By Philip H. Movaghar & Jeff Birren, Senior Writer
Sports invariably create many emotions. For every fan jumping for joy another is crestfallen. One fan’s “miracle” is another fan’s tragedy. Thus when fans feel that their team is on the brink of triumph, it especially hurts when an umpire or referee’s call or non-call robs them of that anticipated victory. So it was in New Orleans on January 21, 2019 when game officials did not call pass interference against the Los Angeles Rams’ late in the NFL National Conference Championship game.
The score was tied 20-20 with 1:48 remaining in the fourth quarter. The Saints had a third and ten at the Rams 13 yard-line. Saints quarterback Drew Brees attempted a forward pass to Saints’ receiver Tommylee Lewis. The pass fell incomplete, but to the Saints and their fans, Rams cornerback Nickell Robey-Coleman committed pass interference on Lewis. Had the game officials made that call, the Saints would have had a first down near the Rams’ goal line and could have run the clock down before either scoring a touchdown or kicking a game winning field goal. No penalty flag was thrown, and the Saints were forced to kick a field goal with 1:41 to go, giving them a 23-20 lead. Unfortunately for the Saints and their fans, the Rams kicked a tying field goal with fifteen seconds left, and subsequently kicked a game-winning field goal in overtime, giving the Rams the NFC Championship and a Super Bowl berth.
Saints fans left the Superdome that day convinced that the non-call had robbed their team of a place in the Super Bowl. Controversy, however, remains part of sports and is one of the factors that cause those moments to live on in memories for decades. Fans may respond in anger or despair, they may write nasty letters, place calls to sports-talk radio, picket or express themselves in other colorful ways, but that is where the overwhelming number of fans leave it at that. But that does not account for attorneys chasing legal fees.
Two Fans Sue the NFL
On February 28, 2019 two fans filed a proposed class action case against the NFL alleging that they had been economically harmed by the failure of the game officials to call a penalty on the disputed play. Their counsel was not just content to sue the NFL, but also named three of the game officials, the NFL vice president of officiating Alberto Riverton and even NFL Commissioner Roger Goodell. The Complaint was filed in the United States District Court for the Eastern District of Louisiana (Daniel And Barbara Ryan, Individually and on behalf of Similarly situated persons v. National Football League, Inc., Roger Goodell, William Vinovich III, Patrick Turner, Gary Cavaletto and Alberto Riverton, Case No. 2:19-cv-01811-BWA-DMD, 2-19-19 (“Complaint “)).
The Complaint spends pages 8 through 11 discussing various NFL rules, includes color photos from the incident, and assumes somehow that the NFL owed a legal duty to the Saints’ fans concerning the enforcement of the playing rules. The Complaint further claims that after the game was over the NFL had some other, unspecified duty to the public “to appropriately and publicly acknowledge, investigate and take appropriate action” after the game (Compliant at 14). However, given that the game was over, one wonders what any post-game action would do to mollify those fans and counsel.
The Complaint includes five causes of action. The first is for “DETRIMENTAL RELIANCE/EQUITABLE ESTOPPEL” the second is for “NEGLIGENT AND/OR INTENTIONAL MISREPRESENTATION” the third is for “BREACH OF FIDUCIARY DUTY” the fourth is for “UNJUST ENRICHMENT and the fifth is for “CONSPIRACY AND SOLIDARY LIABILITY.”
The damages sought included repaying every single fan for the cost of tickets to the game, the cost to park at the game, the cost to travel to the game including transportation, fuel, hotels, and meals, the cost of food at the game as well as any merchandise purchased at the game, and for “for all damages, general, special and exemplary damages allowed by law, for which this Honorable Court finds reasonable, together with legal interest thereon from date of judicial demand until paid, for all costs of these proceedings and for other general, equitable and specific relief, to which Plaintiffs may be entitled” (Complaint at 44).
The Complaint, though passionate, does not connect the standard tort allegations to any real obligations that the NFL might owe to fans. It also fails to explain what the NFL could have done in the weeks following the game that might have fulfilled its duty. This lack of credible pleading played into the NFL’s hands.
The NFL Responds
The NFL and the individual defendants filed a Motion to Dismiss on April 2, 2019 (“MTD”). It was a mere nine pages and relied on the holdings of Mancina v. Goodell, No. 12-2512 2013 WL 393041 (E.D. La. Jan. 30, 2013) and Mayer v. Belichick 605 F.3d 223 (3d Cir. 2010). The NFL argued that courts consistently have held in connection with similar lawsuits brought by ticketholders to sporting events, that ticketholders to a sporting event hold only a license to attend the event as a spectator and that they do not have any legal cognizable right to assert the types of claims that the plaintiffs asserted in their Complaint.
In Mancina, a Saints season ticket holder filed a class action lawsuit against the NFL and its Commissioner alleging a variety of claims arising out of his dissatisfaction with the NFL’s administration of NFL rules with regard to the Saints’ punishment for their involvement in the so-called “Bountygate” dispute. The plaintiff pursued numerous legal theories, including statutory unfair trade practices violations, breach of contract, and tort, claiming that the NFL’s punishment was “unreasonable” and unfairly diminished the competitive quality of the Saints and the value of his tickets (MTD at 4).
The Mancina Court, however, recognized that regardless of the legal theory or cause of action asserted by the plaintiff, such rights are derived solely from his status a ticketholder, and ultimately held that while the denial of entry or a seat for the ticketed game may give rise to a damages claim, the plaintiff’s game ticket did not provide him any legally cognizable right to challenge in court the NFL’s administration of its rules regardless of how dissatisfied he was with that administration, or any alleged impact on the competitive quality of the Saints. Ultimately, “because the plaintiff was granted entry and seating for the ticketed games, he did not have a valid claim” (MTD at 5).
In Mayer, like Mancina, the plaintiff ticketholder asserted a variety of legal theories in support of his damages claims, including statutory unfair trade practice violations, breach of contract, and tort. The Third Circuit “affirmed the dismissal brought on behalf of Jets season ticketholders and other ticketholders who had claimed that the surreptitious video-taping of opposing team signals by the New England Patriots during games in violation of NFL rules and the NFL’s destruction of the those tapes subsequent to levying sanctions for that misconduct had breached ticketholders alleged ‘contractual expectations and rights’ of observing a fair game ‘in compliance with all laws, regulations and NFL rules’” (MTD at 6).
Like the Mancina court, the Mayer court held that regardless of the plaintiff’s asserted legal theory and a plaintiff’s claim that he was a victim of a team’s “ongoing acts of . . . cheating in violation of the express rules of the game,” the plaintiff failed to set forth any legally cognizable right, interest, or injury and therefore did not have standing to bring his claims. Rather, the plaintiff as a ticketholder “possessed nothing more than a contractual right to a seat from which to watch an NFL game between the Jets and the Patriots, and this right was clearly honored” (MTD at 6).
The NFL cited the Third Circuit’s holding that allowing such suits could lead to other disappointed fans filing a lawsuit over a “blown call” (MTD at 6). Specifically, it noted: “it is not the role of judges and juries to be second guessing the decision taken by a professional sports league purportedly enforcing its own rules [and] . . . at the very least, a ruling in favor of Mayer could lead to other disappointed fans filing lawsuits because of a ‘blown call’ that apparently caused their team to lose or any number of allegedly improper acts committed by terms, coaches, players, referees and umpires, and others” (MTD at 7).
Judge Susie Morgan’s Ruling
Judge Morgan issued her Order and Reasons on July 30, 2019 (“Order”). The court distinguished the instant case from Mancina and Mayer because the latter two only analyzed the plaintiff ticketholders’ cause of action for breach of contract under Rule 12(b)(6) and not the other claims before her. Here, plaintiffs did not sue for breach of contract but brought tort claims. The court found Mancina and Mayer, and even the NFL motion, unpersuasive but nevertheless analyzed the cause of action under Rule 12(b)(6) for failure to state a claim.
Count 1 — Detrimental Reliance: This detrimental reliance claim requires a four-step analysis. The elements are that (1) the defendant made a promise; (2) the promise was made in manner that the promisor should have expected the promisee to rely on it; (3) the plaintiffs’ reliance on its represented promise was reasonable; and (4) that reliance caused a change in its position to its detriment.
The court noted that while Louisiana Civil Code Article 1967 references a “promise,” other courts describe the first element of a detrimental reliance claim in terms of it requiring a “representation.” However, whether called a promise or representation, the requirement is essentially the same thing. Thus, a “promise” for purposes of detrimental reliance is defined as: “A declaration which binds the person who makes it, either in conscience or law, to do a specific thing, which then gives to the other person a right to expect . . . the performance of that thing.” The court also found an additional acceptable definition of a “promise” in the context of an offer which is “definite and certain and which the promisor intends to be binding [;] the mere expression of an intention is not a promise” (Id. at 8).
The plaintiffs did not allege that defendants Vinovich, Turner, Cavaletto, and Riveron made any promise or representation, thus the motion to dismiss the detrimental reliance claim was granted as to them. With respect to the NFL and Goodell, plaintiffs alleged NFL and Goodell promised, pursuant to Rule 17 section 2 article 3 of the NFL Operations Manual Handbook, that in the event of an extraordinary or unfair act whereby the result of a game would be inequitable to one of the teams, Goodell would “use his vested authority to act and, if appropriate, reschedule the game and/or reverse the games result. . . ” (Order at 8). The court did not find plaintiff’s reasoning persuasive, as Rule 17 is predicated on the commissioner’s sole authority to determine whether an event is extraordinarily unfair and what action to take, if any. Such a representation is “not sufficient to constitute an actionable promise because it does not manifest an intention to act or not to act in a specified manner” (Id. at 9).
As to the second detrimental reliance element, plaintiffs alleged that the promise on which they relied is based on rule 17. However, article two of the NFL bylaws expressly states: “the league is organized to promote and foster the primary business of the League members . . . [and] to do and perform such other functions as may be necessary to carry out the purpose and objects of the league” (Id.). So, since they did not allege the NFL adopted or published the Official Playing Rules for their benefit [nor] in a manner in which they did or should have expected plaintiffs to rely, plaintiffs [did] not allege facts to “support an inference that the promise on which they allegedly relied was made in a manner such that the NFL and Goodell did, or should have, expected Plaintiffs to rely on it” (Id. at 10).
Plaintiffs attempted to persuade the court, using statements issued by Saints Owner Gayle Benson and a letter written by Louisiana Governor John Edwards to Commissioner Goodell expressing their disappointment in the events of the game, that Plaintiff’s reliance on the promise rooted in Rule 17 was reasonable. The court found those statements did not support plaintiff’s allegation that their reliance on [Rule 17] was reasonable; in fact, it was patently unreasonable because, Rule 17 grants the Commissioner complete and sole discretion to investigate any events and determine what action is to be taken under Rule 17. To be reasonable . . . [a] plaintiff’s reliance cannot simply be based on an assumption. Thus, “any reliance by Plaintiffs on the assumption that, given the circumstances that occurred in New Orleans on January 20, 2019, the Commissioner would choose to exercise his complete and sole discretion to require the teams to replay all or a portion of the game is not reasonable” (Id. at 11).
The court did not analyze the fourth element of detrimental reliance, but acknowledged that it is difficult to recover under such a theory because estoppel is not favored in Louisiana. Ultimately, even accepting all factual allegations as true, the court held that plaintiffs failed to state a claim for detrimental reliance that was plausible on its face. Accordingly, the court granted the motion to dismiss the detrimental reliance claim as to the NFL and Goodell, finding that “an injustice did occur in the NFC Championship game, but not as a result of any promises or representations made by the NFL or Goodell to Plaintiffs” (Id.).
Count Two —Negligent and/or Intentional Misrepresentation: The court found that plaintiffs failed to allege facts supporting negligent or intentional misrepresentation by defendants Vinovich, Turner, and Cavaletto; rather, they merely alleged that the [referee] defendants were “negligent in their duties resulting in the NFL, Goodell, and Riveron’s negligent misrepresentation and/or intentional misrepresentation to Plaintiffs” (Id. at 12). Consequently, the motion to dismiss was granted for Count two as to those defendants.
The Court then turned to defendants NFL, Goodell, and Riveron. The elements for the intentional misrepresentation in Louisiana are: (1) a misrepresentation of a material fact; (2) made with intent to deceive; and (3) causing justifiable reliance with resultant injury. Because plaintiffs did not allege that defendants had intent to deceive plaintiffs, the motion to dismiss their intentional misrepresentation claim was granted.
Louisiana courts recently integrated negligent misrepresentation claims into Louisiana’s civilian duty-risk analysis for torts, though such an analysis is “employed on a case by case basis” (Id. at 12). A negligent misrepresentation claim “must allege the following four elements: (1) the defendant, in the course of its business or other matters in which it had a pecuniary interest, supplied false information; (2) the defendant had a legal duty to supply correct information to the plaintiff; (3) the defendant breached its duty, which can be breached by omission as well as by affirmative misrepresentation; and (4) the plaintiff suffered damages or pecuniary loss as a result of its justifiable reliance upon the omission or affirmative misrepresentation” (Id. at 13).
For such plaintiffs to succeed it must first be established that the defendants owed a legal duty to provide correct information to plaintiffs. However, because they did not allege breach of contract, the court determined that no fiduciary duty existed between the parties. When there is no contractual or fiduciary relationship between the parties, the Louisiana Supreme Court has found the duty of care owed is compatible with the duty stated in the Restatement (Second) of Torts §522 (“R2″), which limits potential liability of the negligent supplier of information to cases involving commercial transactions and to cases in which the supplier of the information “manifests an intent to supply the information for the sort of use in which the plaintiff’s loss occurs” (Id. at 14).
Plaintiffs alleged defendants owed them a duty because defendants solicited plaintiffs as fans and to purchase tickets and other incidental items. Even if true, the court found these allegations conclusory and ultimately insufficient to support the assertion that they owed plaintiffs a duty to supply accurate information as their “allegations do not raise their right to relief above the speculative level” (Id. at 15), or within the limits set forth in R2 §522. Thus, because plaintiffs failed to plead that defendants owed a duty to supply correct information to plaintiffs, they consequently cannot plead any breach thereof.
Lastly, plaintiffs must allege “a causal link between the defendants’ purported omission or affirmative representation and plaintiffs’ financial ruin” (Id. at 16). Plaintiffs pointed to the cost of the ticket to attend the game and other incidental items. As to the misrepresentations, plaintiffs alleged that defendants promised inter alia: “illegal helmet to helmet contact would not be permitted and fouls would be called to enforce [such a violation]; the integrity of the game is something [they would] always protect; the rules and officiating would be consistent and fair to all competitors; and that it is Goodell’s job, in particular, to make certain everyone from players to coaches to fans . . . recognizes and acknowledges that NFL games are going to be played by these set of rules — which is part of the NFL’s values and standards” (Id.).
However, the court found that plaintiffs failed to plead a connection between their damages and Defendant’s alleged misrepresentations. Specifically, the court noted, “the Plaintiffs did not make any factual allegations that they would not have paid for their tickets and incidental costs but for the alleged misrepresentations” (Id.). Instead, they merely alleged that “Plaintiffs purchased tickets and other incidental items as a result of the promises outlined above.” Such conclusory statements fail to meet the pleading standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and, as a result, the court granted the motion to dismiss the negligent misrepresentation claims.
Count Three: Breach of Fiduciary Duty: Plaintiffs asserted defendants NFL and Goodell owed a fiduciary duty to the fans of the NFL because Goodell is the “gatekeeper” for the integrity of the game. Likewise, they alleged defendants Vinovich, Turner, Cavaletto, and Riveron were “obligated to perform their jobs so as to ensure that the fiduciary duty owed to the plaintiffs is not breached” (Id. at 17). However, under Louisiana law, the defining characteristic under a fiduciary relationship is “the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor” (Id.).
The court found that plaintiffs failed to allege any special relationship or trust exists between them and the Defendants. Rather, they merely alleged in a conclusory fashion alleged that such a fiduciary duty exists. Such a threadbare assertion fails to meet the Twombly pleading standard, so the Court granted the defendants’ motion to dismiss the claim for breach of fiduciary duty.
Counts Four and Five: Unjust Enrichment and Conspiracy Liability: Plaintiffs pleaded claims that were effectively futile upon their filing. In Count four, they alleged Defendants were unjustly enriched by the sale of, inter alia, 73,000 tickets with respect to the January 20, 2019 NFC Championship Game. Yet under Louisiana Civil Code 2298, the remedy for unjust enrichment is subsidiary in nature and “shall not be available if the law provides another remedy” (Id. at 18). Thus, because plaintiffs pleaded causes of action for detrimental reliance, negligent or intentional misrepresentation and breach of fiduciary duties, they were precluded from bringing an action for unjust enrichment as the other causes of action provided alternative remedies at law. Accordingly, the court granted defendants’ motion to dismiss the claim for unjust enrichment.
In Count five, plaintiffs alleged defendants conspired to commit the actionable causes of action included herein. Under Louisiana law, “one who conspires with another person to commit an intention of willful act is answerable, in solido, with that person, for the damage caused by such an act” (Id. at 18/19). The actionable characteristic of this claim, however, lies in the underlying intentional tort committed pursuant to an agreement between the wrongdoers. However, because the intentional misrepresentation claim in the instant case was dismissed, the court likewise granted the motion to dismiss plaintiffs’ conspiracy claim. Moreover, all of the claims were dismissed with prejudice.
Conclusion
One can hope that filing the claim provided catharsis for the plaintiffs as that is far more relief than the law will ever give them in such a case. Disputed calls or even outrageously incorrect calls will always be a part of sports and some games even become known for the bad call, such as the “Tuck Rule” game. But despite the apparent injustice of a game call, the courts have not and will not provide relief to disappointed fans, and lawyers who file such claims should consider themselves lucky if they are not sanctioned for doing so.
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.
