A federal judge from the District of New Jersey has closed the book on a lawsuit brought by a New York Giants season ticket holder, who claimed that the requirement that he buy a personal seat license (PSL) for the new Giants Stadium with his season ticket was breach of contract.
While the court had already given the Giants, and their co-defendant the New York Jets, a partial victory 15 months earlier (reported in Sports Litigation Alert here: http://www.hackneypublications.com/sla/archive/000989.php), the instant decision centered on the last remaining issue – whether the imposition of a PSL violated an implied contract. The court found that there was no such violation. “There is no conduct of the Jets and Giants that could be interpreted as conveying renewal rights to season ticket holders,” it wrote.
The impetus for the lawsuit was the decision of the New York Giants and the New York Jets to require season ticket holders to purchase personal seat licenses as a way to defray the cost of building a new stadium.
In the earlier opinion, the court noted that demand for such tickets far outstripped supply.
Prior to the filing of the lawsuit, “the plaintiff and all those similarly situated received notice from the Giants that season ticket renewal procedures were being changed for the 2010 season.” They would “now be required to first purchase a PSL for each season ticket at a cost of $1,000 to $20,000” if they wanted to maintain their season tickets. Jets season ticket holders faced a similar ultimatum.
In response to this requirement, season ticket holder Harold Oshinsky (now deceased) filed a six count complaint seeking relief for violations of state consumer laws, breach of contract, unjust enrichment and violations of antitrust laws.
Both the Giants and the Jets moved to dismiss the claim. The court delivered a partial victory, but left intact the plaintiff’s claim that the imposition of a PSL violated an implied contract to renew a season ticket purchase. The court found that more discovery needed to take place before it could render a decision on that claim.
After considering the evidence against the Giants, the court found that “no implied contract exists.
“Since 1959, on the back side of each annual invoice is a clause, which expressly curtailed renewal rights. It reads ‘renewal privilege is extended at the option of the Giants, and is subject to revocation at any time.’ The intent of the Giants is crystal clear from this language.
“Mr. Fisher (a season-ticket holder and one of the plaintiffs’ witnesses) alleges that the Giants abrogated that provision by their conduct; but his proofs of conduct are vague. First, he indicated that ongoing renewal rights were intended by the parties due to ‘blurbs’ in Giants newsletters, but the content of the supposed ‘blurbs’ were not produced. Second, he indicates that long time season ticket holders were recognized and congratulated during intermissions at games, thereby acknowledging that ongoing renewal rights were agreed upon. But, none of the statements made at such presentations were produced, hence it is amorphous whether Mr. Fisher’s statement is true. Third, Mr. Fisher alleges that the Giants always allowed transfer of season tickets to family members, which he argues proves the intent of the parties to agreed upon ongoing renewal rights. Although the Giants agreed that it allowed family related transfers, it was through a detailed process, which required a written application and Giants acceptance. No reasonable person would conclude that the Giants intended to irrevocably offer renewal rights based on Mr. Fisher’s proofs.”
The court wrote that the Jets case “is different” from that of the Giants. “Whereas the Giants gave written notice of revocability of season tickets from 1959 forward, the Jets first annunciation occurred in 2005. The Jets contend it was always their ‘long standing policy’ that the team could revoke season tickets whenever it desired. Dr. Audry Weissman (the plaintiffs’ other primary witness) disagrees. She argues that the Jets Change Form advised that the Jets had established policies permitting ‘transfers to third parties,’ especially to lineal family members. However, the Change Form does not comport with her characterization. Immediately before the signature line on the Change Form, there is a substantive clause that notes that Jets season ‘tickets are revocable licenses . . . [and] the Jets reserve the right to refuse to approve any proposed transfer.’
“The Change Form clause states:
‘New York Jets game tickets are revocable licenses. The New York Jets generally offer season ticket holders who have complied with all of the terms and conditions of their season tickets, including all payment terms and all codes of conduct applicable to stadium conduct, the opportunity to renew their season tickets. The New York Jets reserve the right to refuse to approve any proposed transfer of a season ticket account in its sole discretion. No transfer may be made for any payment or other consideration. Any transfer made without the approval of the New York Jets or in violation of the preceding sentence shall be void and may result in the revocation of the season ticket account.’
“There is nothing in Dr. Weissman’s affidavit from which a reasonable person would conclude that the Giants and/or Jets transferred renewal rights to season ticket holders. A reasonable person would not conclude there was an agreement.”
The court did single out one of the issues raised by Fisher, which some courts “have analyzed as a breach of the covenant of good faith. He argues that he endured 20 years, during the 1960s and 1970s, of “horrible football teams year after year,’ and a recurring nightmare of the fumble game. His argument is — why would anyone buy season tickets during those years unless the season ticket holder believed his season tickets were renewable in hope of a good season to follow?
“This argument has been addressed in a similar setting. In another football case, a court ruled the argument ‘was out of bounds.’ Charpentier v. Los Angeles Rams, 75 Cal. App. 4th 301, 314, 89 Cal. Rptr. 2d 115 (Cal. Ct. App. 1999). Good faith ‘prevents a contracting party from engaging in conduct that frustrates the other party’s rights.’ Id. As the California court noted, the ‘plaintiff did not buy the right to watch a good team’; ‘nor was the team required to repay local fans’ loyalty by declining other opportunities.’ Id. Similarly, the Seventh Circuit noted, even if ‘the Chicago Cubs turn out to be the doormat of the National League, that would not entitle the ticket holder to a refund for the remaining games, any more than the star tenor’s laryngitis entitles the opera goer to a refund when the understudy takes over the role.’ Seko Air Freight, Inc. v. Transworld Sys., Inc., 22 F.3d 773, 774 (7th Cir. 1994). The same holds here, there was no covenant to field play-off bound teams each year and there is no reason for the teams to decline opportunities. In short, Mr. Fisher’s contention is appealing, but not persuasive.”
The Estate of Harold Oshinsky, Individually, and on behalf of a class of similarly situated persons v. New York Football Giants, INC., et. al.; D.N.J.; Civil Action No.: 09-cv-01186 (PGS), 2011 U.S. Dist. LEXIS 11331; 2/2/11
Attorneys of Record: (for plaintiffs) Andrew D. Friedman, Glancy Binkow & Goldberg LLP, New York, NY, James V. Bashian, Law Office of James V. Bashian, PC, Hoboken, NJ. (for defendants) Maritza Braswell, Richard Hernandez, Richard Patrick O’Leary, William J. O’Shaughnessy, McCarter & English, LLP, Newark, NJ, Anthony Thomas Wladyka, Elizabeth Anne Figueira, Proskauer Rose LLP, New York, NY.
