SAN FRANCISCO -- Joe Cotchett, the attorney representing San Jose, saved his best pitch for last. Standing at the courtroom podium, he waved a baseball autographed by Joe DiMaggio and an infielder's glove toward the bench.
"What this really is about," Cotchett said as he gripped the mitt, "is the business of baseball."
Well, not necessarily. Not if you were the three-judge federal panel at Tuesday's antitrust hearing, the one involving San Jose's case against Major League Baseball.
To the three judges, the case is instead about precedents and something called "standing" and the possible relevance of the reserve-system decision in Flood v. Kuhn to the Oakland A's situation. The actual antitrust issue is back burner, to be argued later only if the judges decree that's possible.
And because of that, it very much appears as if San Jose's case will not be a winner when the judges announce their decision sometime in the next two months -- at least if you go by their reactions and questions to the arguments offered on behalf of San Jose by Cotchett and his partner, Phil Gregory.
Such a rejection by the judges, incidentally, is not fatal for the chances of the A's ultimately moving to San Jose. The city still has a similar case pending against MLB in state court.
Also, even if both the federal and state cases are tossed out, San Jose is simply right back where it began. Civic officials must wait for MLB to decide what it wants to do about the A's. Oakland must still figure out a way to keep the team long term, if it can. (The recently signed "10-year" lease at the Oakland Coliseum, if you examine the fine print, gives the team an opt-out with just two years notice. And A's co-owner Lew Wolff said as recently as Monday that he remains interested in a San Jose ballpark, if he's permitted to pursue one.) This explains why the choice to take a swing against MLB in federal court was -- and is -- worth it for San Jose. The city loses nothing by failing. It just doesn't gain any ground. Although clearly, Cotchett and Gregory are prepared to go the distance.
"I suggest to you that whoever loses this case will take it to the Supreme Court," Cotchett said after Tuesday's hearing as he addressed reporters outside the courthouse.
Is this all worth the trouble? Of course. It's not fair or just that MLB commissioner Bud Selig can deny San Jose citizens the right to decide whether they want to build a downtown ballpark for the A's. But on Tuesday, the judges had to focus solely on the city's appeal for "standing" -- the right to bring the case -- along with Cotchett and Gregory's contention that the MLB antitrust exemption applies only to player contracts and not franchise movement.
Which is why, in a nutshell, Tuesday went very well for the business of baseball and very lousy for San Jose. The three judges were mostly skeptical of Gregory's argument that the city can challenge MLB because Wolff has signed an option agreement with the city to purchase the ballpark site near Diridon Train Station.
"Where's the damage to San Jose?" asked Judge Richard Clifton about that agreement. "Can't they sell the property to someone else?" Answer: Of course. But nothing enlivens a downtown more than a ballpark. Let's say that a fish market had been built at Third and King streets in San Francisco instead of the Giants' AT&T Park. Would the surrounding area now be booming with condos and restaurants? San Jose wants that same opportunity. That's the point.
Sorry, too hypothetical, chief judge Alex Kozinski seemed to be implying with his own questions. This dispute is between Wolff and MLB, not between San Jose and MLB.
"Why is the city not an innocent bystander here?" asked Kozinski.
By contrast, the questioning was much kinder and gentler when MLB attorney John Keker presented his side of the case. Anyone could read the tea leaves. Judges do not like to overturn precedents. Each time the MLB antitrust exemption has been challenged, a judge usually winds up suggesting that because the U.S. Congress basically created the antitrust exemption more than 100 years ago, it's up to those legislators to eradicate it.
And that's where San Jose runs into a solid brick wall of special interests. In a non-political world, the area's congressional representatives would be introducing legislation to support the city's claim. However, California's two senators are Dianne Feinstein (a former San Francisco mayor with close ties to the Giants, who are blocking the A's move) and Barbara Boxer (whose son is working for a group trying to keep the A's in Oakland).
What about the House of Representatives? San Jose's senior member, Zoe Lofgren, says she supports the city's antitrust claim but can't do much about it legislatively because Republicans control the house. And the minority leader is Nancy Pelosi, another Giants fan. Thus, everything remains stuck -- and will continue to be, if the federal panel rejects San Jose's appeal.
Meanwhile, here's a depressing thought: Come November, we could have a significant re-boot of the entire mess. By then, baseball will have named a new commissioner, as Selig moves toward his January retirement. San Jose will have a new mayor. As will Oakland, if the controversial Jean Quan is not re-elected. So the arguments may recycle all over again, only with new characters.
No fan base deserves such misery, no matter where those fans want the A's to end up. Maybe the federal judges will step in and offer a solution. But don't count on it. Incredible as it sounds, we're still only in the fourth or fifth inning of a game that shows no indications of a final result.