On May 19, 2010, the US Court of Appeals for the Third Circuit issued its opinion in Mayer v. Belichick, 605 F.3d 223 (3rd Cir. 2010), affirming the dismissal of Carl Mayer’s lawsuit against the NFL, the New England Patriots and head coach Bill Belichick, arising out of “Spygate.”

The underlying facts of “Spygate” are well-known. During a September 9, 2007 game between the New York Jets and the Patriots at Giants Stadium in East Rutherford, NJ, an employee of the Patriots was caught videotaping signals being given by the Jets’ coaches – a violation of NFL rules. Ultimately, it was determined that this incident was part of a “scheme” dating back to 2000 when Belichick became the Patriots’ head coach.

Mayer, a New York Jets season ticket holder, asserted individual and class claims on behalf of a nationwide class (“[a]ll New York Jets season ticket-holders and other ticket-holders who purchased tickets to games between the New York Jets and the New England Patriots in Giants stadium since Bill Belichick became the head coach of the New England Patriots in 2000”) and a similarly-styled state subclass. Among other things, Mayer alleged that the Patriots and Belichick interfered with ticket-holders’ contractual relations, committed common law fraud, violated state consumer protection law, violated state law prohibiting deceptive business practices, and violated state and federal racketeering laws. Against the NFL, Mayer alleged that the NFL’s destruction of the videotapes was a breach of contract. On behalf of himself and the putative class and subclass, Mayer sought, inter alia, actual damages of $61,600,000 which, under RICO and the New Jersey Consumer Fraud Act, could have been trebled to a total of $184,800,000.

In March of 2009, the US District Court for the District of New Jersey granted defendants’ motions to dismiss, ruling that “Plaintiff has not asserted an actionable injury insofar as he states that upon presentment of his ticket at Giants Stadium, he was permitted entry, and he was able to view a football game between the New York Jets and the New England Patriots.” See Mayer v. Belichick, 2009 WL 792088 (D. N.J) at *2. In so ruling, the district court quoted In re 2005 United States Grand Prix, 461 F. Supp. 2d 855 (S.D. Ind. 2006) for the proposition that “[t]he uniform weight of established case law holds that a failure to satisfy the subjective expectations of spectators at a sporting event is not actionable under law.” The district court also relied on Bowers v. Federation Internationale De L’Automobile, 489 F.3d 316 (7th Cir. 2007), wherein it was held that “[M]ost states agree that the seller contracts only to admit the plaintiff to its property at a given time. The plaintiff buys the ticket, of course, in order to see an event that is scheduled to occur on the ticket-seller’s grounds, but the seller does not contract to provide the spectacle, only to license the plaintiff to enter and ‘view whatever event transpire[s].’ ” Mayer, 2009 WL 792088 at *3 (citing Bowers, supra, at 321).

On appeal, the Third Circuit agreed with the district court’s focus on what it deemed to be the dispositive question – “whether or not [Mayer] stated an actionable injury (or, in other words, a legally protected right or interest) arising out of the alleged ‘dishonest’ videotaping program undertaken by the Patriots and the NFL team’s head coach.” Mayer v. Belichick, 605 F.3d at 230. The Third Circuit found that “[a]t best, [Mayer] 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.” Id.

The Third Circuit found it unnecessary to conclude that ticket-holders possess “nothing more than a license to enter and view whatever event, if any, happens to transpire,” noting that, in the “Spygate” context, “Mayer undeniably saw football games played by two NFL teams.” See id. at 236 (Emphasis by the court). The Third Circuit held open the possibility for a different result where the subject matter of the ticketed event is not delivered (examples used by the appellate court included when games are cancelled, when replacement players are used during a strike, or when something absurd occurs (e.g., professional football players decide to play basketball)). See id. The Third Circuit also noted the perils of giving disgruntled fans standing to sue in court when an event is marred by rules, infractions, blown calls, dishonesty, or cheating. See id. at 236-237.

The Third Circuit’s decision in Mayer v. Belichick comes as welcome, if not groundbreaking, news for our sports industry clients. A reversal by the Third Circuit would have signified that Mayer had stated cognizable claims, which may have opened the floodgates for similarly-rooted litigation and the potential for disastrous precedent. It is interesting to consider how the Third Circuit would apply its reasoning to other, currently evolving situations (for example, a suit by ticket-holders to college sporting events where, after the fact, wins are vacated by the NCAA as part of a punishment for rule violations).

For additional information, please contact:

Richard D. Buckley, Jr.
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213.443.7569

Arent Fox’s sports practice is one of the most experienced in the United States. Our attorneys have served as counsel to various professional teams, including the Washington Wizards, the Charlotte Bobcats, the Detroit Pistons, the Oklahoma City Thunder, the New Jersey Nets, the Tampa Bay Rays, the Washington Capitals, and the DC United. Arent Fox also has advised numerous purchasers and sellers of professional teams and events. In addition, we have advised entities on both sides of major naming rights and sponsorship transactions, such as the Barclays Center, Time Warner Cable Arena, AT&T Park, and PPL Park.

For more information about Arent Fox’s Sports Practice, please visit us online or contact:

Richard L. Brand
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