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Ready to Play Hardball
Tom McNichol | Photo: Illustration by Jack Black | October 2, 2013
The battle between San Jose and Major League Baseball is really a match between two hard-throwing lawyers.
if he hadn’t been a litigator, Joseph Cotchett would have made a terrific politician. He is an expert user of the conspiratorial wink. He swears judiciously and often, like the Special Forces paratrooper and army colonel he once was. He wears a sports coat instead of a suit during trials to make himself more approachable. In legal circles, he is considered one of the legendary lions of the profession, an aggressive, take-no-prisoners plaintiff’s lawyer who has gone up against such heavy hitters as the FBI, the U.S. Navy, Charles Keating, and late Oakland Raiders owner Al Davis.
So it should come as no great shock that Cotchett is the man to whom the city of San Jose turned to take on another great, blustering American institution: Major League Baseball. In June, Cotchett filed an antitrust lawsuit against MLB on behalf of the city, accusing the league of a “blatant conspiracy” to block San Jose from luring the Oakland Athletics to the South Bay. “It’s a very interesting case, and I’ve had some great cases,” says the 74-year-old. “It’s certainly a case that cries out for some justice.”
Cotchett will be pitted against another grizzled Bay Area lawyer, John Keker, who is representing MLB as lead attorney. He is the same Keker who prosecuted Oliver North during the Iran-Contra scandal in the 1980s and who, more recently, represented Lance Armstrong in a federal case that was dropped by prosecutors last year. Both attorneys have been inducted into the Litigation Trial Lawyers Hall of Fame, the Cooperstown of the profession. And Keker, like Cotchett, is no stranger to combat outside the courtroom—a former Marine, he earned a Purple Heart in Vietnam after he was shot in the elbow and nearly lost his arm. Keker still retains a military bearing, and paintings of Napoleon bedeck the walls of his office on Battery Street.
For those who enjoy a great pitching matchup, this showdown should provide plenty of web gems—that is, if it survives a motion by Keker to dismiss the case, which the court will consider soon. “I admire Joe and respect him as a lawyer,” says Keker of his opponent. “But I think he’s absolutely wrong in this case. The lawsuit he brings is not a proper one. We think it should be dismissed on its face.”
Cotchett’s complaint charges that MLB has deprived San Jose of the A’s by granting the Giants exclusive territorial rights to Santa Clara County. The suit directly (and, some say, audaciously) challenges the 91-year exemption to antitrust laws granted to baseball by the Supreme Court and upheld by two subsequent high court rulings. “Major League Baseball is the only pro sport that has an antitrust exemption,” Cotchett says. “It doesn’t just cover teams moving from city to city. It has to do with beer sales, hot dogs, uniforms, everything. It’s their little baby, and they’re going to cling to it. So you can imagine how they’re going to go after me.”
Some experts believe that Cotchett may be able to pull off a late-inning victory because baseball’s unique anti-trust exemption is a vestige of an earlier era. “In the 1920s, the Supreme Court ruled that baseball was not governed by the antitrust laws because it was not interstate commerce,” writes Stuart Banner, a UCLA law professor, in The Baseball Trust: A History of Baseball’s Antitrust Exemption. “Clearly, today baseball is interstate commerce.”
But other legal observers say that Cotchett has as much chance of winning the suit as Pablo Sandoval has of becoming svelte. Craig Calcaterra, a lawyer and baseball blogger for NBCSports.com, believes that the San Jose suit is weakened by the fact that it was filed on behalf of San Jose, not the A’s, and that the city’s legal rights have not been impinged upon. “This is less a legal case than it is a public relations event,” says Calcaterra. “San Jose is fed up with baseball’s failure to act, and this is a way to get their attention.”
Cotchett believes that eventually he can prove the doubters wrong. At the tail end of his legal career, he has the air of a man with nothing to lose and everything to win. And he intends to win. “I don’t know whether I’m going to prevail in the lower court,” he says. “But if I get to the Supreme Court, I believe I can win. And I hope to do that.”
Originally published in the October issue of San Francisco