A federal judge from the Northern District of Texas has delivered a modest victory to both Dallas Cowboys owner Jerry Jones and the National Football League, who were sued by fans that were displaced at the 2011 Super Bowl when the NFL failed to complete construction of additional seating for the big game as promised.
But the war seems far from over. Fresh off that ruling in November, the plaintiffs amended two of their three claims to provide more specificity as the judge requested.
The third claim, breach of implied covenant of good faith and fair dealing, had been dismissed with prejudice and could not be re-filed.
On February 6, 2011, Cowboys Stadium hosted Super Bowl XLV. Tickets were offered for sale to the general public. The court noted that on each ticket, its face value and the following “Super Bowl Ticket Terms” were printed: “admission may be refused or ticket holder ejected at the sole discretion of the National Football League, subject to refund. . . .”
The plaintiffs alleged that to accommodate more spectators, Jones and the National Football League planned to add temporary seating in Cowboys Stadium. But by game time, installation of the temporary seats had not been completed.
“Three separate groups of ticket holders claim to have been affected by the partial completion of the temporary seating: (1) those who were seated, but had an obstructed view of the field and stadium; (2) those who were relocated to seats that differed from their ticketed seating or were delayed in gaining access to their seats; and (3) those who were denied seats to the game, some of whom watched it on monitors in the Miller Lite Club.
The day after the game, NFL Commissioner Roger Goodell took responsibility for “the failure,” and the league offered compensation.
The “Displaced Group” were given three choices: (1) payment of $2,400 (three times the face value of a game ticket) plus a ticket to the next Super Bowl game; (2) a ticket to any future Super Bowl game of the fan’s choice, plus airfare and hotel accommodations; or (3) the greater of either $5,000 or the amount of expenses actually incurred by the ticketholder, including the ticket price, all travel expenses, food expenses at a daily rate of $100, and hotel expenses.
The “Relocated/Delayed Group” had two options: (1) payment of the face value of the game ticket; or (2) one free ticket to any future Super Bowl game of the fan’s choice. A person accepting any of the options was required to give a release.
No offer was made to the “Obstructed View Group.”
Nevertheless, the plaintiffs sued late last spring, alleging breach of contract, breach of the covenant of good faith and fair dealing, fraud, deceit and concealment, and negligent misrepresentation. The defendants moved to dismiss.
On the breach of contract claim against the Cowboys, the court found that the plaintiffs “have stated no facts supporting the conclusion that the Cowboys (Jerry Jones, Blue & Silver, Inc., Dallas Cowboys Football Club, LTD., JWJ Corporation, Cowboys Stadium, L.P., Cowboys Stadium, G.P., LLC) were parties to any contract with the plaintiffs. The fact that the Super Bowl was held at Cowboys Stadium and that Jerry Jones stated afterwards that he accepted responsibility for the seating problems does not mean that the Cowboys became parties to a contract between the NFL and the plaintiffs.” While dismissing that claim against the Cowboys, the court left the door open for the plaintiffs to amend its complaint.
As for the breach of contract claim against the NFL, the court wrote that it would be premature to dismiss the complaint at the pleadings stage. “There is no proof in the record that the offers of compensation were in fact sent to the individual Plaintiffs or to other class members,” wrote the court. “Furthermore, the issue of what recoverable damages the plaintiffs actually suffered cannot be determined based upon the pleadings alone.”
As for the claim for breach of an implied covenant of good faith and fair dealing, the court was less charitable toward the plaintiffs, writing that a “common-law duty of good faith and fair dealing only arises when a contract creates or governs a special relationship between the parties…. The Court concludes as a matter of law that the purchase of a Super Bowl ticket from the NFL does not create such a duty.”
As for the plaintiffs’ allegation that the defendants “made affirmative misrepresentations and fraudulently concealed material facts concerning the tickets that the plaintiffs purchased for Super Bowl XLV,” the court noted that the plaintiffs failed to plead fraud with the requisite “particularity.” However, the plaintiffs may re-plead their alleged fraud claim (and the negligent misrepresentation claim for that matter) within 21 days of the date of this Order, stating the who, what, when, where, and how of such misrepresentations.”
Both sides treated the ruling as a victory.
“For months, the NFL has attempted legal maneuver after legal maneuver to deny the fans what they are entitled to,” said attorney Michael Avenatti of Eagan Avenatti in a written statement. “But in litigation, much like in football, you have to play four quarters. Now that the court has ruled, we look forward to learning from the executives of the NFL what they knew before the game and what they did about it, if anything.”
In the amended complaint, Avenatti tried again to connect Jones as a defendant, noting that he “was unabashed in his desire to set the attendance record at all costs.” He went on to quote Jones as saying: “We’re thinking of selling more tickets. I know this. However many we print, people will buy.”
In response to the amended complaint, NFL spokesman Brian McCarthy told the media that “when the court dismissed most of the claims in the lawsuit last month, it took the customary step of giving the plaintiffs an opportunity to try to fix the problems. We are reviewing their attempt to resurrect these claims in the amended lawsuit and will respond in due course, likely with a further motion to dismiss. But the suggestion that the NFL somehow defrauded fans has no merit.”
Steve Simms et al. v. Jerral “Jerry” Wayne Jones et al.; N.D. Tex; CIVIL ACTION NO. 3:11-CV-0248-MConsolidated with3:11-CV-345-M, 2011 U.S. Dist. LEXIS 137783; 11/30/11.
Attorneys of Record: (for plaintiffs) Christopher S Ayres, LEAD ATTORNEY, Ayres Law Office, P.C., Addison, TX; Ahmed Ibrahim, Lisa A Wegner, PRO HAC VICE, Eagan Avenatti LLP, Newport Beach, CA; Jason M Frank, PRO HAC VICE, Eagan Avenatti LLP, Newport, CA; Michael J Avenatti, PRO HAC VICE, Eagan Avenatti, Newport Beach, CA; R Jack Ayres, Jr, Law Offices of R Jack Ayres Jr, Addison, TX.; Charles W Branham, III, Hamilton Philip Lindley, Jeffrey M Goldfarb, Goldfarb Branham LLP, Dallas, TX. (for defendant Jerry Jones) Levi G McCathern, II, LEAD ATTORNEY, McCathern Mooty, Dallas, TX; David W Dodge, McCathern Mooty Hyde Grinke, LLP, Dallas, TX; Hossain Arnold Shokouhi, Paul A Grinke, McCathern Mooty LLP, Dallas, TX. (for defendant National Football League) George W Bramblett, Jr, LEAD ATTORNEY, Daniel H Gold, R Thaddeus Behrens, Haynes & Boone LLP, Dallas, TX; Levi G McCathern, II, McCathern Mooty, Dallas, TX.
