By Phillip Movaghar & Jeff Birren
On May 2, 2015 Floyd Mayweather, Jr. met and defeated Manny Pacquiao in one of the most commercially successful boxing matches of all time. The fight took place at the MGM Grand Garden in Las Vegas. Tickets cost between $1,500 and $7,500 and sold out within minutes of going on sale, and those same tickets were resold on the secondary market for up to the mind-numbing cost of $231,000 (In re Pacquiao — Mayweather Boxing Match Pay Per View Litigation, Case No. 17-56366 and related cases, Ninth Circuit Court of Appeals, November 11, 2019 (“Pacquiao”) at 19). Commercial establishments were charged $10,000 to air the match (Id.).
The day before the fight, Pacquiao and his personal adviser completed a Nevada required questionnaire. Under penalty of perjury Pacquiao represented that he had not suffered any injury, nor did he have a serious medical condition of any kind (Id.). However, soon after the fight it known that in early April Pacquiao had in fact suffered a serious shoulder injury that led him to discontinue sparring sessions (Id. at 18). This disclosure led angry fans and their rapacious lawyers to file lawsuits against Pacquiao, Mayweather, the fight’s promoter and his company, HBO, and others associated in various ways with the fight. It took the Ninth Circuit nearly thirteen full pages just to list the related class-action cases filed by the class action bar, ultimately all to no effect. The District Court dismissed all of the cases on the grounds that the fans received what they paid for: the fight, that is, they were able to attend or watch the fight, and the Ninth Circuit recently affirmed that dismissal (Id. at 17).
Let the Litigation Games Begin
The ensuing litigation began with a flourish. It included class action cases in a number of jurisdictions and that let the U.S, Judicial Panel on Multidistrict Litigation to create an MDL on August 17, 2015, and to send the combined cases to the Central District of California for pretrial proceedings (Id. at 21). Before the plaintiffs stopped filling cases they had managed to file 26 individual actions, 13 jurisdiction-specific complaints filed on behalf of pay-per-view purchasers, a single complaint filed on behalf of those who purchased tickets, and a single class complaint that had subclasses for California and New York subclasses of commercial entities that purchased the fight in order to televise it (Id.). The case was assigned to District Court Judge Gary R. Klausner, who accepted the filed cases in July 2016 (Id.). A second year of litigation followed. That year included Motions to Dismiss filed by the Defendants, and the usual Oppositions and Reply Briefs.
Judge Klausner dismissed all of the complaints with prejudice on August 25, 2017 (Id.). Judge Klausner issued an eleven-page ruling that succinctly stated that the fans had in fact received what they paid for, that is, the ability to see the fight. He found that Plaintiffs suffered no cognizable injury to a legally protected interest because “the alleged misrepresentations and omissions implicate the core of athletic competition” as opposed to “business outcomes and financial performance” (Id.).
Moreover, the fans had in fact received what they paid for, the right to watch the fight between Pacquiao and Mayweather. “Plaintiffs had no legally protected interest or right to see an exciting fight, a fight between two totally healthy and fully prepared boxers, or a fight that lived up to the significant pre-fight hype.” Furthermore, he stated that the “reason that competitive sports is so compelling is precisely because the outcome is always at least somewhat uncertain.” “Allowing sports fans to sue … could destroy the very thing that makes sports fandom so special” (AP, 8-25-17). The collection of Plaintiffs managed to file timely appeals to the Ninth Circuit.
The Ninth Circuit Affirms
Initial Analysis: The Court began its analysis of the instant case by acknowledging that its circuit had not yet considered the rights of a spectator disappointed by a sporting event, and accordingly it would review existing case law from sister circuits for guidance prior to turning to the allegations set forth by Plaintiffs (Pacquiao at 22). It then proceeded to explain how the majority of courts that have considered claims by dissatisfied sports fans follow what is known as the “license approach” (Id.). Under such an approach, a ticket holder enjoys only the right to view the ticketed event, and as such, no cognizable injury arises simply because the event did not meet the fans expectations (Id.).
In Bowers v. Fédération Internationale de l’Automobile, Formula One race attendees filed a putative class action seeking a refund for their expense of attending because, of the twenty cars that were expected to race, fourteen withdrew due to tire problems (489 F.3d 316, 319 (7th Cir. 2007)). Analyzing the plaintiff’s breach of contract claim, the court observed (echoing the ‘license approach’) “most states agree that the seller contracts only to admit the plaintiff to its property at a given time,” not “to provide the spectacle” (Id. at 321). Thus, the seller agrees “only to license the plaintiff to enter and ‘view whatever event transpire[s]’” (Id.). The Bowers court ultimately held that even assuming that plaintiffs possessed a “contractual right to a regulation Formula One race . . . they got such a race here” (Id.). Thus, because the Formula One racing regulations did not impose a “minimum car” requirement, and there was no reason to claim that a race did not occur, dismissal was appropriate (Id. at 322).
Similarly, in Mayer v Belichick, the Third Circuit affirmed the dismissal of a putative class action brought by a season ticket holder against the New England Patriots in response to the scandal known as “Spygate” (605 F.3d 223,225 (3rd Cir. 2010)). In Mayer, the Plaintiff asserted contract, fraud, and tort claims, alleging that during a game against the New York Jets, the Patriots surreptitiously videotaped their opponents’ sideline signals to use that information to their strategic advantage later in the season. This conduct allegedly violated the “rights of New York Jets ticket-holders who fully anticipated and contracted for a ticket to observe an honest match played in compliance with all laws and regulations and NFL rules” (Id.).The Third Circuit ultimately framed the dispositive question as whether the plaintiff stated an actionable injury arising out of the challenged conduct, to which it held that the plaintiff possessed either a license or, at best, a contractual right to enter the [Jets] Stadium . . . but nothing more (Id. at 231, 236). Because there was no allegation that this right had been injured in any way, the plaintiff had “suffered no cognizable injury to a legally projected right or interest” (Id.).
The Court then went on to note that most state courts have adopted a similar [license] approach. (Pacquiao at 24). For example, in Castillo v. Tyson, an appellate division of a New York state court affirmed the dismissal of putative class claims, including fraud, arising out of Mike Tyson’s infamous fight with Evander Holyfield where Tyson was disqualified for biting off part of Evander Holyfield’s ear (701 N.Y.S.2d 423 (N.Y. App. Div. 2000)). There, the plaintiffs argued that the disqualification interfered with their right to view a legitimate heavyweight title fight fought in accordance with the applicable rules and regulations of the governing boxing commission (Id. at 424). The Castillo court rejected this argument, reasoning that disqualification is “a possibility that a fight fan can reasonably expect” and the defendant’s public statement predicting a “sensational victory” and “the biggest fight of all time” did not negate [that] possibility (Id.at 424-25). While Castillo did not explicitly discuss the license approach, its dismissal was premised on the ground that “plaintiff received what they paid for, namely, the right to view whatever event transpired” (Id. at 425).
More recently, in Le Mon v. National Football League, the Louisiana Supreme Court held that season ticket holders had no “right of action” to challenge a referee’s missed call during the 2019 NFC Championship game (277 So. 3d 1166, 1167-68 & n.3 (La. 2019)). Similar to the cases above, the Le Mon court adopted the license approach and concluded the “plaintiffs’ purchase of a ticket merely granted them the right of entry and a seat at the game (Id. at 1168). As such, since the alleged missed call in no way interfered with these rights, dismissal of the plaintiff’s fraud and deceptive trade practices was warranted (Pacquaio at 25). The Le Mon court also reasoned more generally that public policy considerations weigh in favor of restricting the rights of spectators to bring actions based on the conduct of officials of professional sporting leagues (Le Mon at 1168).
Plaintiffs’ Claims: While Plaintiffs acknowledged the weight of authority against then, they characterized themselves as “defrauded consumers” who suffered a legally cognizable injury as opposed to “mere ‘disappointed’ sports fans” (Pacquaio at 25). In support of this argument, Plaintiffs relied on a different line of cases brought by season ticket holders (Id.).
The first case cited by Plaintiffs was Charpentier v. L.A. Rams Football Co.,(89 Cal. Rptr. 2d 115 (Ct. App 1999)). There, the plaintiff claimed that he was injured when he purchased tickets for the 1994 season (after the Rams allegedly falsely representing that they had no plans to leave Anaheim, thereby driving up season ticket prices) with the aim of reserving the location of his season tickets for future years when the Rams would be a better team (Id. at 117-18). The California Court of Appeal affirmed the dismissal of some of the plaintiff’s claims, but allowed the fraud claim to proceed, reasoning that season ticket holders may well have elected not to purchase tickets for a losing team had they known that the team would be moving out of state and that they would be unable to renew their tickets future seasons (Id. at 122-23).
Plaintiffs also cited to Beder v. Cleveland Browns Inc., in which triable issues of material fact precluded entering summary judgement on a fraud claim brought by season ticket holders (717 N.E.2d at 716, 722-23). In Beder, season ticket holders challenged the Browns’ move from Cleveland to Baltimore after the team’s owner falsely stated he would not move the team (Id. at 718, 722).
Court’s Ruling: The Court then turned to the instant case and first addressed the Plaintiffs’ argument that, like the season ticket holders in Charpentier and Beder, they have alleged a cognizable claim because they would not have purchased tickets to the fight but for the Defendants’ misrepresentations (Pacquiao at 27). With respect to Plaintiffs’ first argument, the Court did not find the season-ticket holder cases cited by Plaintiffs as having persuasive value because the claims asserted in those cases were not premised on an athlete’s performance during the sporting event (Id.). Fans of the Rams and the Browns purchased season tickets with the reasonable expectation that the games would be played in a certain location (i.e. Beder), or that they would be able to renew their reserved seat locations for the upcoming season (i.e. Charpentier) (Id.).
Here, although boxing fans can reasonably expect a regulation match, they also reasonably anticipate a measure of unpredictability that makes spectator sports exciting (Id.).Plaintiffs in the instant case paid to see a boxing match between two of the top fighters in the world, who were each medically cleared by Nevada State Athletic Commission (“NSAC”) physicians before they entered the ring. And while the match may have not lived up to the pre-fight hype, Pacquiao’s shoulder injury did not prevent him from lasting twelve rounds, the maximum for professional boxing contests (Id. at 28). Whatever subjective expectations Plaintiffs had before the match did not negate the possibility that the match would not, for one reason or another, live up to those expectations. This point is underscored by the nature of the statements Defendants made about Pacquiao’s physical condition in advance of the fight; “each [statement] was akin to puffery, which is generally not actionable. And Although Pacquiao responded “No” to a question during the NSAC pre-fight medical questionnaire asking whether he “had any injury to [his] shoulders . . . that needed evaluation or examination,” that questionnaire was not made available to the public before the match, and as such, Plaintiffs could not have relied on it. Thus, Plaintiffs received what they paid for — “a full-length regulation fight between two boxing legends” (Id.).
The Court then continued to explain that while the license approach may not fit perfectly with the facts of this case, it is not needed to conclude Plaintiffs suffered no legally cognizable injury (Id.). As the Seventh Circuit explained in Bowers, Formula One racing fans expect that, on any given day, numerous factors may prevent a competition with a full complement of twenty cars. See Bowers at 324 (describing, inter alia, track conditions, sudden illness, or a driver’s refusal to race as factors that might result in a competition involving fewer cars). In boxing, too, many factors may prevent a full-length match, or one that is exciting as fans hope. For example, a boxer might tear a muscle in the first round, or a referee might inadvertently come between the boxers, preventing one from landing a knockout punch (Pacquiao at 29). Thus, just as in Bowers, these are all possibilities that boxing fans can expect (Id.).
Finally, the court found Plaintiffs’ remaining argument that their claims are no different than claims alleging fraudulent inducement to generate sales of any other good or service to be unpersuasive (Id.). It explained that in a typical consumer protection case, consumers form beliefs about what they can expect by relying on public representations regarding the features of the good or service at issue. For example, when an advertisement states a certain product is equipped with “x” features, it gives rise to the reasonable expectation that the certain product in fact has “x” features. If the product lacks the advertised feature, consumers may bring suit, alleging they were injured because the advertisements misrepresented the product’s features (Id. at 29-30).
However, the Court found that these principles do not apply with equal force to claims brought by fans in the sports context (Id. at 30). Unlike a consumer good or service, a sports match is defined only by a set of rules that are well-known to its fans; the rest is determined by how the match is fought or the game is played. Moreover, nor can it be said that fan expectations are uniform: a play or punch that exceeds one fan’s expectations may disappoint the next. Hence, it is the “human drama of athletic competition” that distinguishes this case from garden-variety consumer protection cases (Id.).
The court then went on to note the undesirable consequences and public policy considerations if it were to rule for Plaintiff, which would hold Defendants liable for alleged omissions and misrepresentations regarding Pacquiao’s physical condition (Id.at 30-31). Taken to its logical extreme, Plaintiff’s theory would require all professional athletes to disclose any injury or risk a slew of lawsuits from disappointed fans (Id.). Such a result would fundamentally alter the nature of competitive sports as “opponents would [unequivocally] use such information to their strategic advantage, resulting in fewer games and matches won through fair play, and gone would be the days of athletes publicly declaring their strength and readiness for fear of a lawsuit alleging that fans were being misled” (Id.at 31).
Lastly, Plaintiff’s theory of liability also presents severe workability problems (Id.). For example, “would athletes be required to make an affirmative disclosure regarding any discomfort they felt or only with respect to diagnosed injuries? Would it matter whether a diagnosed injury caused an athlete no pain? And how far in advance of a sporting event should such disclosures be required?” (Id.). The court then quoted the Mayer court, acknowledging the potential floodgates of litigation likely to occur had the plaintiffs prevailed in that case: “this [c]ourt refuses to countenance a course of action that would only further burden already limited judicial recourses and force professional sports organizations and related individuals to expend money, time, and resources to defend against such litigation” (Mayer at 237).
Accordingly, the district court was therefore correct to “knock out” Plaintiff’s complaints and dismiss the case (Pacquiao at 33).
Conclusion
These pages have previously noted the unsuccessful efforts of other disappointed fans to seek legal redress for the results of sporting events. Controversial outcomes have long been part of the sports world, including the Dempsey-Tunney “long count” or Tom Brady’s fumble in the playoffs, and such miscarriages will always be part of the sporting world. Disappointed fans can take their sorrows to the bar, but not the Bar because, American courts have declared that such issues will be decided by the sport and its game officials, and not by judge and jury. American courts are busy enough as it is without taking on the role of super-referee or umpire.
Mr. Movaghar received his B.A. from UCLA and is a full time 3L student at Southwestern University School of Law in Los Angeles and is a member of the Biederman Institute’s Entertainment & the Arts Legal Clinic.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern.
