BOSTON (CN) - The adult children of baseball legend Roberto Clemente told a First Circuit panel Tuesday that the government of Puerto Rico misappropriated their father's legacy to extort money from citizens during a financial crisis, tarnishing his popularity in the process.

The government forced people to pay $21 for a license plate with Clemente's picture on it and an additional $5 for a registration label celebrating the 50th anniversary of his 3,000th hit, which together raised some $15 million. The family never approved any of this, but many Puerto Ricans became angry because they mistakenly assumed that the family benefited from a mandatory fee hike during financial hard times.

In addition, the government took over a sports complex for children that the family had supported in order to build a new one that was nominally dedicated to Clemente but that the family strongly opposed. 

This "seems to be a pretty unfair situation," U.S. Circuit Judge Kermit Lipez said during oral arguments Tuesday.

But the three-judge panel appeared perturbed the family chose to sue in federal court - which raised a thicket of highly complex issues under the Fifth, 11th and 14th Amendments - when they could have sued in a Puerto Rico court instead.

"You could have avoided all these sovereign immunity and 11th Amendment issues if you had pursued the case in state court," Lipez told the Clementes' lawyer, Wencong Fa of Nashville, Tennessee. "Why didn't you?"

Clemente was a Hall-of-Fame Pittsburgh Pirates right-fielder who played in 15 All-Star games, won a Gold Glove award in 12 straight seasons, was National League MVP in 1966 and had a lifetime batting average of .317. He was also known for his charity work and died at age 38 in a plane crash while delivering supplies to earthquake victims in Nicaragua.

The family claims Puerto Rico violated federal trademark law and took their property without compensation in violation of the Fifth Amendment. "Roberto Clemente was one of the most famous baseball players of all time," Fa said, and "if the government can do this to his family, it can do it to anybody."

But a trial judge threw the case out, finding Puerto Rico immune, that the license fees weren't commercial activity and the government didn't prevent the family from using the trademark in other ways.

At oral argument, the panel engaged in a head-spinning rapid-fire debate over whether Puerto Rico has sovereign immunity, whether Congress intended to abrogate that immunity under federal trademark law, whether Congress had the constitutional authority to do so, and whether a territory can be sued in federal court for a Fifth Amendment violation.

On a more mundane level, U.S. Circuit Chief Judge David Barron and U.S. Circuit Judge O. Rogeriee Thompson, both Barack Obama appointees, sparred with the attorneys over whether making someone buy a license plate is "commerce" under the trademark law or merely a regulatory fee.

And Lipez, a Bill Clinton appointee, wondered why the use of Clemente's likeness was a taking under the Fifth Amendment inasmuch as it wasn't physical property and the family could still use the name.

Fa answered that the government took away the family's right to prevent others from using their mark. "A trademark isn't a trademark if you can't exclude others from using it," he said.

Lipez was sympathetic to the family. "Putting aside all these critical legal issues, there is something in a common-sense way unattractive about the position the commonwealth is taking," he said. "A lot of people felt the money was being raised for the Clemente family, and that tarnished their reputation. It's troublesome to think that they might not have any redress for the unfair use of the name."

On the other hand, he seemed to think it wasn't necessary that the family's redress come in federal court. "What options are open?" he asked.

Puerto Rico's attorney Mariola Abreu Acevedo jumped at the opportunity and said that the family had brought pendent claims under Puerto Rico law that were dismissed without prejudice and could be brought separately. The family could bring a takings claim in a Puerto Rico court and sue under Puerto Rico trademark law, she proposed.

Source: Courthouse News Service