Up on the Roof: Ongoing Legal Battle Poisoning Mystique

Long before it became big business to construct bleachers and fill entire floors with viewing lounges, The Drifters knew a little something about the mystique of being on a Wrigley rooftop. And while they weren’t singing about our beloved ballpark (the group and the song’s writers, one of whom was the incomparable Carole King, were from New York), I think the sentiment holds.

When this old world starts getting me down
And people are just too much for me to face
I climb way up to the top of the stairs
And all my cares just drift right into space
On the roof, it’s peaceful as can be
And there the world below can’t bother me
Let me tell you now

When I come home feelin’ tired and beat
I go up where the air is fresh and sweet (up on the roof)
I get away from the hustling crowd
And all that rat-race noise down in the street (up on the roof)
On the roof, the only place I know
Where you just have to wish to make it so
Let’s go up on the roof (up on the roof)

At night the stars put on a show for free
And, darling, you can share it all with me

I keep a-tellin’ you

Right smack dab in the middle of town
I’ve found a paradise that’s trouble proof (up on the roof)
And if this world starts getting you down
There’s room enough for two
Up on the roof (up on the roof)

When I was first becoming cognizant of the Cubs as something that was more than just a baseball team, it was through the lenses of various WGN cameras. And while I was too young to grasp the professional voyeurism that permeated those summer afternoon broadcasts, there was just something about those rooftops that held my imagination.

Back in the early 80’s, they were just flat, undeveloped expanses of black tar paper, populated by a few tenants and their friends. And while these folks weren’t necessarily drifters, they were a far cry from the yuppies and free-wheeling party-goers (not that there’s anything wrong with that) who crowd the shiny bleachers nowadays.

There were no fully-stocked bars and all-you-can-eat buffets, no tickets, no gaggles of girls in matching shirts and feather boas or guys getting blackout drunk while celebrating their last days pre-matrimony. Frayed folding chairs and battered Igloo coolers were the order of the day as pasty Midwesterners got toasted on cheap beer and sunshine. It was the surest way to get 1000% of the recommended daily value of vitamins D and Pee.

Even as a little kid, I knew that was something I wanted to do. My brother and I would sit in my Grandpap’s living room and watch game after game, or maybe we’d have them on the radio as we played outside. The rooftops were simply the adult version of that same childhood pastime.

Now, however, the quaint little hideaways on Waveland and Sheffield have become a cottage industry. Not that I’m lamenting the advance of time and capitalism; quite the contrary. But I’m a grown-up now and I’ve put away childish things, just as the rooftops have long since given up the ghost of innocence.

But as they’ve become embroiled in a battle with the Cubs, it seems as though these monuments to free enterprise are reaching back to the past in a last-ditch attempt to grasp for a few straws of nostalgic naivete. And while I think it unlikely they’ll find a needle in that haystack, there have certainly been a few pricks involved.

Crain’s sports business reporter Danny Ecker has been on top of this situation from the start, and he wrote a bit more about the back-and-forth from yesterday’s court proceedings (excerpted below).

Rooftop lawyer Tom Lombardo reiterated claims in the lawsuit that Cubs executives specifically threatened to block rooftop views with outfield signage unless they sold their properties to Cubs ownership at fire-sale prices or agreed to raise the price at which they sell tickets.

Lombardo also argued that the Cubs’ putting up video boards is an attempt to monopolize the market for Cubs tickets, since the rooftops are a competitor of the team in addition to a business partner.

The Cubs countered the monopolization claim by relying on Major League Baseball’s antitrust exemption, which says baseball is a game and not a business, so it cannot be cited for monopolization.

But even if that’s ignored, the team argues that the rooftop business is a “derivative product” and not a “joint product” with Cubs baseball. The Cubs also said they own the product of Cubs baseball, so they cannot be cited for monopolizing their own product.

The rooftops are “a derivative product sold for free to a distributor,” said Cubs lawyer Dan Laytin. “Under those circumstances, there is no court, there is no authority, there is no theory for liability” under the Sherman Act.

Point. Counter-point. But wait, there’s more:

While rooftop lawyer Abraham Brustein admitted he was not party to drawing up the contract, he said it would have been “inconceivable” that the rooftops would have agreed to allow the Cubs to block their views as long as they got a simple city permit to build something like a video board.

Cubs lawyer Andrew Kassof contended that the expansion clause was used in a 2008 legal proceeding and that its application was not restricted to the 2005 bleacher expansion. He also did a detailed breakdown of several words in the clause, including a thorough examination of the definition of the word “any” as it pertains to “any expansion” and said the phrase “other barriers” in the clause about what the Cubs could put up in the outfield included only things like windscreens, flags and balloons as referenced in the language, and did not include a video board.

If I were Mr. Kassof, I’d have punctuated this portion of the hearing by licking my finger and then touching my arm and saying, “Hisssssss…burn!” Then again, the Cubs’ counselor saved the real zinger for later.

The rooftops cited their customer surveys indicating that they’ll cancel their orders and said the properties could easily face foreclosure as early as this year if they don’t have rooftop business income and cannot pay off their mortgage.

“There’s no way we survive until next year,” Lombardo said of the fallout if a video board is allowed.

The Cubs, however, noted that commodities trader Ed McCarthy owns the properties and the businesses, which means rent payments from the rooftop businesses to their property owner amount to “moving money around in the same cash register.”

As to the prospect of them facing foreclosure in the months ahead: “There’s a greater chance that (Cubs manager) Joe Maddon asks my 5-year-old to play shortstop,” Kassof said. He noted that the rooftops paid the team a royalty check earlier this month for more than $367,000 despite saying in a court filing that they had less than $200,000 in available cash.

Game, set, match. The line about Maddon asking his son to play short (which some of you might prefer to Starlin Castro) was absolutely priceless. In representing the rooftops, Lombardo and Brustein pulled out their arguments for the assembled court to see. Then the Cubs’ duo of Laytin and Kassof pulled theirs out and, well, it wasn’t much of a contest.

Of course, I’m notably and admittedly biased in this matter. Remember when I said that I’m in favor of capitalism and free enterprise? Well, the Cubs are the bigger enterprise here. I also fail to see how the bleacher expansion significantly impacts a business that was never built on sightlines in the first place.

The rooftops have, or at least had, a mystique. They were the place kids grew up wanting to visit. But then they became that favorite athlete of yours who blew past the waiting hordes of children requesting and autograph. And now they’re that same athlete after you saw him doing blow at the bar, stiffing the waitress on the tip, and picking up a DUI.

On my unplanned drive home from O’Hare (thanks, United!), I was listening to the 80’s station on XM and was blessed with Bobby Brown’s My Prerogative. And while the oldie above might have been what the rooftops were, Brown’s hit better describes this new edition.

Everybody’s talkin all this stuff about me (Now now)
Why don’t they just let me live (Oh oh oh)
I don’t need permission
Make my own decisions (Oh!)
That’s my prerogative

They say I’m crazy
I really don’t care
That’s my prerogative
They say I’m nasty
But I don’t give a damn

And that pretty much sums up my view of what the rooftops are doing at this point. Just like an athlete doesn’t necessarily have a responsibility to be a decent human being, a business doesn’t need me to understand or appreciate what their doing. That’s their prerogative. Of course, my response is to let my money talk, or to stay silent as the case may be.

Speaking of staying silent, I think I’ve used up my allotment of lyrics and innuendo, so I’ll go ahead and log off. Sadly, though, I don’t think we’ve heard the end of this neighborhood squabble.