://www.espn.com/nfl/attendance/_/year/; The Athletic Staff, NFL Stadium Rankings: All 30 NFL Venues from Best to Worst, N.Y. Times (Aug. 21, 2023), https://www.nytimes.com/athletic/4783340/2023/08/21/nfl-stadium-rankings-all-30-nfl-venues-from-best-to-worst/.

[27] Robert Higgs, Cleveland City Council Approves New Deal for Cleveland Browns’ Stadium (Nov. 12, 2013), Cleveland.com, https://www.cleveland.com/cityhall/2013/11/cleveland_city_council_approve_5.html.

[28] Nick Castele, Browns Pitched Cleveland City Council on $1 Billion Stadium Renovation, Members Say, Signal Cleveland (Feb. 16, 2024), https://signalcleveland.org/browns-pitched-cleveland-city-council-on-1-billion-stadium-renovation-members-say/.

[29] Browns Looking at Sites for Potential New Stadium, Sports Business Journal (Feb. 8, 2024), https://www.sportsbusinessjournal.com/Articles/2024/02/08/cleveland-browns-new-stadium/.

[30] Spencer German, Browns Owners Confirm Land Purchase Could Be Used for New Stadium (Mar. 27, 2024), Sports Illustrated, https://www.si.com/nfl/browns/news/browns-owners-confirm–land-purchase-could-be-used-for-new-stadium.

[31] Mirroring some claims made during the Columbus Crew saga, some have theorized that the franchise truly wanted the Brook Park development all along.

[32] Brian Hall, Cleveland Lakefront Development Master Plan Unveiled, Axios (Oct. 24, 2023), https://www.axios.com/local/cleveland/2023/10/24/cleveland-lakefront-development-master-plan-2023.

[33]  Courtney Astolfi, The Fine Print: Bibb’s Cleveland Browns Stadium Offer Isn’t Anywhere Close to the 50/50 Split the Haslams Want, While Putting General Fund at Risk, Cleveland.com,(Aug. 2024), https://www.cleveland.com/metro/2024/08/the-fine-print-bibbs-cleveland-browns-stadium-offer-isnt-anywhere-close-to-the-5050-split-the-haslams-want-while-putting-general-fund-at-risk.html.

[34] Id.

[35] Cleveland Browns, Browns Execute Clause to Solidify Future Purchase of Land for New Huntington Bank Field Enclosed Stadium (Jan. 2, 2025), https://www.clevelandbrowns.com/news/browns-execute-clause-to-solidify-future-purchase-of-land-for-new-huntington-bank-field-enclosed-stadium.

[36] Michelle Jarboe, Browns Detail Their Brook Park Stadium Financing Plans for the First Time, News 5 Cleveland (Feb. 13, 2025), https://www.news5cleveland.com/news/local-news/browns-detail-their-brook-park-stadium-financing-plans-for-the-first-time.

[37] Dave DeNatale et al., City of Cleveland to ‘move forward’ on using Art Modell Law to prevent Browns from going to Brook Park, WKYC News (Oct. 22, 2024), https://www.wkyc.com/article/sports/nfl/browns/cleveland-browns-art-modell-law-haslam-sports-group-domed-stadium-brook-park-city-council-bibb-administration/95-55370573-81c9-4a29-af21-fe3bebcdfe9f.

[38] Presumably sensing the dispute’s trajectory, Cleveland City Council passed an ordinance the preceding May directing Mayor Bibb to enforce the Law should the Browns attempt to relocate.  See Tyler Carey and Lynna Lai, Cleveland City Council approves ordinance directing city to enforce ‘Art Modell Law’ in Browns stadium talks, WKYC News (May 7, 2024), https://www.wkyc.com/article/news/local/cleveland/cleveland-city-council-ordinance-art-modell-browns-stadium-talks/95-2721e8fe-7d2c-4dd5-b8ce-5beac30b1d71.

[39] Noelle Haynes and Brian Koster, Cleveland Browns File Lawsuit to Get Clarity on Modell Law, Cleveland 19 News (Oct. 24, 2024) https://www.cleveland19.com/2024/10/24/cleveland-browns-file-lawsuit-get-clarity-modell-law/.

[40] Id.

[41] Id.

[42] Id.

[43] Cleveland Browns v. City of Cleveland, et al., City of Cleveland Motion to Dismiss, No. 1:24-CV-01857 (N.D. Ohio 2024) (“Cleveland MTD”); Cleveland Browns, State of Ohio Motion to Dismiss, (N.D. Ohio 2024) (“Ohio MTD”).

[44] See generally Cleveland MTD.

[45] See generally Ohio MTD.

[46] Noelle Haynes, Browns Say Modell Law Unconstitutional in New Motion, Cleveland 19 News(Feb. 14, 2025), https://www.cleveland19.com/2025/02/15/browns-say-modell-law-unconstitutional-new-motion/.

[47] Ed Gallek and Patty Gallek, State Calls on Court to Dismiss Browns Lawsuit Against Cleveland, Fox 8 News (Mar. 5, 2025), https://fox8.com/news/i-team/state-calls-on-court-to-dismiss-browns-lawsuit-against-cleveland-i-team/.

[48] Ed Gallek and Patty Gallek, ‘Do the doable’: City, county leaders talk about keeping the Browns downtown, Fox 8 News (Mar. 19, 2025), ​​https://fox8.com/news/browns-say-city-misguiding-clevelanders-court/.

[49] Dave Jenkins, A letter to Cleveland Browns fans in Northeast Ohio and beyond on our stadium process, Cleveland Browns (Mar. 18, 2025), https://www.clevelandbrowns.com/news/a-letter-to-cleveland-browns-fans-in-northeast-ohio-and-beyond-on-our-stadium-process.

[50] Haslam Sports Group, Haslam Sports Group details key benefits of proposed enclosed Huntington Bank Field, Haslam Sports Group (Mar. 19, 2025), https://haslamsports.com/news/haslam-sports-group-details-key-benefits-of-proposed-enclosed-huntington-bank-field/.

[51] Ed Gallek and Patty Gallek, supra note 48.

[52] Id.

[53] Id.; George M. Thomas, ‘Hold the Browns hostage’: Haslams lash out at Cleveland in amended lawsuit, Akron Beacon Journal (Mar. 18, 2025, https://www.beaconjournal.com/story/sports/pro/browns/2025/03/18/new-browns-stadium-lawsuit-hostage/82522219007/.

[54] Dave DeNatale, Tyler Carey & Lynna Lai, Cleveland Browns respond to Mayor Justin Bibb’s ‘Modell Law’ letter as both sides prepare for potential court battle, WKYC News (Jan. 9, 2025), https://www.wkyc.com/article/sports/nfl/browns/cleveland-browns-art-modell-law-domed-stadium-mayor-justin-bibb-brook-park-response-letter/95-39262e45-df0b-452e-a3aa-13f3f791dfa5.

[55] City of Cleveland v. Haslam Sports Grp., LLC, et al., Complaint, No. CV-25-110189, Ct. Com. Pl. (Cuyahoga Cnty., Ohio 2025) (“Cuyahoga County Complaint”).

[56] Cuyahoga County Complaint at 22.

[57] City of Cleveland v. Haslam Sports Grp., LLC, et al., Defendants’ Motion to Stay the Action, or in the Alternative, Dismiss the Complaint, No. CV-25-110189, Ct. Com. Pl. (Cuyahoga Cnty., Ohio 2025) (“Cuyahoga County Browns MTD”).

[58] The Privileges and Immunities argument hinges on many of the same general interpretive principles as the Commerce Clause issue.  The Browns allege that “[the Modell Law] violates the Privileges and Immunities Clause by creating opportunities for Ohio citizens at the expense of similar opportunities for citizens of other states by giving local Ohio residents the opportunity to purchase the Team that is not afforded to residents of states other than Ohio.”  Cleveland Browns v. City of Cleveland, et al., Complaint, at 14-15, No. 1:24-CV-01857 (N.D. Ohio 2024) (Browns N.D. Ohio Complaint”).  As detailed below, the dormant Commerce Clause arguments largely presume a similar interpretation: that the Law requires the Browns to afford local buyers some opportunity above and beyond that which is afforded to out-of-staters.  It seems that if the Commerce Clause arguments fail, it is likely the Privileges and Immunities claim does too, and if the former succeeds through a finding of discrimination, so too should the latter.  Given that substantial overlap and the greater attention paid by the parties to the Commerce Clause thus far, a thorough Privileges and Immunities analysis is excluded here.

As for the Contract Clause allegation, that argument has generated some impassioned back-and-forth in the briefing, but it has largely concerned a factual dispute thus far.  The city and state argued that the claim is facially invalid because the Law’s passage predated the contracts with which it is alleged to interfere; the Browns have countered that the lease agreement was in fact signed prior to the Law’s passage.  See Cleveland Browns, Plaintiff’s Opposition to Intervenor-Defendant the State of Ohio’s Motion to Dismiss, No. 1:24-CV-01857 (N.D. Ohio 2024) (“Browns’ Opposition to Ohio MTD”). 

[59] And, as explored below, Ohio argues just that.

[60] United States v. Am. Trucking Ass’ns, 310 U.S. 534, 542 (1940).

[61] In re Corrin, 849 F.3d 653, 657 (6th Cir. 2017).

[62] Donovan v. FirstCredit, Inc., 983 F.3d 246, 257 (6th Cir. 2020).

[63] Nielsen v. Preap, 139 S. Ct. 954 (2019) (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012)); see also Lake Cumberland Trust, Inc. v. U.S. E.P.A., 954 F.2d 1218, 1222 (6th Cir. 1992) (“Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.”).

[64] Guzman v. U.S. Dep’t of Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012).

[65] Tenn. Prot. & Advoc., Inc. v. Wells, 371 F.3d 342, 350 (6th Cir. 2004) (quoting Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791, 801 (6th Cir. 1995)).

[66] Ohio Rev. Code Ann. § 9.67.

[67] https://dictionary.cambridge.org/us/dictionary/english/opportunity#google_vignette (emphasis added).

[68] Preap at 969 (2019) (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012)).

[69] Ohio Rev. Code Ann. § 9.67.

[70] Keeley v. Whitaker, 910 F.3d 878, 884 (6th Cir. 2018) (Sixth Circuit denying that two words joined by “and” were synonymous because finding them so would “strip meaning from the statute’s words”).

[71] The same general principle applies to the argument that the “opportunity to purchase” clause is explaining the function of the six-month notice period.  If the drafters wanted to write the statute to require a six-month notice period “so that” local buyers had the opportunity to make offers, they could have; instead, they used “and” and created two distinct requirements.

[72] Preap at 969 (2019) (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012)).

[73] U.S. ex rel. Felten v. William Beaumont Hosp., 993 F.3d 428, 431 (6th Cir. 2021) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340–41, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)).

[74] https://www.sportico.com/law/analysis/2024/cleveland-browns-stadium-modell-law-1234778742/

[75] https://www.cleveland.com/browns/2018/10/the_columbus_crew_had_been_sav.html

[76] Carey and Lai, supra note 38.

[77] Such a reading also collides with portions of the City’s own argument.  As explored further below, Ohio downplays the Law’s severity in its DCC analysis, but in Cleveland’s complaint it states forcefully that a team that accepts public funds “can’t take the money and run.”  If a team cannot “take the money and run,” then the Law must act with some level of force to prevent that; but if the Law does not require a sale, then a team can, in fact, “take the money and run.”  See Cuyahoga County Complaint at 4; Section III(B)(2) infra. 

[78] Ohio Rev. Code Ann. § 9.67.

[79] Preap at 969 (2019) (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012)).

[80] U.S. Const. art. I, § 8, cl. 3.

[81] See Gibbons v. Ogden, 22 U.S. 1 (1824).

[82] Id.

[83] Natl. Pork Producers Council v. Ross, 598 U.S. 356, 368 (2023) (quoting Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995)).

[84] Guy v. Baltimore, 100 U.S. 434, 443 (1880).

[85] Natl. Pork Producers Council v. Ross, 598 U.S. 356, 369–70 (2023) (internal citations and quotations omitted); see Tenn. Wine and Spirits Retailers Assn. v. Thomas, 139 S. Ct. 2449 (2019) (observing that the Court’s dormant Commerce Clause cases operate principally to “safeguard against state protectionism”); Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 373 (1994) (describing “a violation of the dormant Commerce Clause” as “discrimination against interstate commerce”).

[86] Amerada Hess Corp. v. Dir., Div. of Taxation New Jersey Dept. of the Treasury, 490 U.S. 66, 78. (1989).

[87] Healy v. Beer Inst., Inc., 491 U.S. 324, 336 (1989) (“Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation.”).

[88] Comptroller of Treas. of Maryland v. Wynne, 575 U.S. 542, 549 (2015) (quoting  Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 332 (1977)).

[89] Am. Bev. Ass’n v. Snyder, 735 F.3d 362, 370 (6th Cir. 2013) (quoting United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgt. Auth., 550 U.S. 330, 338 (2007)).

[90] Philadelphia v. New Jersey, 437 U.S. 617 (1978).

[91] Maine v. Taylor, 477 U.S. 131 (1986).

[92] Park Pet Shop, Inc. v. City of Chicago, 872 F.3d 495, 501 (7th Cir. 2017) (citing Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1130 (7th Cir. 1995).

[93] 588 U.S. 504, 511 (2019)

[94] Id.

[95] Id. at 518.

[96] One difference between the Browns’ case and most relevant DCC precedents is the Browns’ position in the would-be transaction.  In most cases, the objecting party is an out-of-state entity that is being barred from economic participation in a given state.  Here, it is essentially the opposite: the Browns are barred from transacting with out-of-state actors.  To establish standing, the Browns would presumably need to show injury-in-fact by arguing in some form that the Law’s prevention of an open and competitive marketplace hurts the asset value or threatens to force a suboptimal sale price on ownership, but further standing analysis is beyond the scope of this paper.

[97] 80 F.4th 762 (6th Cir. 2023).

[98] Id. at 765-66.

[99] Id. at 766-67.

[100] Id. at 767.

[101] Id.

[102] Id. at 770.

[103] Maine, 477 U.S. at 131.

[104] See Section IV, infra.

[105] Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

[106] Id.

[107] Southern Pacific Co. v. Arizona 325 U.S. 761, 767 (1945).

[108] Id.

[109] See, e.g., Park Pet Shop, Inc. v. City of Chicago, 872 F.3d 495, 501 (7th Cir. 2017).

[110] Dept. of Revenue of Ky. v. Davis, 553 U.S. 328, 353 (2008).

[111] Healy , 491 U.S. st 336 (“Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation.”)

[112] Relevantly, this includes large, equal distributions of a portion of each franchise’s ticket revenue; therefore, if one franchise upgrades its facility in a manner that materially increases such revenues, all 31 others stand to benefit.

[113] 352 U.S. 445, 452 (1957).

[114] Id. (“If this ruling is unrealistic, inconsistent [with Federal Baseball], or illogical, it is sufficient to answer, aside from the distinctions between the businesses, that were we considering the question of baseball for the first time upon a clean slate we would have no doubts… [but] the orderly way to eliminate error or discrimination, if any there be, is by legislation and not by court decision”); See also Fed. Baseball Club of Baltimore v. Natl. League of Prof. Base Ball Clubs, 259 U.S. 200, 207 (1922).

[115] Radovich, 352 U.S. at 452.

[116] Am. Needle, Inc. v. Natl. Football League, 560 U.S. 183 (2010).

[117] Los Angeles Meml. Coliseum Commn. v. Natl. Football League, 726 F.2d 1381, 1401 (9th Cir. 1984).

[118] 34 Cal.3d 378 (Cal. 1983).

[119] City of Oakland v. Oakland Raiders, 220 Cal. Rptr. 153, 157 (Cal. App. 1st Dist. 1985).

[120] Id.

[121] Id.

[122] Id.

[123] Id.

[124] Id.

[125] See Michelle Jarboe, Browns Say New Brook Park Stadium District Will Add $1.2 Billion to the Local Economy, News 5 Cleveland (Dec. 5, 2024), https://www.news5cleveland.com/news/local-news/browns-say-new-brook-park-stadium-district-will-add-1-2-billion-to-the-local-economy.

[126] Id.

[127] Ohio MTD at 14.

[128] The St. Louis Rams to Los Angeles in 2016, the San Diego Chargers to Los Angeles in 2017, and the Oakland Raiders to Las Vegas in 2020.

[129] The San Francisco 49ers in 2014, the Minnesota Vikings in 2016, the Atlanta Falcons in 2017, the Los Angeles Chargers in 2020, and the Los Angeles Rams in 2020.

[130] “Inglewood’s Transformation: How an NFL Stadium Brought the City Back from the Brink of Bankruptcy,” Urban Land Institute.

[131] “NFL Attendance – 2015,” ESPN.

[132] “NFL Attendance – 2016,” ESPN.

[133] “NFL Attendance – 2024,” ESPN.

[134] “Report: Levi’s Stadium in Santa Clara has $2B economic impact,” San José Spotlight.

[135] This does not necessarily cut down the scale of the burden by a proportional extent.  The court still should consider the cumulative effect of other states similarly hamstringing relocation, and should also weigh the unavoidably interstate impact of even one large-scale multi-use entertainment district development.

[136] Especially considering that should the Browns stay at the current HBF, Cleveland would seemingly be on the hook to contribute upwards of $500 million toward renovations.

[137] Michelle Jarboe, Cleveland Browns Release First Renderings, Details of Brook Park Stadium Proposal, News 5 Cleveland (Mar. 5, 2025), https://www.news5cleveland.com/sports/browns/cleveland-browns-release-first-renderings-details-of-brook-park-stadium-proposal.

[138] Ohio MTD.

[139] Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810 (1976) (footnotes omitted).

[140] Browns’ Opposition to Ohio MTD at 19-20.

[141] See also City of Oakland v. Oakland Raiders, 220 Cal. Rptr. 153, 156 (Cal. App. 1st Dist. 1985) (where the “market participant” theory in an NFL franchise relocation case was rejected because the state was not “enter[ing] the football market on an equal footing, bidding with other potential market participants” but instead acting through “its governmental power”).

[142] Ohio MTD at 15.

[143] Id. at 15-17.

[144] Hartman v. Acton, 499 F. Supp. 3d 523, 533 (S.D. Ohio 2020) (quoting Johnson v. United States, 576 U.S. 591 (2015)).

[145] Buckle Up Festival, LLC v. City of Cincinnati, 336 F. Supp. 3d 882, 886 (S.D. Ohio 2018) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)).

[146] United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2001) (citing United States v. Powell, 423 U.S. 87, 92 (1975)).

[147] Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

[148]  Michael Rothstein, Private Equity in the NFL? How Team Ownership Might Shift, ESPN (May 19, 2024), https://www.espn.com/nfl/story/_/id/40164039/private-equity-nfl-ownership-proposal-changes.

[149] Further demonstrating the logical tightrope on which the state and city walk, if this is the case and “opportunity to purchase” has the soft meaning the state offers (and that is likely required to survive the DCC), then the Browns will have satisfied the Law once they hit April 22, 2025.  At that point, six months will have passed since they formally announced the intent to move, and throughout that time any “local resident” will have been free to make a purchase offer.  But if both of these interpretations are correct, it is hard to imagine (i) how the Law would ever have a material effect or (ii) why the City and state would undertake this litigation.  This general argument is explored further below.

[150] Browns N.D. Ohio Complaint at 10.

[151] Clark v. Martinez, 543 U.S. 371, 381 (2005).

[152] See Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991).

[153] City of Columbiana v. Simpson, 147 N.E.3d 73, 84 (Ohio App. 7th Dist. 2019) (citing State ex rel. Taft v. Franklin Cty. Court of Common Pleas, 81 Ohio St.3d 480, 481 (1998)).

[154] Ohio v. Precourt, Decision and Entry Denying Defendants’ Motion to Dismiss at 14, No. 18CV-1864 (Franklin Cnty., Ohio 2018) (quoting Ohio Rev. Code §1.47(A); City of Cleveland v. State, 128 Ohio St. 3d 135, 2010-Ohio-6318, 942 N.E.2d 370, ¶6 (2010) (internal quotations and citations omitted)).

[155] “Intent,” however, can cut both ways. As easily as one might argue that legislators did not intend the Law to be so draconian, one could argue it was meant to only apply to full-scale relocations akin to the 1996 Cleveland-to-Baltimore move and should not even be in play here. Or, alternatively, given that it is meant to stop a franchise from “tak[ing] the money and run[ning]” per AG Yost, it was likely not intended to be as weak or defeatable as a six-month delay.  See note 77, supra.

[156] Wooden v. U.S., 595 U.S. 360, 366 (2022).

[157] Am. Bev. Ass’n v. Snyder, 735 F.3d 362, 368 (6th Cir. 2013).

[158] Ohio MTD at 11.

[159] Ohio MTD at 7-8 (internal citations omitted).

[160] Id.

[161] This definition is left somewhat circular, as Ohio states “[a] person of ordinary intelligence would easily understand that Ohio Rev. Code § 9.67(B) requires the Browns to provide six months’ notice to the City that it intends to play the majority of its home games at a location other than Huntington Bank Field.”  Ohio MTD at 10.   It is conceivable that Ohio’s definitions of “notice” and “opportunity to purchase” jointly assume a more formal, public notice from current ownership to local residents that they may come forward with offers.  While Ohio’s briefing does not mention any requirement of this sort, it would not materially shift the Browns’ footing.  Given Ohio’s firm declaration that an “opportunity” need not lead to any sale whatsoever, ownership could issue such a public notice, refuse to accept whichever offers may arise, and be in compliance in six months.

[162] This is not defined any further, so it is not clear whether Ohio views Brook Park itself as within “the area around the City of Cleveland.”  If it so qualifies, then Ohio would need to oddly argue that the franchise may be owned by a Brook Park resident but may not play in Brook Park.

[163] Ohio MTD at 9.

[164] Id. at 11.

[165] The Modell Law’s motivating purpose evinces an intent to bind Ohio’s franchises beyond even their respective lease terms.  That very concept runs into some logical trouble, as the term for which a franchise is bound to a venue is itself, in effect, the lease  term.  If a team is bound to a facility for beyond the express term of its lease agreement, a better description of the dynamic is that the franchise is bound by an indefinite lease but the financial terms beyond X years have yet to be determined.

[166] Alexander Chester and Robert Davydov, The Revolution in NFL Stadiums: An Analysis of Deal Structure and Related Rewards, Duane Morris LLP (Sept. 7, 2023), https://www.duanemorris.com/articles/revolution_nfl_stadiums_analysis_deal_structure_related_rewards_0923.html.

[167] Ryan Gauthier, Publicly-Subsidised Stadiums: Changing the Game Through Good Governance, 30 Jeffrey S. Moorad Sports L.J. 231 (2023).  https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1453&context=mslj.

[168] There has not been any considerable movement toward federal legislation governing public-private partnerships, stadium subsidies, or franchise relocations.  Such an effort would surely encounter an onslaught of legal opposition but, if it survived, would dramatically alter the dynamics at play.

[169] Carfagna’s Negotiating and Drafting Sports Venue Agreements (2d ed.) at 31; see also In re Dewey Ranch Hockey, 414 B.R. 577 (in which a liquidated damages provision successfully prevented the Phoenix Coyotes from moving to Glendale).

[170] Carfagna at 31.

[171] Carfagna at 18.

[172] See note 165, supra.