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Sunday, February 06, 2011
Missing seats, Super Bowl tickets, and contract damages

The NFL and the people who run Cowboys Stadium built a lot of temporary seating for the Super Bowl (apparently to set an attendance record by exceeding 105,000), but approximately 1250 seats could not be installed. The league found alternative seating for 850 of those fans, but not for the remaining 400, who were turned away with a refund of triple their ticket's face value--$2400.

Here is a contract remedy question: Are these fans entitled to more and could they successfully sue the NFL for it? Suppose Fan A spent more than $1600 on travel, hotel, etc. He likely spent that money only because he had a ticket to the game and expected to be able to attend, and the NFL knew he will and must make those expenditures to attend the game. So are those recoverable reliance damages? Suppose Fan B paid more than the $ 800 face value because he had to buy the ticket through a broker/scalper. The league controls who purchases tickets and must be aware that many publicly available seats are sold to people who are going to resell them at at least a small profit. I suppose a court might deny recovery there because the beyond-cost resale is against public policy. Still, could Fan B make that case?

Contracts/Remedies people, help me out.

Update: The league is now offering fans one of two packages: 1) $ 2400 (triple face value) plus tickets to next years' Super Bowl, including air fare and accommodations or 2) Tickets, including air fare and accommodations, to any future Super Bowl. Apparently fans balked at the initial offer made Sunday oif triple face value because most spent more than that on tickets, travel, and accommodations.

So a different remedy question: Did the NFL actually go beyond what it would have been on the hook for in litigation? It seems clear Fan A could have sued for all reliance damages (ticket cost, accommodations, etc.). Could Fan A also have gotten tickets to a future Super Bowl, arguing that he was denied the unique experience of attending the game?

Further Update:  The lawsuit (mentioned in the Comments) is a class action in California on behalf of more than 1000 fans. But this must include some of the fans who were given new seats. What more could the fans possibly get, especially the fans who were given alternate seating? They have not been damaged. And, just to get procedural: Is there jurisdiction in California? Is there a good forum non conveniens argument? And should California law (which allows for treble damages) apply? This one could get interesting.


That they started by paying RICO-level damages is encouraging that you can get more. I could imagine getting more with direct expenses (and related ancillaries--pet boarding, car parking, etc.), but it's hard to see punitive damages.

Give you odds--without having seen one--that the tickets don't offer anything above face-value refund, and that the pre-emptive offer will keep anyone from trying.

Blogger Ken Houghton -- 2/06/2011 11:04 PM  

Interesting arguments for additional damages. Seems like the NFL offered treble damages already and I think most reasoned courts or judges would say three times the amount of the ticket is far beyond what is required. Weren't they allowed admission to the game, but they just could not sit?

Anonymous Anonymous -- 2/07/2011 8:00 AM  

No; they were not allowed admission to the stadium. And why is three time face "far beyond what is required" if their total expenses (made in reliance on the expectation that they would be able to watch the game from the stadium) exceed that amount?

Blogger Howard Wasserman -- 2/07/2011 8:20 AM  

Four concepts support the NFL: 1) force majeure (the weather created the problem, not the Cowboys or the NFL); 2) safety (call it public policy if you will)-while the Cowboys could not control the weather, the decision was actually designed to protect its fans from injury; 3) Legality (call it condition subsequent if you will) announcements were made all over the news and the internet prior to the game itself that there might not be enough seats due to delays in fire marshall inspection, a condition precedent to admission. Continuing to the stadium assumed the risk that their seat might still not be available; 4) accord and satisfaction: those who took the refunds likely be barred from suit. The goal of contract law is remarkably different than tort law my friend. However, if you are adamant about the possible legal claims, then everyone could sue in the event they drove to a mall, store, concert, event or anything else which required travel and the event was postponed or cancelled. Would you award gas money in all those cases? Would you award emotional distress? It would open the floodgates to litigation. Of course, that is good for trial lawyers.

Anonymous Anonymous -- 2/07/2011 9:20 AM  

Of course, there's always the good business person decision to avoid a lawsuit altogether. Forget the bar exam question for a second, because apparently "The 400 fans w/out seats last nite went on field postgame, received free merchandise, food, beverage, $2,400, free SB46 tix"...see

...and if true, well, its a rough day for the potential trial lawyer...

Anonymous Anonymous -- 2/07/2011 12:04 PM  

Can we please stop with the gratuitous trial-lawyer bashing (or take it to a different site)? A question was posed to start a doctrinal discussion--not to promote attacks on a group of individuals.

Blogger Howard Wasserman -- 2/07/2011 1:13 PM  


1) I'm not sure how the weather affected the installation of the seats; 3) When were the announcements first made? I was watching NFL Network all day and the first it was announced was after 5PM ET, well after fans were encouraged to arrive at the site.

I think the biggest beef folks should have is that the NFL obviously knew this was a problem during the week but did nothing until mere hours before the game. The contingency plan was incredibly haphazard and apparently spontaneous. Folks were denied entry to the venue until the NFL formulated a plan. Were I to attend the Super Bowl, especially in so lauded a stadium, I would want to arrive hours early to walk around, etc.

Anonymous Josh -- 2/07/2011 1:20 PM  

You know, two other approaches to defend potential plaintiffs would be the frustration of purpose doctrine and the doctrine of impossibility: on the one hand, the weather acted as a force majeure. On the other hand, if the fire marshall could not approve the seating (even if just for sake of argument) then this could be a solid defense for the NFL/Cowboys Stadium as well. Those are both solid contract defenses.

Anonymous Anonymous -- 2/07/2011 1:24 PM  

Howard: sorry about the "trial-lawyer" bashing. Could have been put much differently.

Anonymous Anonymous -- 2/07/2011 1:41 PM  

The last Cowboys game was Dec 19, and they were already out of the playoff race. So the NFL had 6 weeks to get these seats ready and couldn't do it because they couldn't get the fire marshall there on time? Or was there some reason that these seats were not "safe" because of the ice/cold? Not only that, but they didn't tell these fans until the last minute that their seats wouldn't be ready?

Anonymous Andrew -- 2/07/2011 1:48 PM  

You know, on the other hand, if Jerry Jones (as I've just heard) was behind all this just to be able to sell more tickets and break the all-time Super Bowl attendance, then this whole damages thing might have some steam!

Anonymous Anonymous -- 2/07/2011 2:18 PM  

To answer Anon's comment re: floodgates of litigation, I agree w/r/t postponed and cancelled programs. But the Super Bowl was not cancelled or postponed. The venue promised it had seats it did not have. That's an important distinction. A few customers relied on that false promise. Reliance damages are contract damages, perfectly within whatever "goal of contract" law you support. (Agree with throwing IIED out the window).

Howard -- One interesting approach for Fan A is to argue that their seats were revoked -- which was within the NFL's rights (i.e. classic caselaw says that tickets are revocable licenses). If you can draw that analogy -- and it's not so difficult given that these folks were not able/permitted to see the performance -- then I am fairly confident that damages for revoking a license (at least in some jurisdictions) include reliance costs.

I have to believe a smart Texas plaintiff's attorney is considering this argument today. 400 people x rough average of $2,000 in travel damages is a decent chunk of change for a class. Anon points out what I think is the harder argument -- whether they "settled" by going down onto the field, accepting free merch, and so forth.

I'm no damages/remedies expert though . . .

Anonymous Anonymous -- 2/07/2011 3:52 PM  

This is a great discussion and issue for a contracts course!

Anonymous Anonymous -- 2/07/2011 6:57 PM  

One thing that makes the Super Bowl unique is the foreseeability and expectations by the seller of a likelier detrimental reliance by the buyer to incur other costs (travel, hotels, etc).

This isn't like a normal concert or regular game where many of the purchasers are local. Rather, the SB draws people from all over the country.

In fact, it's quite foreseeable that tickets sold in the last two weeks would be from people traveling from the areas where the competing teams play.

Anonymous AS -- 2/07/2011 10:15 PM  

I'd be surprised if a suit like that would fly. If the nfl really wanted to dot their i's and cross there t's they would have tried to have them sign a document thats says they accept the refund plus cash and 46 tickets as a settlement.



Blogger Mikethelawstudent -- 2/08/2011 10:20 AM  

repippImho the cowboys are responsable they were greedy by adding seats in a unsafe place.

Blogger muttsey88 -- 2/08/2011 8:38 PM  

Credit to Howard Wasserman for keeping us posted on this issue and calling for queries on possible legal claims. As it turns out, it appears Howard had keen insights. A lawsuit has (or will) be filed on this matter and apparently a class action one. Great job!

Anonymous Anonymous -- 2/09/2011 11:17 AM  

Here's a link to a class action complaint filed in a Texas federal district court. It should resolve all of the forum and jurisidiction issue.

Anonymous Anonymous -- 2/09/2011 11:49 AM  

The complaint linked to in the comments says the case was filed in the Northern District of Texas. The AP story also states the case was filed in Dallas. So, while your comment about the class including people who accepted other seats is insightful, I think the issues about California are now non-existent.

Anonymous Anonymous -- 2/09/2011 12:35 PM  

As one of the 400 displaced fans and as a lawyer, I respectfully disagree with the emphasis that has been placed on a breach of contract action. While it is true that disclaimer language on the back of the ticket may limit damages, the point you all are missing is that the tickets in and of themselves were bogusly issued. Simply stated, they are to seats that NEVER EXISTED! The real basis upon which punitive damages may be predicated stems from an action for fraudulent misrepresentation and the wanton and willful actions of the NFL in allowing those ticket holders to believe they had seats. I am curious about the analysis of each of the commenters in this blog once they see the "breach of contract" theory is a red herring and the real cause of action is grounded in a claim for fraudulent misrepresntation upon which a claim for punitive damages may be bootstrapped.

Anonymous Paul Kutcher -- 2/20/2011 11:25 PM  

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