A federal judge from the Northern District of Illinois has ruled that a Chicago Bears season ticket holder (STH), who also happens to be a Green Bay Packers fan, has a First Amendment right, under the free speech clause, to join other invited Bears ticket holders on the field for a special perk, while wearing Packers apparel.
On Dec. 18, 2016, the Bears’ staff allegedly denied Beckman entry into a Bears’ pre-game experience at Soldier Field in Chicago because he was wearing Packers (the Bears’ opponent that day) clothing. Beckman, representing himself, sued the Bears and the National Football League, seeking injunctive relief.
In its recitation of the facts, the court noted that the Chicago Park District (CPD) “started a nearly $1 billion renovation of Soldier Field to accommodate the Chicago Bears” and that Beckman “was offered an opportunity to purchase personal seat licenses in the new Bears home stadium.” Subsequently, Beckman purchased two club seat personal seat licenses.
Beckman sued, claiming the Bears and the NFL violated his First Amendment right to free speech when he was denied access to the Bears’ Pre-Game Warm-up Field Credential Experience (PWFCE) because he was “dressed in opposing team gear.” The PWFCE is part of a “program to reward season ticket holders,” which was formally created by the Bears prior to the 2016 football season.
The PWFCE provides STHs and their guests the opportunity to walk and stand on the northeast corner and end zone of the Bears’ playing field in Soldier Field during pre-game warmups. The PWFCE credential, but not the “field pass,” provides that “no visiting team clothing is allowed,” as does the PWFCE registration confirmation email. Additionally, the Bears assert that the STH Experiences are “subject to additional terms that may be set by the organization,” including the “right, without refund or any amount paid, to refuse admission to, or eject any person . . . who fails to comply with venue or event promoter rules” as indicated on the “terms of purchase governing the STH Experiences redemptions.”
In the summer of 2016, Beckman learned that he would be able to participate in the experience. He chose the Packers-Bears game. Shortly before the game, Beckman received an email from the Bears advising him that “NO OPPOSING TEAM GEAR WILL BE ALLOWED,” during the PWFCE on Dec. 18, 2016. Beckman “informed the Bears that [he] would show up to the experience registration,” wearing Packer clothing. He was “denied participation in the experience.”
Beckman went to the trouble of writing NFL Commissioner Roger Goodell, seeking Goodell’s assistance in getting the Bears to stop enforcing their rule against visiting team apparel. Goodell did not respond.
Beckman characterizes the PWFCE during the game between the Bears and Packers as a “repeatable annual event” since they play in the same division. He further maintained that he purchased his season tickets in large part because he wanted to have the chance to enjoy the PWFCE with his friends and family, including future grandchildren.
The court also noted that Soldier Field is “a publicly financed facility owned by the CPD.” Further, the Bears lease Soldier Field from the CPD under an operating agreement, which stipulates, among other conditions, that the club must pay an annual “Facility Fee,” to use the field. The CPD is also responsible for “performance and payment of security and crowd control on Game Days.”
After Beckman sued, the defendants moved to dismiss.
The NFL moved successfully to dismiss on the basis of standing. “Neither Beckman’s complaint nor the statements (in) his response to the pending motion, establish that his injury is fairly traceable to the NFL. The NFL must accordingly be dismissed for lack of subject matter jurisdiction.”
Bears Reliance on Public Money for Stadium Renovation Keeps Plaintiff’s First Amendment Claim Alive
The court was less receptive to the Bears’ argument that the First Amendment claim alleged in Beckman’s complaint fails to state a claim for two reasons. The Bears argued specifically that the two reasons were:
“First … Beckman is challenging their purely private conduct; the complaint, operating agreement, and other exhibits do not cross the threshold from private to state action. Alternatively, the defendants maintain that the playing field is a nonpublic forum, and so the policy prohibiting opposing team apparel during the PWFCE is a reasonable, viewpoint neutral speech restriction.”
“The court finds neither argument persuasive at this procedural stage. An examination of the complaint and operating agreement reveals language that can be reasonably read as giving CPD the right to approve all PSL programs like the one at issue here. And the policy does not appear to be viewpoint neutral because it allows season ticket holders to wear Bears gear.”
Beckman succinctly summarizes his state action position in his response to the defendants’ motion to dismiss. The court was agreeable.
“Taken together, the complaint and the operating agreement rise to the level of a plausible claim that the CPD and the Bears’ operations are enmeshed enough to find a state action in the Bears’ administration of PSL programs,” wrote the court.
Russell Beckman v. Chicago Bear Football Club, INC., and National Football League; N.D. Ill.; Case No. 17 C 4551, 2018 U.S. Dist. LEXIS 55140; 3/30/18
Attorneys of Record: (for plaintiff) Pro se, Green Bay, WI. (for defendant) John N. Scholnick, LEAD ATTORNEY, DLA Piper LLP (US), Chicago, IL; LEAD ATTORNEY, Michael K Molzberger, Schiff Hardin, Chicago, IL.
