GARY CHESTER

When the New York Giants crossed the Hudson River to play in the New Jersey Meadowlands in 1976 and the New York Jets followed eight years later, neither team opted to place “New Jersey” in its official name. This created conflicting feelings among New Jerseyans who were delighted to host two NFL teams but regarded their continuing identification with New York as “offsides.”

Fans on the New Jersey side of the Hudson did not file a legal action to force a name change; they bought season tickets instead.

Decades later, an effort to compel the Jets and Giants to change their names came from an unlikely source: New York football fans who filed a lawsuit in 2022 alleging that the Jets, the Giants, and the NFL are engaging in consumer fraud. The class action (read: seeking billions in punitive damages) asserts that ticketholders were misled into believing the teams played in Manhattan, and they would not have bought tickets if they had known about the arduous 20-minute trek from mid-town into northern New Jersey.

Really, that is what they alleged. They not only sought damages, but asked the U.S. District Court in Manhattan for an order forcing the teams to remove all references to New York from their names, logos, and advertising.

In Suero v. NFL, 2022 U.S. Dist. LEXIS 228206 (December 16, 2022), the court considered the plaintiffs’ claims in a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The “Ten Lies”

The plaintiffs are residents of New York City who alleged they were deceived into believing that the Jets and Giants played their home games in New York and/or were inconvenienced in traveling to New Jersey to attend a game. How so?

The Amended Complaint set forth “Ten Lies,” including that the Jets and Giants are New York teams and that their home stadium, MetLife Stadium, sets the standard for venue excellence and is under 20 minutes from New York City. The tenth lie “is the MetLife logo, which consists of the words ‘MetLife Stadium’ beneath the New York Skyline”; this allegedly misrepresents that the stadium is located in New York City. Seriously?

The Allegations

The plaintiffs alleged that the representations of the Jets, the Giants, and the NFL amount to false advertising and fraud. The defendants brought a motion to dismiss the amended complaint, which is essentially asking the court to dismiss the case at a very early stage.

U.S. Magistrate Judge Barbara Moses considered the parties’ arguments and presented a written recommendation to the presiding judge, Alvin Hellerstein.

The Arguments

The plaintiffs argued that while other NFL teams play outside the city for which they are named, the Jets and Giants are the only teams that play in an entirely different state. They cited various laws restricting product labels, including a Vermont statute regulating the use of “Vermont maple”; they likened the Jets and Giants to “corn syrup being falsely labeled Vermont Maple Syrup.”

This was a rather clever ploy, but the plaintiffs’ game plan was akin to a flea-flicker with one-too-many handoffs. Trick plays can be fun, but if an offense gets too cute it results in mistakes.

Conversely, the defendants did not need to mount a legal blitz; they simply argued that the plaintiffs failed to address the obvious weaknesses in their case.

The Decision

Turnovers will kill a team’s chances in the course of a big game. It seems the plaintiffs fumbled at least three times in the litigation. First, the plaintiffs failed to provide the citizenship of the defendants in their pleadings filed with the court. Since the plaintiffs did not show that the parties are domiciled in different states, the magistrate found that the court did not have the authority or jurisdiction to hear the case [under 28 U.S.C. Section 1332(a)(1)]. (The court noted that the Jets, the Giants, and the NFL are all domiciled in New York and the parties must be based in different states for a federal court to have jurisdiction.)

Second, the defendants argued that the plaintiffs dropped the ball by failing to allege that the NFL was responsible for promoting any of the so-called Ten Lies. The plaintiffs failed to address the issue in their opposing brief, thereby abandoning their claims against the NFL.

The third fumble was the plaintiffs’ failure to state a claim under the New York General Business Law (Section 349) which prohibits advertising that is “misleading in any respect.” A complaint for false advertising or deceptive acts must allege that the challenged transaction was consumer-oriented, involved materially misleading practices, and caused injury.

While the plaintiffs alleged that the defendants’ use of New York in their names or in the MetLife stadium logo was confusing, they did not raise any facts tending to show that the conduct was likely to confuse reasonable consumers. It is not enough to claim that a plaintiff was misled; a complaint must allege facts showing that “a significant portion of the general consuming public…acting reasonably in the circumstances” could be similarly misled. (This is often achieved in trademark cases through consumer surveys.)

To support its recommendation to dismiss the action, the magistrate noted that there is nothing remarkable about professional sports teams moving to the suburbs while retaining the name of the city where it formerly played. The court also noted that the MetLife Stadium website indicated that the facility is located in New Jersey.

Further, the plaintiffs did not allege they suffered any material harm from the alleged deception. (Sorry New Yorkers, but sitting in traffic on the George Washington Bridge or in the Lincoln Tunnel to New Jersey is not considered a legal injury.)

Finally, the court found that the plaintiffs’ reliance on National Football League Properties, Inc. v. New Jersey Giants, 637 F. Supp. 507 (D.N.J. 1986), was misplaced. There, the Giants brought a trademark claim against a company that called itself New Jersey Giants, Inc., and sold unlicensed apparel bearing the mark “New Jersey GIANTS” in direct competition with the team’s sales of licensed NFL merchandise bearing the New York Giants marks.

The New York Giants routed the New Jersey Giants when the court found that “NEW YORK GIANTS” and related marks were “valid,” “nationally recognized,” or “might conceivably be misunderstood by some few consumers.”

In contrast, the New York plaintiffs here suffered a shutout. Magistrate Moses did not find that any of the Ten Lies were likely to mislead reasonable consumers and she recommended a dismissal of all claims.

The Epilogue

• The litigation was halted for a review from Judge Hellerstein, as the magistrate’s recommendation to grant the motion to dismiss did not constitute a binding decision.
• The plaintiffs punted before the court issued a final ruling when they agreed to a stipulation of dismissal of all claims with prejudice and without payment of any legal fees or court costs.

When last seen in court, the United States Football League was licking its wounds over a meritorious 1986 antitrust case against the NFL that netted it a whopping $1 in damages, trebled to $3, plus $5.5 million in attorney’s fees and costs. Failing to obtain the billions it sought from the NFL, the USFL promptly folded after completing just three seasons.

Fast forward to June 3, 2021, when businesses known as The Spring League (TSL) and USFL Enterprises announced the launch of a revamped USFL with eight teams that would play primarily in Birmingham, Alabama, to limit costs. The new USFL is clearly a made-for-TV venture that Fox Sports owns and operates. Fox and NBC covered the league’s inaugural ten-week schedule and three postseason games.

Nine months after the initial announcement, nine former USFL team owners and devisees formed a new company called The Real USFL. The purpose of the entity is to hold and enforce the original USFL trademarks. The U.S. District Court for the Central District of California evaluated their trademark claims in Real USFL, LLC v. Fox Sports, Inc., et al., 2022 WL 1134487 (April 14, 2022).

The Facts
After the original USFL disbanded, the owners elected Steve Ehrhart to chair the USFL Executive Committee to preserve the name and legacy of the league. Ehrhart, the league’s executive director, entered into licensing agreements for apparel, books, and films, and in February 2022 assigned all rights to The Real USFL.

Despite not owning the original USFL league and team names and logos, the new USFL used the original league name and team names such as the New Jersey Generals, Birmingham Stallions, and Tampa Bay Bandits. TSL and USFL Enterprises used former USFL players to promote the new USFL to establish a connection with the past.

In preparation for the debut of the new USFL, the league’s investors spent tens of millions of dollars on player contracts, stadium leases, apparel deals, and other essential items. The City of Birmingham also invested substantial resources in the new league.

The Litigation
The Real USFL commenced a legal action to enforce its intellectual property rights on February 28, 2022. The plaintiff filed the operative First Amended Complaint and a motion seeking injunctive relief against the new USFL using its trademarks and logos on March 17, 2022. The Real USFL alleges the defendants, Fox Sports and TSL, are liable for trademark infringement, false advertising, false association, unfair competition, and tortious interference with contract.

U.S. District Judge John F. Walter decided the motion based on the parties’ written briefs, without oral argument.

The Legal Standard
To obtain the extraordinary remedy of a preliminary injunction, the moving party must establish: (1) a likelihood of success on the merits; (2) that it will likely suffer irreparable harm absent a preliminary injunction; (3) that the balance of equities tips in its favor; and (4) that an injunction serves a public interest.

The court concluded that the Real USFL is likely to prevail on its trademark infringement claim because it has a protectable ownership interest in the trademarks and the defendants’ use of the marks is likely to cause customer confusion.

The defendants argued that the original USFL had abandoned its trademarks, that a third party registered the trademarks with the U.S. Patent and Trademark Office in 2011, and that the marks were assigned to TSL on April 9, 2021. The plaintiff conceded that the original USFL trademarks lapsed in 1986 when the league ceased operations, but that the plaintiff started to use the marks again in 2006 when Ehrhart contracted with an apparel company to produce nostalgic USFL clothing.

The court found that The Real USFL would likely prevail on the merits. This was based on California Cedar Products Co. v. Pine Mountain Corp., 724 F. 2d 827, 830 (9th Cir. 1984), which held that the “first party to use an abandoned trademark in a commercially meaningful way after its abandonment, is entitled to exclusive ownership and use of that trademark.”

Having satisfied the first prong, could The Real USFL meet the additional requirements for a preliminary injunction?

The Court Denies the Injunction
Although the plaintiff could establish a likelihood of success on the merits, the court ruled that it was unable to meet the three remaining requirements. The Real USFL contended that use of the marks by the defendants would impair its ability to preserve the USFL’s legacy and reputation and cause irreparable harm. But the court recognized that The Real USFL’s use of the marks since the demise of the league was minimal.

“For the past four decades” the court wrote, “Plaintiff’s members use of the Marks and efforts on behalf of the USFL were virtually nonexistent. In fact, Defendants have undoubtedly generated more goodwill for the USFL since announcing the launch of the New League eight months ago than Plaintiff’s members have accomplished in the past forty years.”

After determining that denying the injunction would not cause irreparable harm, the court considered the balance of equities. The court observed that The Real USFL is not seeking to use the marks to promote a competing football league, but the defendants have made substantial investments in intellectual property rights and contracts to start the new USFL. The court found that the equities favor the defendants, stating: “An injunction would effectively stop all of the New League’s activities while Defendants rebranded both the league and the teams, jeopardizing Defendants’ investments and threatening the existence of the New League itself.”

Finally, the court considered whether granting an injunction would serve a public interest. Judge Walter found that the risk of public confusion was limited to a few small apparel sales, as opposed to the new league’s players, business partners and others suffering substantial losses if the court issued an injunction.
Laches was a Factor

Although the court did not specifically apply the equitable concept of unjust delay, or laches, The Real USFL’s delay in filing the lawsuit was a factor in the ruling.
Had the plaintiff filed suit before the defendants entered into contracts and took on other obligations, the court stated, the analysis of public interest factors might have favored the plaintiff. The court wrote: “Because of the delay, however, there is an unacceptable level of economic harm and this factor weighs strongly against granting Plaintiff’s Motion.”

The Takeaway
Do the USFL’s intellectual property rights have any substantial value? Here are some facts:
• Telecasts of the new USFL’s regular season games averaged 715,000 viewers, according to the Sports Business Journal.
• The USFL championship game between the Philadelphia Stars and the Birmingham Stallions averaged a 0.9 rating and 1.52 million viewers on Fox, placing it 46th out of the 63 primetime shows on the four major networks, according to sportsmediawatch.com.
• The new league plans to conduct its second season in 2023, but the lawsuit presents an overhang to its investors because Judge Walter found that The Real USFL possesses intellectual property rights and is likely to prevail, based on Ehrhart’s revival of USFL trademarks in 2006. Either an injunction or substantial damages for infringement would strike at the heart of the defendants’ business plan.

This appears to be a case where a licensing agreement may be the best outcome for all parties. Fees would likely be modest, as the value of the marks would seemingly pale in comparison to NFL and NCAA trade names and logos.

Lastly, the lack of success of prior spring football leagues such as the XFL and the original USFL makes it interesting to see if the new USFL outlasts this litigation.

[This article originally appeared in the Sports Litigation Alert, the leading online sports law publication, and is reproduced with its permission.]

Dozens of young athletes die each year from blunt trauma, heart attacks, and other conditions. Given their age, this is extremely sad. But many of their deaths are tragic because immediate medical aid could have saved them.

One such tragedy is recounted in a civil lawsuit filed in Washington State court, Harris v. Federal Way Public Schools, 2022 Wash. App. LEXIS 396, No. 81179-7-1 (February 28, 2022). Regardless of the final outcome, the case exemplifies the need for school districts and other organizers of youth sports to formulate and rehearse emergency action plans to save the lives of young athletes.

The Facts

Sixteen-year-old Allen Harris was participating in a summer football conditioning workout at Federal Way High School (FWHS), located about 11 miles north of Tacoma, on an 80-degree day in July 2018. Three coaches supervised the workout, but for some undisclosed reason FWHS did not have its athletic trainer present at summer workouts.

After completing three sets of sprints, Harris collapsed and experienced what appeared to be seizures. The young student-athlete had no prior medical history of seizures or head trauma.

One of the coaches called 911. The EMTs arrived about eight minutes later. The lawsuit concerns what did not happen during those eight minutes: the coaches did not administer CPR, nor did they retrieve or use a nearby AED to try to revive Harris.

The EMTs administered CPR and used an AED before transporting Harris to a hospital, where he died approximately two hours later. The cause of death was sudden cardiac arrest.

The Allegations

Harris’ parents, individually and on behalf of their son’s estate, sued the school district but not the individual coaches for wrongful death. The complaint alleges that the district breached a duty of care towards Harris by failing to create a medical emergency response plan, failing to properly train its coaches, and failing to provide prompt and immediate medical attention.

The school brought a motion for summary judgment based on a two-part argument: first, since the plaintiffs did not name the coaches as defendants, their negligence cannot pass through to the school district, which is normally the case when an employee acts negligently while on the job; second, the plaintiffs are unable to prove the requisite gross negligence by the district because its coaches exercised at least slight care.

The trial judge heard testimony from three expert witnesses in the fields of medicine and athletic training who attributed Harris’ death to the negligent failure to use CPR and the nearby defibrillator. Dr. Jonathan Drezner, a professor of medicine with the University of Washington and the team physician for the Seattle Seahawks and the University of Washington Huskies, testified that the district’s failure to properly train its coaches violated state and federal standards.

Dr. Drezner further testified that there was no review or rehearsal of an emergency medical response plan, and that Washington Interscholastic Activities Association training “clearly states to assume [sudden cardiac arrest] in a collapsed and unresponsive athlete with seizure-like activity” and that the coaches’ misinterpretation of Allen’s collapse as a seizure “led to critical delays in CPR and defibrillation.”

The trial judge found that the plaintiffs had established a prima facie case of negligence and denied the motion for summary judgment. The district appealed to the Washington State Court of Appeals.

The Appeal

On appeal, the district argued that since there is no vicarious liability the district cannot be negligent under Washington law. The court rejected this argument because the state courts “have long recognized that school districts have ‘an enhanced and solemn duty’ of reasonable care to protect their students.” This duty applies to student-athletes and constitutes a separate cause of action from any potential action against a teacher or coach.

Quoting various precedents, the court explained that negligent supervision is “based on the theory that ‘such negligence on the part of the employer is a wrong [to the injured party], entirely independent of the liability of the employer under the doctrine of respondeat superior’…[and] is based on the special relationship between the employer and employee…”

The court also rejected the district’s contention that the gross negligence standard of care that state law affords to school district employees should extend to the district. The court explained: “On its face, the plain language of the statute grants ‘any school district employee’ rendering emergency care immunity from liability unless the acts or omissions rise to ‘gross negligence’ or are willful or wanton misconduct. Because this is a derogation of the common law standard of ‘reasonable care’ that a school district owes its students, the statute must be strictly construed… The plain language of [Washington statute RCW 4.24.300(4)] applies only to school district ‘employees,’ not the school districts themselves.”

          Therefore, the court concluded, a standard of ordinary care applies to a school district, and there exists a genuine issue of material fact as to whether FWHS breached its duty of ordinary care owed to the plaintiffs’ decedent.

The Takeaway

• Emergency Action Plans (EAPs) have been a well-known component of safety in sports for decades and recognizing and treating sudden cardiac arrest is a key part of EAPs.
• Insurance companies, as well as attorneys for municipalities, school districts, and sports organizations, should frequently emphasize that coaches and athletic personnel must be familiar with EAPs and must periodically rehearse and practice the procedures contained in EAPs.
• A basic principle of tort law and agency law is that an employer may be found vicariously liable for the negligent acts of its employees. But can a school district be held liable for the death of a student-athlete when the coaches involved are not named as defendants? According to the decision in this case, the answer is in the affirmative.

THOMAS v. AUBURN UNIVERSITY: FOUR PEOPLE IN AUBURN’S ATHLETIC DEPARTMENT ALLEGEDLY KNEW THAT A PROFESSOR WAS PRESSURED TO CHANGE A FOOTBALL PLAYER’S GRADE. NONE OF THEM REPORTED IT TO THE NCAA. THREE WERE WHITE, ONE WAS BLACK. ONLY THE MINORITY EMPLOYEE WAS FIRED.

Football and basketball are akin to religion in many parts of the country. Winning is paramount, and sometimes high schools and colleges bend the rules to achieve that goal. History, and a 2022 lawsuit, illustrate that Auburn University may be a case in point.

In 2003, the Southern Association of Colleges and Schools placed Auburn on probation partly because the school’s president failed to show that he had control of the athletic program. Three years later, the NCAA found that Auburn committed secondary rules violations relating to a professor awarding high grades to football players. And in 2017, the FBI charged assistant basketball coach Chuck Person with taking bribes to steer pro prospects to an agent and financial adviser. (Auburn fired Person and the NCAA imposed sanctions on the basketball program.)

Now comes Travis Thomas, a black male whom Auburn terminated from his position as an athletic academic advisor in Spring 2021. In Thomas v. Auburn University, No. 3:2121cv00192 (M.D. Ala. 2022), Thomas alleges wrongful termination arising out of a grade-changing episode.

The Facts

Auburn hired Thomas in 2017 as an academic advisor. He was subsequently promoted to director of academic support services, and as such, he supervised the football and volleyball academic staff, counseled student-athletes, and served as a liaison between academic staff and coaching staff. Thomas served on an academic leadership team that included three white females—Kathryn Flynn, Courtney Gage, and Cathie Helmbold.

Flynn was the senior employee on the leadership team. Thomas alleges that Flynn, Gage, and Helmbold created a hostile work environment in July 2019 by openly disparaging and ridiculing his work. At one meeting, Flynn berated Thomas in front of staff, stating that “the grades for football are the worst they’ve ever been” and calling Thomas “lazy, sloppy, and last minute.”

After Flynn excluded Thomas from leadership team meetings, a white academic counselor allegedly told him, “It’s always double standards the way they treat you.” Thomas alleges that blacks were treated differently, leading to high black employee turnover, because disparaging remarks were made to them but not to white employees.

Thomas complained to the assistant athletic director and to human resources, but nothing changed. He filed a claim with the Equal Employment Opportunity Commission and his attorney corresponded with the athletic director. The issues were not resolved, and Thomas received a poor performance review three weeks after filing the EEOC charge. Thomas supplemented his EEOC claim to include an allegation of retaliation.

In December 2019, an Auburn football player was failing a class and needed a passing grade to play in an upcoming bowl game (the 2020 Outback Bowl against Minnesota). According to Thomas, Auburn officials were pressuring the professor to change the player’s grade. Thomas brought this matter to the attention of Flynn, Gage, Helmbold, and others, but he was later told that the player’s grade was changed.

A year later, Auburn officials turned the issue against Thomas. Auburn’s compliance officer in January 2021 told Thomas he violated NCAA rules by not reporting the grade-changing incident. Four weeks later, Auburn fired Thomas, who alleges that Flynn, Gage, and Helmbold did not report the incident but were not threatened or fired.

The Litigation

Thomas states three causes of action in the operative Second Amended Complaint for wrongful termination: race discrimination, racially hostile work environment, and retaliation. The court decided Auburn’s Motion to Dismiss the Second Amended Complaint on February 11, 2022.

Auburn argued that Thomas cannot prove race discrimination because he cannot show that he was treated less favorably than a similarly situated individual outside his protected class. Auburn argued that Flynn, Gage, and Helmbold are not proper “comparators” under the pleading standard enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (criterion for employer’s action must be applied alike to similar-situated members of all races).

The court denied Auburn’s motion, noting that an employment discrimination plaintiff is not required to plead a prima facie case to survive a motion to dismiss, but must adduce proof of discrimination to survive a later motion for summary judgment. “And further,” the court stated, “even if Thomas failed to identify a proper comparator, this does not necessarily doom his claim as there are other methods by which Thomas could make out a case of race discrimination. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1327-28 (11^th Cir. 2011).”

As to the hostile work environment claim, the court stated that Thomas was required to allege that: “(1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his membership in the protected group; (4) it was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive working environment; and, (5) the employer is responsible for that environment under a theory of either vicarious or direct liability.”

The court dismissed the claim because Thomas did not allege facts sufficient to show that the alleged harassment was severe or pervasive. The court reasoned that while Thomas was publicly criticized and was called “lazy, sloppy, and last minute,” the alleged conduct, while rude and unprofessional, did not rise to the level of hostility protected by Title VII of the Civil Rights Act.

As to the retaliation claim under Title VII, the court denied the motion to dismiss even though substantial time had passed between Thomas’s EEOC filing and his termination. (The motion addressed Thomas’s termination, but not Auburn demoting him after he filed an EEOC claim.)

To prove retaliation, a plaintiff must allege that he engaged in statutorily protected conduct, suffered an adverse employment action, and that the two are connected. Auburn argued that Thomas cannot show a connection because he failed to plead that the individuals who decided to terminate him knew he had filed an EEOC claim. Auburn also asserted that an eight-month gap between the EEOC filing and the termination shows there was no connection between the two events.

The court ruled that Thomas was entitled to an inference that the decision-maker knew about the EEOC claim because Thomas’ attorney had informed both Auburn’s athletic director and the Office of General Counsel. Thomas was also entitled to an inference that his termination was retaliation even though it occurred eight months after he filed his EEOC claim. The court noted that the termination could be considered part of a continuous pattern of antagonism that began promptly after the filing. The pattern included a negative job evaluation, the removal of Thomas’ supervisory duties, continued rude conduct by the leadership team, and Flynn directing the football staff to not speak with Thomas.

The Takeaway

• Employers need to recognize the potential legal liability when they implement an adverse employment action against an employee who has been promoted but took an ethical position they did not like.
• The bar for hostile work environment claims is relatively high, and the court rightly dismissed Thomas’ claim.
• Big-time college sports coaches and administrators must respect the autonomy of professors and accept the consequences when student-athletes fail a course. (Despite the player’s eligibility, Auburn lost the 2020 Outback Bowl to Minnesota, 31-24.)

[This post was originally published in the Sports Litigation Alert, the leading sports law publication, and is reproduced with permission. Mr. Chester is a senior writer for the publication.]

I’ll take the unusual step of providing the moral to the story at the beginning rather than the end: Don’t bring firearms to a college campus. That’s one of the lessons of a 2021 Colorado decision in Williams v. Sonnentag.

The Facts

Kevin Williams, Jr. is a 22-year-old University of Northern Colorado graduate student and football player. The University suspended Williams after discovering a loaded pistol in his unsecured, unattended backpack in the team’s locker room on August 12, 2021. According to Williams, “the last time he had seen the weapon was about a week after July 4, 2021, when he used it for recreational shooting practice, and…he did not realize it was missing until he was notified on August 12, 2021 that it had been found in the locker room.”

At a hearing before the Dean of Students, Dr. Colleen Sonnentag, Williams said he had a permit to carry a concealed weapon because of his “high-risk work environment with at-risk youth” in his home state of Nebraska. He said that he had completed a course on gun safety and had written an essay on gun safety.

Sonnentag found that Williams had committed a “Deadly Weapons Violation” under the University’s Student Code of Conduct (“the BEAR Code”) and suspended him through the end of the spring semester of 2022.

Williams appealed, claiming the outcome was too harsh because his conduct was unintentional. Those who handled the appeal (“appeal readers”) agreed with Williams. They sent the matter back to the Dean and suggested she apply a lesser punishment. Sonnentag didn’t buy it, however, opting instead to increase the penalty by requiring Williams to write another essay on gun storage and safety.

Williams then filed a legal action against Sonnentag and the University’s Board of Trustees, alleging they violated his due process rights by imposing a harsher punishment after he essentially won his appeal.

The Legal Analysis

The court noted that the U.S. Supreme Court has set forth the minimal due process requirements for students subject to short suspensions not exceeding ten days (Goss v. Lopez, 419 U.S. 565, 584 (1975)), but not for longer suspensions.

As to procedural due process, the court discussed the due process afforded to students in the BEAR Code, including the right of the appeal readers to reverse the original resolution, affirm it, or remand the matter to the Dean for further consideration.

The court found that the BEAR Code did not give the Dean authority to reject the conclusions of the appeal readers. The court also found that the plain language of the BEAR Code “does not compel the conclusion that when appeal readers ‘remand’ a case, rather than ‘reversing’ it, the Dean may reject the appeal readers’ findings or conclusions.”

The court stated that Dean Sonnentag was free to consider the appeal readers’ recommendations but was not free to re-consider their conclusions; she was supposed to consider the lesser sanctions that were recommended and to “fashion a new outcome that was less severe than the one she had originally imposed.”

Thus, the University violated Williams’ procedural due process rights by not providing him with a meaningful opportunity to present his case on appeal.

As to substantive due process, the court found that Sonnentag’s decision on remand was arbitrary and capricious because she mischaracterized Williams’ case as similar to previous cases. In those cases, however, the original decision was either not appealed or was affirmed by the appeals readers. Here, the appeals readers did not affirm the initial decision.

The court held that Dean Sonnentag violated Williams’ substantive rights by ignoring the appeals readers’ recommendations, which she had no authority to do under the BEAR Code.

The Ruling

To obtain relief from the court, Williams needed to show that he would probably win his case and that he would suffer “irreparable harm” if the court did not issue an injunction preventing Sonnentag from taking action. Since the court found that Williams’ rights were violated, the next requirement was to show irreparable harm if the court denied an injunction. The University argued that Williams would not suffer irreparable harm because he was suspended and not expelled, and that he could take courses at another school during the suspension. Williams argued that a “suspended for conduct” notation on his transcript would harm his chances of obtaining educational or professional opportunities.

The court held that a delay in Williams’ education and a notation of the suspension on his academic record would constitute irreparable harm. The court further held that the harm to Williams outweighs the University’s interest in campus safety because the appeal readers found that Williams, as a football player, is a campus leader who does not pose further risk to fellow students.

The court issued an injunction and ordered Dean Sonnentag to render a decision that considers both the appeal readers’ determination that the original decision was too harsh and that Williams had already been suspended for most of the fall semester.

The Takeaway

• Administrators should review their school’s applicable code of conduct before they participate in disciplinary hearings.
• Students should review their school’s applicable code of conduct before they engage in extreme acts such as bringing deadly weapons to campus.

[Mr. Chester is a senior writer for Sports Litigation Alert, the premier digital sports law publication. This article is re-posted by permission of the publisher.]

[Reprinted from the Sports Litigation Alert newsletter, of which the author is a Senior Contributing Writer.]

Q. When is a contract not a contract?

A. When it violates public policy.

First-year law students learn that courts will void an otherwise enforceable contract if the terms of the contract violate public policy. A basic example of a substantively unconscionable contract is a fitness center agreement in which the patron waives the right to sue the gym for personal injuries, regardless of whether the facility’s conduct was negligent or intentional.

Cases of procedural, as opposed to substantive, unconscionability are harder to find. But our nation’s pastime has provided us with one such case, Zuniga v. Major League Baseball, 2021 Ill. App. LEXIS 111 (App. Ct. of Illinois, No. 1-20-1264, March 16, 2021).

THE FACTS

Laiah Zuniga’s father gave her a ticket to the Mets-Cubs game at Wrigley Field on August 27, 2018. Zuniga was struck by a foul ball while eating a sandwich she bought at the game and suffered serious head injuries requiring hospitalization and subsequent rest at home. She missed two weeks of work and did not read or engage in any eye-straining activity pursuant to her doctor’s orders.

Zuniga filed a complaint in state court against Major League Baseball (MLB) and the Cubs for negligence. The defendants moved for an order compelling binding arbitration per the terms and conditions of the ticket. The trial court denied the motion and the defendants filed an interlocutory appeal.

The appeals court noted that the back of the ticket consisted of an ad and six lines of fine print, reading in part: “By using this ticket, ticket holder (‘Holder’) agrees to the terms and conditions available at www.cubs.com/ticketback (the ‘Agreement’), also available at the Chicago Cubs administrative office.” The fine print also warned spectators to be alert for baseballs being hit into the stands and that any disputes that may arise “shall be resolved by binding arbitration…”

It was undisputed that the plaintiff did not read the fine print or go to the website and that the website contained a comprehensive eight-paragraph mandatory arbitration agreement. Buried in the sixth paragraph was a sentence permitting the holder to opt-out of the Agreement within seven days after the event.

Zuniga argued at the trial level that the Agreement was unconscionable because the terms were set forth on the ticket in tiny type that did nothing to highlight the arbitration provision or the need to visit a separate website to ascertain the full terms and conditions being agreed to. The trial court ruled that the arbitration provision was procedurally unconscionable on this basis and denied the defendants’ motion to compel arbitration.

PROCEDURAL VS. SUBSTANTIVE UNCONSCIONABILITY

The appellate court considered substantive unconscionability as well as procedural unconscionability. The court stated that the former is found where contract terms are “inordinately one-sided” and the latter is where contract terms are difficult to find, read, or understand. The court added that procedural unconscionability “consists of some impropriety during the process of forming the contract depriving a party of a meaningful choice.”

The court observed that the Illinois Supreme Court applied procedural unconscionability to invalidate a term in a car warranty where the warranty was printed in the car owner’s manual inside the glovebox and unavailable to the owner until after she purchased the car. But the doctrine did not apply in another case where a cellular phone service customer acknowledged in writing that she had read a written service agreement containing an arbitration clause in fine print on the back of the document.

THE APPELLATE DECISION

The Cubs and MLB argued that the terms of the arbitration clause set forth on the ticket were simple and conspicuous. The appellate court rejected the argument and affirmed the trial judge’s decision. The principal reasoning was that the paper ticket only contained a summary of the terms and conditions of the Agreement and not the full provisions.

The court also reasoned that:

• A ticket holder is unlikely to access the full agreement on the internet or review it at the team’s offices while attending a game;
• Nothing on the ticket tells the holder that he/she is giving up important legal rights; and,
• The summary pertaining to arbitration is not emphasized in any way and it uses dense legal language.

The court distinguished the circumstances under which the Agreement was created – holding a ticket to be scanned at the gate – from an internet transaction in which the consumer can read all the terms and must click on an electronic button to assent. Here, the court stated, there was “more of an effort to impose the onerous terms of one’s carefully drawn printed document on an unsuspecting contractual partner.”

THE COURT GOES THE EXTRA MILE

The court could have ended its opinion with this finding, but it proceeded to find that the Agreement was also substantially unconscionable. It found that the opt-out period of seven days was not reasonable given that the plaintiff was unable to read or engage in eye-straining activity for at least seven days. In addition, the Cubs required the plaintiff to provide an account number in the opt-out request and Zuniga had no account number with the club.

“These additional factors support our holding that the arbitration provision at issue is unenforceable,” the court concluded. “[A] contract term can be invalidated on the basis of procedural unconscionability, substantive unconscionability, or a combination of both.”

You might say the Cubs, as is often the case, hit into a double play.