By Jeff Birren, Senior Writer
Russell Beckman may be a class of one. He is a season ticket and personal seat license (“PSL”) holder for the Chicago Bears but he became one not because he is a Bears’ fan but in order to insure that once a year he can see his beloved Green Bay Packers play at Soldiers Field with face-value tickets. Beckman apparently sells or gives away the tickets to the other nine games each year.
Beckman’s status as a PSL holder made him eligible for an invitation to spend time on the field prior to a game. The NFL permits clubs to allow a limited number of fans onto the field in certain proscribed areas during pregame. For Beckman that meant attending the pregame and game in Packers gear. That worked in 2014 and 2015, but not in 2016 when the Bears implemented a rule that prohibited participating guests from wearing anything with the names, logos or insignias of other teams. For virtually all season ticket holders that rule is irrelevant but for Beckman it was a blow. He wanted to wear his Packers garb during the pregame festivities as well as . He tried to resolve this conflict prior to the 2016 game, but the Bears declined to allow him to wear his Packers’ gear on the field. Beckman showed up in his usual game-day attire and was refused on-field entry. After the season Beckman wrote a plea to NFL Commissioner Roger Goodell who never responded. The same rule is in effect for 2017. Consequently, Beckman sued the Bears and NFL claiming the rule violates his First Amendment rights.
The Complaint
Beckman filed his Complaint (“Comp.”) on June 16, 2017 in the United States District Court in Chicago as a pro se litigant. It is 10 pages of text and 33 pages of attachments. Beckman does not seek compensatory or punitive damages but rather an injunction that “the Bears and the NFL be ordered not to prevent him from wearing his Packers clothing on the pre-game sidelines in 2017 and beyond “and his “court filing fees and service fees”(Comp at 9).
He decided to “represent myself to pursue this matter because I have no desire to incur large costs that could be possibly assessed to the defendants. I believe this matter is simple enough that I can pursue it on my own and I am doing so in good faith, only after exhausting all reasonable attempts to resolve this matter with the two defendants prior to filing this action”(Id.).
Beckman explained the Bears’ sideline pregame experience and how in 2014 and 2015 he was allowed to be on the field wearing his Packers attire (Id. at 4). Beckman originally owned PSL’s for two of his five seats. Prior to the 2016 season he “purchased PSL’s for my three end zone seats. The ability to participate in this experience only, added to the tremendous enjoyment I experience, with my family and friends, at this annual game (Id. at 4/5).” He used his “points” in the Bears system “to purchase three spots for the ‘pregame warm-up field experience’ at the Dec. 18, 2016 game between the Bears and the Packers (Id. at 5).” Photos of Beckman in his game-day outfit are easily found on the Internet.
Then the trouble began. “On December 12, 2106, I received an email from the Bears that provided specific information regarding participation in this December 18, 2016 experience. Among other stated rules and conditions, this email indicated ‘NO OPPOSING GEAR WILL BE ALLOWED’ (Id.), (all caps in the original).” Beckman notified the Bears that he intended to wear his Packer gear to . He did so and “was denied participation in the experience (Id. at 5/6).”
Most of pages six and seven relate his attempts to get the rule modified, including writing to Goodell, all to no avail. That, in his opinion, constitutes the “irreparable injury.” “Due to the prohibition that forbids wearing visiting team apparel while participating in this specific experience, the Bears have, without any compelling or reasonable cause, or Constitutionally mandated reason, deprived me of my ability to fully enjoy this specific on-filed experience and the general experience of the Bears-Packers game at Soldier Field. Because it is impossible to place a monetary value on this loss, I am not seeking compensation, other than court costs, from the defendants. I am only seeking that the Bears and the NFL be ordered by the court to not enforce this rule for the 2017 season and beyond. If the defendants are allowed to continue to enforce this rule, my harm continues indefinitely (Id. at 8/9).”
The exhibits include his communications with the Bears and NFL; copies of materials received from the Bears describing the 2016 on-field experience; information from the Bears concerning his participation prior to the Dec. 18, 2016 Packers game; his attempts to get the rule modified before ; a photo of Beckman in his Packers outfit at ; documents received from the Bears concerning the 2017 on-field experience, including: “[N]o visiting team clothing allowed (Id. at 43).”
The Defendants Respond
The NFL and Bears filed a joint Motion To Dismiss and Strike (“MTD”) on Aug. 16, 2017. The 16-page motion makes five major arguments. The first was made on only on behalf of the NFL. It claims that Beckman lacks standing to sue the NFL because there “is not a single allegation that connects the NFL to that incident, let alone any hint that any action or inaction by the NFL, in any way caused this ‘injury’ (MTD at 4).”
No cases are cited in this section, only FRCP 12(b)(1).
They next argue that Beckman failed to allege any duty owed to him by the NFL and any conduct that violated that duty. “Plaintiff does not allege any relationship between himself and the NFL (Id.).” It further states that Beckman’s claim against the Bears does not allege a claim sounding in contract or quasi-contract, and he does not claim that the Bears owned him any duty aside from the duty to not infringe on his constitutional rights (Id.).” Moreover, Beckman failed “to allege facts that tend to establish a basis for a duty that the NFL could conceivably owe him” nor is there “a single allegation of any conduct on the part of the NFL that would tend to breach a duty (Id. at 5).”
Both of these arguments may be legally correct but they gloss over the very pronounced role the NFL has in presenting NFL games, such as controlling who and how many people are allowed on the sidelines prior to and during games, where those people can be, and when they must depart. However, the NFL is not likely to be the source of a rule banning fans from pre-game sidelines because they are wearing the visiting team’s logo.
They then argue that Beckman cannot state a First Amendment claim because the Bears and the NFL are not state actors. That takes four pages. Only one of the cited cases involved the NFL, Terry Long v. NFL, 870 F. Supp. 101 (W.D. Pa. 1994). Long, a member of the Pittsburgh Steelers, failed a drug test and sued. The District Court determined that at least in this instance the NFL and the club were not state actors. The Third Circuit wrote only: “Affirmed” (66 F. 3d 311 (3d Cir. 1995)).
They also cite Stark v, Seattle Seahawks, (W.D. Wash. 2007), (2007 WL 1821017). Naturally they do not cite Sheehan v. San Francisco 49ers, LTD., 45 Cal. 4th 992 (2009) in which the California Supreme Court reversed such a dismissal albeit under a state constitutional law claim based on the same behavior as in Stark.
It also cites cases that declared that the NCAA and the U.S. Olympic Committee are not state actors. Left out was Ludtke v. Kuhn, 461 F. Supp. 86 (D.N.Y. 1978). In Ludtke, MLB ordered clubs to bar women reporters from the teams’ locker rooms. Ludtke sued New York, MLB and the Yankees and won an injunction ending that policy as it violated her constitutional rights.
The fourth argument is more fact driven. It claims that even if the First Amendment applies, the rule is reasonable. This is because the playing field is not a public forum and that in a non-public forum, “restrictions on speech” “must be reasonable in light of the forum’s purpose and must not discriminate on the basis of viewpoint” citing Choose Life Illinois, Inc. v. White, 547 F.3d 3d 853 (7th Cir. 2008). They also cite several cases that have held government-owned sports venues to be non-public forums. There is no question that pregame access to the field is not open to the general public, but only by invitation from the Bears, consistent with NFL rules.
Then comes the critical step: the restrictions are reasonable. That must be based on the facts and two of the cited cases were based on summary judgment motions, not motions to dismiss. Another cited case deals with security for the President of the United States. They also cite a case for the proposition that “persons must necessarily have the right to exclude others during a permitted use of public property and that such a right to exclude includes enforcement of a reasonable dress code (MTD at 12).” One wonders what the State of Wisconsin thinks of the argument that Packers’ gear is unreasonable. Most of the cited cases are political or religious speech issues that seem to have little to do with whether it is unreasonable for the Bears to bar a season ticket holder from wearing Packers clothing on field in a limited area prior to kickoff.
The final arguments relate to the class allegations. The first of these is that Beckman’s class claims should be dismissed or stricken. They argue that a pro se plaintiff may not represent a class citing, among other things, 28 U.S.C. § 1654 and Wright & Miller 7A Fed. Prac. & Proc. Civ. § 1769.1 (3d ed.). They next argue that the facts pled are insufficient to maintain a class action. Beckman alleged that “there are likely other similarly situated Bear season ticket holders and their companions, who, like me, already have and will continue to be denied access to this experience simply because they are dressed in opposing team gear (MTD at 15).” “This single allegation fails to adequately define the class, let along satisfy the pleading hurdles of Rule 23(a). The complaint’s allegations are insufficient to show numerosity, commonality, typicality or adequacy, and the class allegations should therefore be stricken(Id.).”
After Beckman sued, he gave a number of media interviews. He told one interviewer: “I mean this is not some noble crusade I am on. This is all about me” (Dan McQuade, Deadspin, “Packers Fan Suing The Bears: This Is Not Some Noble Crusade (6-1917).” That may not make him an ideal class representative.
The Immediate Future
The case was assigned to District Court Judge Joan B. Gottschall. President Clinton elevated her from Magistrate Judge to the District Court in 1996. She took Senior Status in 2013. After Judge Gottschall received the MTD she entered a Minute Order on Aug. 23, 2017. She gave Beckman until Sept. 14, 2017 to respond and the defendants until Sept. 28, 2017 to reply. She also cancelled hearings scheduled for Sept. 6, 2017 and Sept. 20, 2017. She ended by stating that the “court will rule on the motion by mail and set further dates as necessary after ruling.”
During her many years on the bench Judge Gottschall has handled a number of significant First Amendment issues. Beckman may be passionate about his belief that the First Amendment protects his right to wear Packers clothing to a special area set up by the Bears. The real question, however, is whether Judge Gottschall has such a view of the First Amendment.
The Packers play at Soldier Field on Nov. 12, 2017. Granting the MTD before then would mean the court will avoid ruling on Beckman’s request for an injunction. Denying the motion, however, could lead to some fascinating legal maneuvering. Such cases are a reminder that our word “fan” comes from the word “fanatic.” Either word seems to fit here.
Birren is the former general counsel for the Oakland Raiders and Senior Writer at Hackney Publications
