The Patriot Prince of Darkness Prevails


Before providing the download on last week's judicial conference, we pause to take a rare foray outside the First Circuit to acknowledge a subject matter of relevance to the New England community.  Yesterday the Third Circuit affirmed the dismissal of a fraud case against Bill Belichick, the Patriots and the NFL based on the "Spygate" scandal in which the Patriots engaged in surreptitious taping of their opponents.

Bingham McCutchen and Blank Rome represented the Patriots and He Who Must Be Obeyed, aka the Coach, and Skadden Arps the NFL.  The plaintiff was a Jets fan seeking class certification (is there really more than one?)  The Complaint contained nine counts, including tortious interference, common law fraud, violation of the NJ deceptive trade practices act, racketeering, breach of quasi-contract and violation of NJ's statutory fraud act.  (This in football parlance, is known as "piling on.")  He sought approximately $185 million ($61 million and change trebled, based on the cost of NJ fans to watch 8 Jets-Patriots games from 2000 to 2007).

In a rare case of solidarity with the Pats, the Jets filed an amicus brief supporting the motion to dismiss for failure to state a claim.

Going into the factual allegations in some depth, citing Twombly, the Court  of Appeals agreed with the district court that the plaintiff had no legally cognizable right, interest or injury.  Citing case law including a Holmes opinion upholding the ejection of a ticketholder suspected of drugging a horse, the Court found that the majority precedent says that ticketholders to sports events have nothing more than a revocable license to see the show.  While this precedent has been under recent attack in the ejection context, here ejection or exclusion was not the issue.  Rather, the question was whether the plaintiff had a right to see an "honest" game.  The answer is no – he has a license to enter and see what occurs.  Precedent relied upon included a case brought after Mike Tyson bit part of his opponent's ear off in a prize fight.  (Castillo v. Tyson, 701 N.Y.S.2d 423 (App. Div. 2000).  There, the NY court noted that "the plaintiffs received what they paid fair, namely 'the right to view whatever event transpired."' (p. 425).

The World Wrestling Foundation is probably breathing a sigh of relief.   

The opinion is worth reading if only because it cites a quote from precedent dear to me because it involves the Cubs (once from Chicago, you are doomed to root for them ad nauseum):  "That the Chicago Cubs turn out to be the doormat of the National League would not entitle the ticketholder to a refund for the remaining games, any more than the star tenor's largynitis entitles the operagoer to a refund when the understudy takes over the role."  Seko Auto Freight, Inc. v. Transworld Systems, Inc. 22 F.3d 773, 774 (7th Cir. 2004). (The Seventh Circuit in that decision said the proper remedy was to go to the South Side and start rooting for the White Sox, which is clearly wrong, but that's for another day).

The plaintiff here got to see NFL football games.  That's all he was entitled to see.  While what Darth Belichick was doing might not be deemed sporting, the rules are complicated and players often engage in intentional infractions as a part of the game.  The Court noted that the rules allowed teams to engage in what an ordinary person might deem dishonest behavior, including lipreading and use of binoculars and other types of taping, and also referenced how BB and the Pats got spanked by their  judge, the NFL commissioner.  It was not up to the Court, it said, to second-guess this enforcement of the NFL's own rules.

Finally, the Court said that it did not condone this behavior and was not opining whether sports fans are treated shabbily.  But just as the ordinary remedy for obnoxious speech under the First Amendment is more speech, the appropriate response to such unstellar conduct is whining to the NFL or not buying tickets — not filing suit.   

So the Pats are safe for another day.  Now if they could only shore up their defense ….