By Courtney E. Dunn, of Segal McCambridge
For decades, Mexico national soccer team fans have been known to chant “eeeh puto” from the stands, which translates to a derogatory term for male sex workers. When four[1] members of the LGBTQ+ community (“Plaintiffs”) attended the 2019 Confederation of North, Central America and Caribbean Association Football (CONCACAF) Gold Cup Final at Soldier Field in Chicago, they were familiar with the common chant that so often echoes throughout the stadium. Still, they opted to attend the Gold Cup Final. Plaintiffs did so clad in Team USA jerseys detailed with rainbow-colored numbers, thus associating themselves with the LGBTQ+ community.
With the chant in mind, Plaintiffs took a preventative measure in an effort to minimize use of the slur by way of an email to Defendants (though it is unclear which Defendants, specifically) four days prior to the Gold Cup Final. In the email, Plaintiff’s advised that they expected intervention should the chant be used, and reminded CONCACAF of the three-step protocol in place for addressing racist and/or discriminatory behavior, including chants. CONCACAF’s three-step protocol includes: (1) stopping the game and making a stadium announcement; (2) suspending the game for five to ten minutes while teams are sent to the locker rooms and another stadium announcement is made; and (3) abandoning the match if the behavior is continued.
Plaintiffs’ email went unanswered and, as they expected, Plaintiffs had front row seats to the Mexico fans’ chant during the Gold Cup Final. Plaintiffs further alleged that the fans in their surrounding area directed the chant at them in particular, especially after noticing Plaintiffs’ disdain for the vulgarity. In response, Plaintiffs first sent a text message to the phone number contained in the stadium’s online guide for Soldier Field security, which ultimately was not the correct number. Then, Plaintiffs complained to stadium officials and a security guard, who refused to take action, though the reasoning for the refusal remains unclear.
As a result, Plaintiffs claim they suffered harms including physical distress, anxiety, “apprehension from the Discriminatory Chant and the fear that the chant would escalate to a physical altercation,” and mental anguish that persisted after the match, including “injury to their dignity.” The Illinois Department of Human Rights (IDHR) investigated the incident at Plaintiffs’ request and found “substantial evidence” that Plaintiffs were denied full and equal enjoyment of the game due to their sexual orientation. Upon the IDHR’s findings, Plaintiffs sued Defendants in state court, and Defendants removed the case to federal court (JORDAN PENLAND, KARL GERNER, EDWARD R. BURKE, AND PAUL C. BURKE v. CHICAGO PARK DSITRICT, SOLDIER FIELD, AND ASM GLOBAL).
The removal allowed Defendants to challenge the sufficiency of Plaintiffs’ claim under Federal Rule of Civil Procedure 12(b)(6), which requires sufficient factual allegations to show a plausible right to relief.
Plaintiffs asserted two claims – first, that Defendants violated the Illinois Human Rights Act’s (IHRA) prohibition on public accommodations discrimination, and second, that Defendants engaged in civil conspiracy. The Court took issue with multiple facets of Plaintiffs Complaint, and ultimately held that the Complaint failed to provide proper notice of how Defendants’ actions or inactions proximately caused the denial of a publicly available facility, and whether Defendants allegedly acted because of Plaintiffs’ protected status.
While the Court provided analyses and criticism for multiple aspects of Plaintiffs’ Complaint, the Court most interestingly noted that the Complaint’s allegations failed to specify whether Defendants failed to act because of their own homophobic motives, or whether the fans’ alleged sexual orientation discrimination can somehow be attributed to Defendants. The Court noted Plaintiffs’ differing theories of legal accountability, finding that whether fans behaved in a discriminatory manner created separate questions of fact. For example, the issue of whether Defendants acted or decided not to act on a prohibited basis. See, .e.g, Clark v. Safeway, 478 F. Supp. 3d 1080 (D. Or. 2020) (distinguishing between the discriminatory behavior of a public accommodations provider and that of a third party, as well as between inconsistent enforcement and discrimination). The Court decided that the lack of clarity between these two theories created a substantial issue in moving forward with Plaintiffs’ claims. This, coupled with additional inconsistencies and Plaintiffs’ inability to specify which Defendant was allegedly responsible for which claims, led the Court to dismiss the claim of the IHRA’s prohibition on public accommodations discrimination.
Regarding Plaintiffs’ second claim, the Court agreed with Defendants’ position that civil conspiracy fails as a matter of law because the IHRA preempts it. Under Illinois law, civil conspiracy cannot be asserted as a claim on its own. Rather, it is merely a mechanism to hold potential tortfeasors accountable for a separate, tortious action. See, e.g., Adcock v. Brakegate Ltd., 645 N.E.2d 888, 894 (Ill. 1994). Overall, the IHRA unambiguously preempts common law remedies, including conspiracy, for civil rights violations.
Notably, however, Defendants argued rather generally that Plaintiffs’ civil conspiracy claim was “foreclosed by statute.” Defendants were referring to an IHRA exception which refers to free speech and expression of any individual or group that is protected under the First Amendment. In turn, Plaintiffs argued that the exception was inapplicable because, not only were Plaintiffs suing Defendants rather than the fans, but, more substantively, because Defendants were arguing that the fans had the right to chant a slur “puto.” It is well-established that, while the First Amendment protects free speech, there are specifications regarding time, place, and manner restrictions, which would raise a more complex, constitutional analysis. The Court did not decide this issue. Regardless of these latter complexities, the Court dismissed Plaintiffs’ civil conspiracy claim without prejudice.
Factual analyses regarding the responsibilities of each Defendant separately may have assisted in delineating and resolving some of Plaintiffs’ allegations, though the Court did not allow this matter to proceed to the discovery stage so those specificities will remain uncovered. Therefore, it does not seem like the well-known chant will be whispered any time soon.
[1] The Complaint specifies that three of the four Plaintiffs are gay men, while the third was just perceived as being gay – a distinction which has no bearing on the analyses of this matter pursuant to the Illinois Human Rights Act. See 775 Ill. Comp. Stat. 5/103(Q).
