By Jeff Birren, Senior Writer
A couple from Ohio attended a minor league baseball game. One was seriously injured. They sued the owner of the team, but due to the tiny print on the back of the ticket, coupled with over eight pages of legalese on the team’s website, the U.S. District Court sent their case to arbitration (Deborah Kay Roberts and Lowell Wayne Roberts v. Boyd Sports, LLC, 2024 U.S. Dist. LEXIS 11805, 2024 WL 25193 (2024)).
Carry Me Out of the Ball Game
Deborah and Wayne Roberts live in Ohio. They decided to attend a Tennessee Smokies game on April 20, 2022. The team is a Double A affiliate of the Cubs. Smokies Stadium is in Kodak, a suburb of Nashville. It opened in 2000 and is owed by the County of Sevierville and the City of Sevierville. In 2022, the Smokies were playing one last season there. The lease is set to expire on March 15, 2025, and a new stadium is currently under construction in Knoxville. Even if the more expensive digs are not ready for the 2025 opener, there will be no return to Kodak.
Deborah Roberts ordered tickets by telephone and received the tickets at “Will Call” on game night. They sat in the front row near the third base dugout. “During the game Ms. Roberts was struck on the head by a foul ball, resulting in several facial injuries that required a three-day hospital stay before returning to Ohio for further treatment.” She has paid more than $100,000 in medical expenses. The day after the injury, Mr. Roberts met with team representatives to discuss the injury. They kept one game ticket stub.
Litigation
On April 23, 2023, the Roberts sued the Smokies’ owner, Boyd Sports, LLC. They filed an Amended Complaint in May that attached both the stadium use agreement and the stadium management agreement. The next short phase of the litigation involved getting the proper certificate of citizenship filed as the case was in Tennessee federal court based on diversity jurisdiction. Once that was done, Boyd Sports filed a motion to dismiss for “failure to state a claim” due to the asserted arbitration agreement.
The front of the ticket has details about the game, and the seat numbers. The “arbitration agreement” is located on the back of the ticket in “size 4 font.” The following is the Court’s description: “THIS TICKET IS A REVOCABLE LICENSE…. Just below that read: ‘By using this ticket holder … agrees to the terms and conditions, including an AGREEMENT TO ARBITATION/CLASS ACTION WAIVER, at https://www/mib.com/tennessee/tickets/ticketback … and the Agreement summary state below…’ Starting at five lines from the bottom of the ticket is the following capitalized passage: ‘ANY CLAIM RELATED TO THIS TICKET SHALLE BE SETTLED BY MANDATORY, CONFIDENTIAL, FINAL, BINDING ARBITRATION.’ The full terms and conditions available at the website provided on the back of the ticket contain the following opt-out provision: ‘YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT, BUT YOU MUST EXERCISE THIS RIGHT PROMPTLY … within seven (7) days after the date of the Event.’”
Law
The Federal Arbitration Act allows contracting parties to resolve disputes via arbitration, 9 U.S.C. § 2. The Court noted the “Supreme Court recently emphasized” the goal “is to ensure that private arbitration agreements are enforced according to their terms, just as with any other contract” (Morgan v. Sundance, 596 U. S. 411 (2022)). “The Court ‘views all facts and inferences drawn therefrom in the light most favorable’ to the party opposing arbitration.” If the alleged contract does not delegate the scope of enforceability to the arbitrator, the Court does so. It analyzes four factors. First, is there is an agreement to arbitrate? If so, it determines “the scope of the arbitration agreement. If federal claims are asserted, did Congress intend “those claims to be nonarbitrable”? Finally, if some, but not all of the claims are subject to arbitration, should the Court “dismiss or stay the remaining proceedings”?
Analysis
In this case, no federal claims were asserted. Furthermore, Plaintiffs agreed that if the arbitration agreement was valid, it “covers any related claim.” Finally, there were no claims outside of the purported arbitration agreement, so there was nothing to dismiss or stay if claims were sent to arbitration. It came down to “whether the parties agreed to arbitrate.” That answer depended on how this Court interpreted Tennessee law.
Agreement To Arbitrate
An arbitration agreement is a contract. In Tennessee a contract requires “a meeting of the minds in mutual assent to the terms”; “must be based upon a sufficient consideration”; “free from fraud or undue influence”; “not against public policy”; and “sufficiently definite to be enforced.” The party opposing arbitration “bears the burden of showing a genuine issue of material fact as to the validity” of the arbitration agreement. Plaintiffs thus had to disprove mutual assent. There was “some confusion” whether they argued that the “agreement” was against public policy due to unconscionability. The Court did not agree, “thus it matters not which position Plaintiffs wish to stand upon.”
Mutual Assent
This is theoretically based on “an objective standard based upon the parties’ ‘manifestations.’” Boyd Sports asserted that the Plaintiffs assented when they entered the game. This is “comparable to analysis of internet ‘browsewrap agreements.’” It does not require an acknowledgement of the specific terms of the purported agreement, but merely that there was “actual or constructive notice of the website’s terms and conditions.” Consequently, the tickets did not have to state the terms and conditions of the supposed agreement. Rather, the ticket stub directed the Roberts to the team’s website. This was “reasonable notice” of the agreement to arbitrate, and the Roberts seemingly agreed to those terms by passing through the turnstiles.
The Court determined that the language on the ticket back referring fans to the team’s website was sufficient “notice of the terms of entering the stadium” and they “retained one ticket at all times relevant through the commencement of this suit.”
Plaintiffs cited cases based on “federal substantive maritime law,” “overstating the applicability and importance of their precedential value.” The ticket back, combined with the team’s website, “contains” the “the full agreement” rather than anything given to fans. Therefore, a “reasonable onlooker would conclude that the parties mutually intended to assent to the terms on the tickets” when Plaintiffs Roberts entered the stadium. The Court added that the Roberts never inquired nor expressed confusion or lack of understanding, resulting in “a valid arbitration agreement.”
Unconscionability
This Court was also not going to find the “agreement” unconscionable. Plaintiffs had received the tickets at Will Call. Such agreements “need not be signed to be enforceable.” Moreover, “consumers generally do understand that tickets come with terms and conditions, manifesting in this case as an arbitration agreement.” If Plaintiffs contended that there was no realistic opportunity to read or understand the agreement and that the terms were hidden, well, replied the Court, the “AGREEMENT TO ARBITRATE” was near the top of the ticket back.
The next argument was that the opt out period was too short and an opt out telephone number was not provided. The Court thought this was irrelevant because Tennessee law focuses on “mutuality.” As the ticket back bound both parties, “a lack of mutuality cannot be shown.” The Plaintiffs “note that no Tennessee court has analyzed the unconscionability of an arbitration agreement on a ticket back.” Such a short opt period was held to be unconscionable in Zuniga v. Major League Baseball, 2021 IL App (1st) 457 Ill. Dec. 888), 196 N.E. 3d 12 (Ill. App. Ct. 2021). Nevertheless, “the Court declines to follow the Illinois Court of Appeals,” leaving no “controlling precedent.”
Ms. Roberts was hospitalized for three days and subsequently had “potential difficulty reading fine print.” However, Mr. Roberts did not make this assertion, though perhaps he had more pressing concerns than reading a ticket back. The Court attributed the fault to the Plaintiffs for the “lack of basic investigation.” The Court also found that the lack of an opt out telephone number was similarly irrelevant because Plaintiffs claimed to be unaware of the existence of the arbitration clause. It “would have been trivial given Plaintiff Lowell Roberts’ follow up stadium visit.” (Nothing in the opinion suggests that the Smokies directed him to the language of the ticket back nor to the team website that day.) The Court also took at face value the defense affidavit that said it would have honored such a request. With that, the dispute was sent to binding arbitration and the case was dismissed with prejudice.
Editorial
This opinion might confuse students in a first-year Contracts Class. They might not understand how a valid contract could be formed if the actual agreement was not presented and may not even be available under the circumstances. In fact, these terms and conditions can even be unilaterally changed by the Smokies at any time prior to the game, but not by the purchaser. So much for “mutuality.” Furthermore, not everyone can read size 4 font. Standard Word only goes down to size 5, and that is too small for many people to read. For context, Sports Litigation Alert is published in size 12 font. The Court also did not bother to state the size of the ticket back. It said there were thirty lines of terms and conditions, but not how many words were in each line. Those lines ultimately allowed the Smokies to escape a jury.
For teams, schools, and stadium operators, it is time to re-read the ticket backs and webpages. This text was eight and a half pages. If it included all of the stadium rules, no fan would have the opportunity to buy a ticket and see the game if they read the ticket prior to entering the facility. The ticket back language is not presented until the tickets are paid for. Few fans bring a magnifying glass to a baseball game, nor are they guaranteed internet access outside stadium gates. Fans who read all of the various webpages at their seats would be unable to go back to the ticket office to get a refund, nor reenter the game.
There may be a valid assumption of the risk defense, but that will be decided by an arbitrator in Tennessee, paid for by the Smokies, and likely looking for future work. If the Roberts ever attend another baseball game, they should come prepared with a catcher’s helmet and gloves, chest protectors, a microscope, and misplace their ticket stubs.
