Bengals Ticket-Holders Win Again, This Time at Appellate Level

Feb 2, 2007

In a majority decision, an Ohio state appeals court has affirmed a decision of a trial court, granting relief to a group of Cincinnati Bengals club-seat ticket holders, who had alleged that the Bengals violated the Ohio Consumer Sales Practices Act when it modified the requirements around its seat license agreements and sought to enforce certain onerous provisions.
However, the appeals court did grant some relief to the Bengals by reversing the trial court’s decision to certify a broad class of Bengals season-ticket holders in the case. With regard to the latter, the panel of judges found that the plaintiffs had not met the requirements of R.C. 1345.09(B), which is a qualification standard for receiving class action status.
In a suit filed in 2003, the plaintiffs alleged that the Bengals changed the terms of a contract after the fans signed a Charter Ownership Agreement (COA) and sent in their deposit in violation of the aforementioned Act.
The COA gave the fans the right to buy season tickets. However, the club subsequently sent a Club Seat License Agreement (CSLA), which added some provisions that were not part of the original COA. These provisions required fans to be responsible for the value of the season tickets for the length of the COA and required arbitration for any disputes.
The plaintiffs filed common-law claims of negligent misrepresentation and fraud, along with statutory violations of the Act. The trial court ultimately held for the plaintiffs, writing that “under the terms of the contract, class members are under no obligation to purchase club seat tickets for 6, 8, or 10 years and may discontinue the purchase of club seat tickets at any time with the only penalty being the forfeiture of the club seat COA and the $150 per club seat COA purchased.” The trial court used the same holding to dismiss the Bengals’ counterclaims.
One of the issues on appeal was the trial court’s decision to certify the plaintiffs as a class to pursue those claims. The appeals court found fault with that decision, writing that the trial court “provided no analysis to address the complex issues concerning whether the Civ.R. 23 prerequisites for class certification had been met, and … articulated no rationale to support meaningful appellate review of its decision.”
The second and third issues on appeal involved the contractual obligations of the plaintiffs under the Club Seat Brochure. The Bengals argued that the trial court erred in dismissing their counterclaims.
“The trial court held that ‘under the terms of the contract, class members are under no obligation to purchase club seat tickets for 6, 8, or 10 years and may discontinue the purchase of club seat tickets at any time with the only penalty being the forfeiture of the club seat COA and the $150 per club seat COA purchased.’ The same holding was used to justify the dismissal of the Bengals’ counterclaims.
“The Bengals argue that the Club Seat Brochure unambiguously obligated the plaintiffs to purchase club seats for a definite lease term. They argue that, under the plain language of the order form, the plaintiffs were bound to purchase tickets for the number of years they selected. The plaintiffs argue, on the other hand, that the contract unambiguously gave them the right not to purchase tickets and to forfeit their seat licenses. We agree with the plaintiffs.
“The express written language of Rule 12 in the Club Seat Brochure states, ‘Once you have purchased your COAs and the new stadium opens, you must continue to purchase season tickets for your assigned seats on an annual basis to maintain your rights. Failure to purchase season tickets will forfeit your right to the COA.’ Furthermore, the plain language of the authorization states, ‘The undersigned has read the Rules and Regulations provided with this application, understands them, and agrees to be bound by them.’
“When the plaintiffs purchased their seat licenses, they purchased the right to purchase season tickets at a discounted rate for a specified number of years. Under the unambiguous terms of the contract, they obligated themselves to make annual payments for club-seat tickets only if they wanted to maintain ownership of their club-seat licenses. Otherwise, they would forfeit their club-seat licenses to the Bengals, who would then resell them to others.
“Because the contract contained clear and unambiguous language that the plaintiffs had the unilateral right to cancel their club-seat licenses by not purchasing club-seat tickets, the Bengals argument that the ‘Lease Term’ section obligated the plaintiffs to pay for six to ten years of club-seat tickets is without merit. We, therefore, overrule the Bengals’ second and third assignments of error.
“Based on the foregoing, we sustain the Bengals’ first assignment of error and overrule their second and third assignments of error. Accordingly, we affirm the trial court’s disposition of the declaratory-judgment claim in the plaintiffs’ favor, but reverse the trial court’s judgment as to the class certification.”
Dunkelman et al. v. The Cincinnati Bengals, Inc.; Ohio App.1st, Hamilton Co.; APPEAL NO. C-050814, 006 Ohio 6825; 2006 Ohio App. LEXIS 6737; 12/22/06
Attorneys of Record: (for plaintiff) Janet G. Abaray of Lopez, Hodes, Restaino, Milman & Skikos in Cincinnati. (for defendant) Eric Combs, and Katherine Ruwe of Taft, Stettinius & Hollister.


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