Cubs Back Off Bullpen Proposal; Full Rooftop Contract Revealed

Courtesy Chicago Cubs

The plot, as it usually does when it comes to the Cubs/rooftops dispute, has thickened yet again.

Just two days after unveiling a new proposal for expanding and renovating Wrigley Field, which included multiple outfield signs and bullpens under the bleachers which would have required removing some of the landmarked outfield bricks and ivy, the Cubs offered to drop the bullpen portion of the plan:

On Thursday, the Cubs acknowledged the team’s failure to communicate with City Hall and offered to pull the larger bullpen doors off the table to get the project back on track for, what the team hopes will be a July groundbreaking.

“We believe the larger doors would be more advantageous to the players, but if we need to keep the doors as they are, we’ll live with it. We have communicated that to the Landmarks Commission. We have not received a response,” said Cubs spokesman Julian Green.

“There were documents provided to the city [earlier], but the focal point of our conversations have always been about the sign plan and bleacher expansion. If the bullpen doors were missed or the city believes it wasn’t clearly identified, we’ll take responsibility for that.”

The bullpen doors don't seem like something that could have just been "missed," but let's take that statement at face value for now. Fran Spielman's Sun-Times article also says that the mayor's office is going to review the proposal carefully and that it would likely not be ready for the Landmarks Commission meeting next week.

So, as seems to be the case with just about everything that's been proposed by the Cubs for this project, this will be yet again delayed.

What is more important, of course, is the signage proposed by the Cubs and the looming threat of a lawsuit by rooftop owners. Thursday, David Kaplan posted the entire rooftop/Cubs contract in this CSN Chicago article. You can read the entire contract for yourself at this link.

The key clause in the contract is provision 6.6, which reads:

The Cubs shall not erect windscreens or other barriers to obstruct the views of the Rooftops, provided however that temporary items such as banners, flags, and decorations for special occasions, shall not be considered as having been erected to obstruct views of the Rooftops. Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this Agreement, including this section.

Some background is required here. If you read through the rest of section 6 of the contract, it refers multiple times to expanding bleacher seating. At the time the agreement was signed -- January 2004 -- it was thought the Cubs were considering double-decking the bleachers. That, obviously, would have blocked pretty much every rooftop view, and the section is intended to provide remedies to the rooftops if that had happened. Obviously, it didn't; the 2005-06 bleacher reconstruction project did expand bleacher seating, but didn't block any views from the rooftops. Nevertheless, the Cubs have consistently called the current Wrigley proposals an "expansion," and at least the proposal made in 2013 was approved by "governmental authorities."

And therein lies the impasse. I sent the link to the contract to a friend who is both a Chicago lawyer and dedicated and knowledgeable Cubs fan for analysis, and here's what I got in response (long, but well worth reading):

There are two key words in section 6.6: "barriers" and "expansion." Unfortunately, neither are defined anywhere else in the contract, which is part of the problem. It seems quite apparent that a scoreboard, video board, or light tower would constitute a "barrier" that would obstruct the view of the rooftops. So the real question is whether the sentence regarding government-approved "expansion" was intended, at the time of the creation of the contract, to encompass and include additional "barriers" that would, by their very nature, obstruct the views of the rooftop. In other words, does goverment-approved "expansion" include the ability of the Cubs to erect necessarily view-blocking "barriers"? 
 
This is the inherent problem with the word "expansion" as used in the contract. By its dictionary and common sense definition, it means adding to something that already exists, like when the Cubs added more seating to the bleachers after the 2005 season. It's a poor word to include in the contract, however, because it doesn't accurately describe what the Cubs are trying to do here. In my estimation, the rooftops can plausibly and convincingly argue that what the Cubs are proposing is not an "expansion" by either a dictionary definition or in the meaning that the contract gives it (which, of course, is undefined), but is instead an addition or something else that is extrinsic to Wrigley itself. Some of this may depend on what a scoreboard or video board is attached to: if it's Wrigley itself, say the back of the bleachers, the Cubs might be in better shape, but if they are erected directly onto Waveland or Sheffield, then the rooftops have a stronger argument. And this is my concern about those lightpoles, because it looks like they would have to be built directly onto the streets themselves.
 
The Cubs' reply to this argument might be something along these lines: if we require approval from the city to do it, then it's an "expansion," and it doesn't matter how we build it or what we attach it to. And there's some legal truth here too, because if the Cubs have to jump through all these regulatory hoops just to put up an additional scoreboard or two, how can it be denied that this is an "expansion"? If it's not an "expansion," why do they need approval at all? Certainly the Cubs could gut the home clubhouse and redo that without the city's permission; after all, they own Wrigley Field, and they can do what they want (for the most part) to its interior. 
 
As a Cubs fan, I'm on their side, and I do think they have the stronger legal position. However, it's not quite as cut and dried in their favor as it seems to be, and the rooftops will have some good arguments to make. The problem lies with the language of the contract and the fact that nothing important here is defined within the contract. This means that a judge would have to look at context, which is always unpredictable. And worse for the Cubs is the fact that when there is ambiguity in a contract, the inferences are to be drawn in favor of the non-drafting party, which is probably (though it's not clear from the contract itself) the rooftops, because I think it's safe to conclude that the Cubs/Tribune Company lawyers drew up this contract. (They did a poor job of it though.)
 
If the Cubs are looking to get this into court so they can work out some sort of settlement/buy-out, then I think they have a good strategy. Most of this seems to be moot until the city actually does approve the "expansion" that the Cubs seek, because that clause doesn't really take effect until approval happens. So maybe the rooftops should focus more attention on having the city reject the "expansion", because I think it's unlikely they would be able to get a temporary restraining order or a temporary/permanent injunction to stop construction once it begins. It's like when Mayor Daley tore up Meigs Field: he didn't ask for permission, he just did it, and once it was done, that airstrip wasn't coming back. If the Cubs can get approval from the city and then shovels in the ground, they may lose in the court of public opinion briefly, but I think they'll ultimately win the war on their terms.

So... sounds like the Cubs have some, if not most, of the law on their side and will ultimately "win," depending on how you define "winning." A settlement/buyout seems a distinct possibility, if the two sides can agree on a figure, which, as reported by Danny Ecker at Crain's Chicago Business, seems about as far apart as the Cubs' current chances of winning a World Series.

It would not surprise me if the Cubs wind up modifying some of the other parts of this proposal before it's approved, and of course, the endgame of this is probably in a court of law. As always, we await further developments.

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