By Scott A. Andresen
Now is the winter of our discontent, made glorious summer by this sun of York…
—William Shakespeare, Richard III
Approximately 420 years after William Shakespeare put his words into print in Richard III to state that a time of unhappiness was past, they take on a Nostradamus-esque air in the City of Brotherly Love.
Comcast Spectator LP, the owner of the Philadelphia Flyers, NHL Enterprises LP, and a number of other Flyers-related entities (collectively, the “Flyers Defendants”) agreed on December 11, 2013 to settle a class action lawsuit that accused the Flyers Defendants of deceptively excluding tickets to the Flyers’ outdoor Winter Classic game against the New York Rangers from season ticket packages.[1]
Originally filed in the Superior Court of Mercer County, New Jersey on May 4, 2012, the matter was subsequently removed to the United States District Court for the District of New Jersey by the Flyers Defendants immediately thereafter.
The complaint filed by Flyers season ticket holders Joyce Phillips, Gary Mengle and John Bakley alleged that the Flyers failed to provide their season ticket holders with tickets to the NHL’s “Winter Classic” as part of their 2011-12 season ticket packages, and that the Flyers’ subsequent offer to sell Winter Classic tickets, but only as part of a ticket package that also included tickets to a December 2011 game between former Flyers and New York Rangers players, and a January 2012 game between the Adirondack Phantoms and the Hershey Bears, amounted to breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) and the New Jersey Consumer Fraud Act (“NJCFA”). The complaint also asserted claims against NHL Enterprises for intentional interference with contract, inducing breach of contract, unjust enrichment and alleged violations of the UTPCPL and the NJCFA.
The proposed class action settlement class members include Flyers season ticket holders who purchased and paid for full season ticket packages to Flyers preseason and regular season home games for the 2011-2012 NHL season, but excludes season ticket holders that had previously obtained a judgment on a claim that is covered by the releases in the settlement (e.g., the much-publicized Richard Abt small claims victory of $1,364.00 from Comcast Spectator in December 2011). Under the proposed settlement, the Flyers Defendants shall provide each settlement class member with one voucher for each Flyers full season ticket package for 2011-12 purchased, entitling recipients to either (i) $45.00 worth of food and beverage at the Flyers’ home arena, or (ii) recipients’ choice of an on-ice holiday card, scoreboard message during a game, or a piece of game-worn memorabilia (though this requires two vouchers…). The aggregate value for all vouchers issued is estimated in court filings to be between $625,500.00 and $1,100,000.
What Can Be Learned?
Though the Flyers Defendants will, assuming approval of the proposed class action settlement at a fairness hearing on March 24, 2014, likely settle this matter for less than it would have cost to successfully litigate, professional (and amateur) sports teams and leagues should take note of this matter for a number of reasons.
First and foremost, teams should review and revise their season ticket agreements and/or verbiage of communications with season ticket holders to carefully detail the circumstances under which they can remove games from season ticket packages. Be it acts of god, terrorists, team owners or league commissioners (often easily confused for each other), teams need to ensure that they have the ability to pull games out of packages. Teams also need to ensure that they clearly convey how refunds will be determined (e.g., a pre-determined calculation, face price of tickets, etc.) so that there is no possible argument that a particular event was more “valuable” than the price paid by the season ticket holder when they bought their season ticket package. Finally, teams need to ensure that they “make good” to season ticket holders when there is a perception that they are being shorted. As a Chicago Cubs season ticket holder, I can state with no hesitation that loyalty to a team is not based entirely (or at all) on the product currently on the field, ice or court. It is important for those spending many thousands of dollars to know that the organization values and respects them as season ticket holders, because their money could very easily be spent somewhere else.
General Counsel for a Pro Sports Franchise Shares His Insight
Below are some thoughts from a prominent general counsel for a professional sports franchise:
“At its heart the case is one of contract. Thus what was said in the renewal or purchase agreement materials seems to be key. If the Flyers did in fact sell tickets to all home games without a reservation of rights, then there is not much to talk about.
“If there was a reservation of rights, how real, how meaningful was it? Probably not much.
“Setting aside the written materials, there is the question of what was said by their staff. That might be ugly, as sellers always overstate.
“It is also the case that there is a precious bond between the club and ticket holders. To violate that bond invites trouble.
“The final takeaway is probably that the League Office(s) need to get this together before the season ticket renewal process begins. Otherwise, one is quite possibly in breach of contract and other state laws, and it violates the bond between the ticket holders and the club. Buried disclaimers will not likely work.”
Andresen is the principal of Andresen & Associates, P.C. For more info, visit http://www.andresenlawfirm.com/attorneys/andresen/ Research assistance on this article provided by Caitlin Brady, Washington University School of Law
[1] Joyce Phillips, et al. v. Comcast Spectator LP, et al., Case No. 3:12-cv-03606, in the U.S. District Court for the District of New Jersey.
