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All of which leaves Diamondbacks managing partner Jerry Colangelo and his investors in complete control of the publicly financed stadium and its immediate surroundings--unless Fader and his attorney, Kreamer, decide to challenge the restrictions in court.
Kreamer is encouraged by a 1997 Colorado Supreme Court decision in a case nearly identical to his client's. The Colorado high court ruled that the publishers of a baseball program had the right to sell the scorecards outside Coors Field, the stadium for the Colorado Rockies.
The Rockies had repeatedly arrested the publisher for trespass for selling the programs on public property that was leased to the team. Like the Bank One Ballpark, Coors Field was primarily financed with public money and is owned by a stadium district.
Arizona constitutional law expert and Arizona State University law professor Paul Bender says Fader would have at least an even chance of winning a suit brought in Arizona. But such cases are notoriously difficult, and the Diamondbacks can present a strong argument by saying they are exercising crowd control by limiting all commercial activity on the plaza.
But Fader also has some strong points, including the public financing of the stadium, the public nature of the plaza and that Fader's publication is much cheaper than the Diamondbacks'.
"The Diamondbacks look pretty bad in trying to get rid of these people," Bender says.
And the Diamondbacks aren't done asserting control over the plaza.
The team, through the stadium district, expects soon to assume control over the city's right-of-way around the plaza's perimeter, says stadium district attorney Tom Irvine.
"The stadium site will go to the back of the curb," Irvine says.
Once the district acquires the city right-of-way through ongoing condemnation litigation, the team will be able to force Fader, or anyone else selling unauthorized publications, completely off the public plaza.
Fader never expected to be faced with a constitutional crisis when he started his publication. He's asking Colangelo to stop the bullying and expensive legal tactics and simply compete.
"We offer the fans an alternative choice," Fader says. "Let's compete, Jerry. You've got your $5 program and I've got my $1 program. Let's see what the fans like."