Revenue Sharing Deal Cubs Struck with Rooftop Owners Holding Up Wrigley Field Renovations

During the 2013 baseball season, the City of Chicago approved a $500 million plan to renovate Wrigley Field and build an adjacent office building and hotel.  Included in the renovation plan is the proposed construction of a large video board behind the left field bleachers and signs advertising Budweiser behind the right field bleachers.  The Cubs have delayed the start of this project, however, because the owners of the rooftop businesses across from the ballpark have threatened to file a lawsuit against the Cubs because the proposed signage will obstruct the views of the field from their respective rooftop businesses.

Rooftop Litigation History

Detroit Base-Ball Club v. Deppert, 61 Mich. 63, 27 N.W. 856 (Mich., 1886)

Disputes over neighbors viewing ballgames are nothing new.  In 1885, John Deppert, Jr. constructed a rooftop stand on his barn that overlooked Recreation Park, home to the National League’s Detroit Wolverines, future Hall of Famer Sam Thompson and a rotation featuring the likes of men named Stump Wiedman, Pretzels Getzien and Lady Baldwin.  The Wolverines claimed that they had to pay $3000 per month for rent and that the 50 cent admission fees, helped to offset this cost.  They were thereby “annoyed” by Deppert charging people, between 25 to 100 per game, to watch the games from his property and asked the court to forever ban Deppert from using his property in this manner.

Deppert countered that the ballgames had ruined the quiet enjoyment of his premises, that ballplayers often trespassed on his land in pursuit of the ball and that he often had to call the police to “quell fights and brawls of the roughs who assemble there to witness the games.”  He further claimed that his viewing stand had passed the city’s building inspection and that he had the legal right to charge admission and sell refreshments.

The trial court dismissed the Wolverines case and the ball club appealed.  The Supreme Court of Michigan agreed that the Wolverines had no right to control the use of the adjoining property; therefore, Deppert was within his rights to erect a stand on his barn roof and sell refreshments to fans that wanted to watch the game.  Furthermore, there was no evidence that Deppert’s rooftop customers would otherwise have paid the fees to enter Recreation Park.

Similarly, the rooftops of the buildings across the street from Shibe Park were frequently filled with fans wanting a view of the Philadelphia Athletics game action.  While never happy about the situation, Connie Mack was pushed too far in the early 1930s when the rooftop operators started actively poaching fans from the ticket office lines.  Mack responded by building the “Spite Fence,” a solid wall that effectively blocked the view of the field from the buildings across 20th Street.

Lawsuits were filed but the “Spite Fence” remained in place throughout the remainder of the use of Shibe Park, later renamed Connie Mack Stadium.

The Current Dispute

Chicago National League Ball Club, Inc. v. Skybox on Waveland, LLC, 1:02-cv-09105 (N.D.IL.)

In this case, the Cubs sued the rooftop owners on December 16, 2002 seeking compensatory damages, disgorgement to the Cubs of the defendants’ profits and a permanent injunction prohibiting the rooftop owners from selling admissions to view live baseball games at Wrigley Field, among other remedies and under several causes of action.  According to the complaint, the Cubs alleged that the defendant rooftop operators “…have unlawfully misappropriated the Cubs’ property, infringed its copyrights and misleadingly associated themselves with the Cubs and Wrigley Field.  By doing so, Defendants have been able to operate multi-million dollar businesses in and atop buildings immediately outside Wrigley Field and unjustly enrich themselves to the tune of millions of dollars each year, while paying the Cubs absolutely nothing.”

In their statement of undisputed facts, the defendants countered that the rooftops had been used to view games since the park opened on April 23, 1914 as home of the Chicago Federal League team and that the Cubs conceded that their present management knew the rooftop businesses were selling admissions since at least the late 1980s.

In May 1998, the City of Chicago enacted an ordinance authorizing the rooftops to operate as “special clubs,” which allowed them to sell admissions to view Cubs games under city license.  The City wanted their piece of the action and interestingly, the Cubs made no formal objection to the ordinance.  Based on the licensure and lack of any opposition from the Cubs, the rooftop owners made substantial improvements to enhance the experience and to meet new City specifications.

By January 27, 2004, the Cubs had reached a written settlement with owners of 10 of the defendant rooftop businesses which assured that the Cubs “would not erect windscreens or other barriers to obstruct the views of the [settling rooftops]” for a period of 20 years.  The remaining rooftop owners later settled and the case was dismissed on April 8, 2004, just days ahead of the Cubs home opener set for April 12th.

After the 2004 agreement legitimized their businesses, the rooftop owners made further improvements to the properties.  Long gone are the days that a rooftop experience meant an ice-filled trough of beer and hot dogs made on a single Weber.  The rooftop operations are now sophisticated businesses with luxurious accommodations, enhanced food and beverage service and even electronic ticketing.

As a result of the settlement agreement of Cubs’ 2002 lawsuit, the team now has legitimate concerns that a subsequent lawsuit by the rooftop owners to enforce the terms of the contract could ultimately result in the award of monetary damages to the rooftop owners; cause further delays in the commencement of the construction project due to a temporary restraining order; or, be the basis of an injunction preventing the Cubs from erecting the revenue-producing advertising platforms for the remainder of the rooftop revenue sharing agreement.

It is obvious that the rooftop owners need the Cubs more than the Cubs need them; however, the Cubs wanted their piece of the rooftop owners’ profits (estimated to be a payment to the Cubs in the range of $2 million annually) and now the Cubs have to deal with the potential that their massive renovation project will be held up by the threat of litigation over the blocking of the rooftop views.

JOHN RACANELLI is a Chicago lawyer with an insatiable interest in baseball-related litigation. When not rooting for his beloved Cubs (or working), he is probably reading a baseball book or blog, planning his next baseball trip, or enjoying downtime with his wife and family. He is probably the world’s foremost photographer of triple peanuts found at ballgames and likes to think he has one of the most complete collections of vintage handheld electronic baseball games known to exist. John is a member of the Emil Rothe (Chicago) SABR Chapter. Check out his corner of the internet at Baseball Law Reporter.

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