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Originally published Sunday, June 22, 2008 at 12:00 AM

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Sonics trial: What's under all the drama

Leaving aside the bickering about which side has behaved more boorishly, the core legal dispute in the trial remains whether the Sonics can be forced to play at KeyArena through the end of the lease in September 2010.

Seattle Times staff reporter

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Was Clay Bennett "a man possessed" to steal the Sonics for Oklahoma City?

Did Seattle leaders conspire in a "Machiavellian plan" to bleed Bennett into selling the team?

And why did the Sonics' staff fail to serve cucumber sandwiches to Sherman Alexie?

Such questions consumed much of last week's courtroom time during the contentious federal trial over the future of the Sonics — as did dueling economists and a poll suggesting most of Seattle doesn't care about the team.

But what does any of it have to do with the KeyArena lease?

Leaving aside the bickering about which side has behaved more boorishly — and it seems there is plenty of blame to go around — the core legal dispute in the trial remains whether the Sonics can be forced to play at KeyArena through the end of the lease in September 2010.

The trial resumes Thursday.

The lease, which Bennett agreed to honor when he bought the team in 2006, contains no provision for an early buyout. It was also written with a "specific performance" clause, which was supposed to mean the team couldn't leave early.

But citing $30 million a year in losses, Bennett says team owners should be allowed to pay cash to get out early and move to Oklahoma City. He offered $26.5 million in February, which the city rejected.

Although Seattle's case might appear straightforward, experts say courts have been inclined to rule that such landlord-tenant disputes can be resolved with money. Someone who rents an apartment, for example, can typically break the lease in exchange for paying a penalty. They can't be forced to remain in the apartment.

"I think the truth is the Sonics had the advantage going into this," said Michael McCann, a Boston College law professor and legal analyst for SportsIllustrated.com. "The tradition of courts has been to substitute monetary damages."

A crucial test for the city to reverse that presumption may be whether it can prove that the Sonics are a unique tenant — one that brings benefits to the city that cannot be calculated in dollars and cents.

The city has argued that point, bringing in witnesses to talk about the Sonics' charity work and the team's spillover economic benefits to the community.

Seattle also brought in author and National Book Award winner Alexie — who compared NBA players to Greek gods — to speak for passionate fans who would miss the team. (He brought up the missing cucumber sandwiches, which had been served at a past season-ticket holder event, to imply Bennett had deliberately sabotaged fan interest.)

The city has "a strong argument" when it comes to the unique benefits of having an NBA team as its arena tenant, said Alfred Brophy, a law professor at the University of Alabama and an expert in landlord-tenant law.

"Public interest is a trump card that judges throw down to resolve these kinds of huge cases, especially when you have something like a building that a lot of people use, or a highway, or in this case, a city's treasured team," Brophy said in an e-mail.

Brophy dismissed Bennett's claim that the team would lose $60 million over the final two seasons at KeyArena.

"The team's fear that they'll lose money isn't a factor in whether they've broken the contract. Just because you struck a bad deal and you're going to lose money isn't a basis for getting out of a contract," he said.

"Think of all the people who took out mortgages that are now worth more than their houses; bad business sense isn't a basis for escaping a contract."

Of course, no one knows how U.S. District Judge Marsha Pechman will view those issues or when she will rule.

She told attorneys last week that she'd discovered case law that neither side had discussed in pretrial briefs and said she'd ask them to address those cases in closing arguments scheduled for Thursday.

However, at least twice during the trial, Pechman has appeared interested in the notion that a monetary calculation of the Sonics' value can be made.

On Tuesday, noted sports economist Andrew Zimbalist testified that the Sonics "have a very substantial intangible economic benefit" but that — conveniently for the city's case — it would be impossible to calculate the dollar value of those benefits.

Sonics attorney Paul Taylor skewered Zimbalist during cross examination, noting that he'd written a report two years ago for Anaheim, Calif., that arrived at a dollar amount of $7.75 million for at least some of the intangible benefits of the Angels baseball team.

Just before court adjourned for the day, Pechman turned to Zimbalist.

"Do I understand that you came up with a number in Los Angeles ... but you are unable to come up with a number in Seattle?" Pechman said.

Zimbalist said yes, but tried to explain that the Anaheim situation was different. Pechman cut him off.

"Thank you. You've answered my question," she said.

On Thursday, Pechman quizzed economist Lon Hatamiya, who had been called by the city to discuss his estimate that the Sonics bring $188 million a year to the Seattle area.

"So it is your opinion then that every business can be evaluated with a dollar number?" Pechman asked.

"That is correct," Hatamiya said. "And it has been shown through empirical evidence that can occur."

"So evaluating this sports team, then, is no different than evaluating a box store?" Pechman said.

Hatamiya responded: "That's correct. That is exactly right."

Bennett's legal team has argued that forcing him to remain in Seattle for two more years would be unfair — citing evidence that civic leaders conspired to use the KeyArena lawsuit to make Bennett's situation so bad he'd sell the team.

Instead of playing the final two seasons remaining on the KeyArena lease, Bennett says, a cash payment would "honor" the contract.

Bennett has resisted the idea that he is "breaching" the lease, saying on the witness stand he filed an arbitration demand last fall — the first formal step toward relocation — "to understand our obligations more clearly."

Seattle's main response has been to force Bennett to acknowledge he knew when he bought the team that KeyArena is the NBA's smallest venue and the Sonics had been losing money under the lease there for several years.

On Tuesday, Seattle's lead attorney, Paul Lawrence, questioned Bennett.

"You understood the risk that you would be sitting here today without a new building, without a renegotiated lease, with a lease that obligates you to perform through the 2009-2010 season," Lawrence said, "a lease under which there were over $20 million a year operating losses at the time you signed this [lease] assumption document, correct, sir?"

"We knew there would be risks, yes," Bennett said. But he added: "I never envisioned sitting here today."

Jim Brunner: 206-515-5628 or jbrunner@seattletimes.com

Copyright © 2008 The Seattle Times Company

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