In my torts class, we discuss sports torts and defenses. One of those issues is the common inclusion of waivers and binding arbitration language on the back of tickets in microscopic type. That issue came up in an interesting case involving the Chicago Cubs. (For full disclosure, I am a lifetime Cubs fan and personally secured their last World Series win). Last week, a three-justice panel of the Illinois First District Appellate Court in Chicago ruled against MLB and the Cubs in seeking to enforce the boilerplate language on arbitration printed on the back of baseball tickets. The Cubs have not been so shocked since Steve Bartman reached out and interfered with Cubs outfielder Moises Alou catching the ball with the Florida Marlins in 2003.
Zuniga was hit in the face with a foul ball at Wrigley in 2018. We have previously discussed such cases and rulings on the standard MLB defenses. She was eating a sandwich at the time and did not see the ball that left her with facial fractures (and four days in the hospital).
Zuniga used a paper ticket that her father won in an office raffle. After she sued, MLB and the Cubs argued that she had no legal right to sue. MLB cited the tiny print on the back of the ticket that states “baseballs might be hit into the stands, that spectators should stay alert, and that the Cubs and other entities would not be liable for resulting injuries.”
The language also states that any disputes over legal claims against MLB or the Cubs that arise from their attendance at Wrigley Field “shall be resolved by binding arbitration … in Chicago, Illinois.”
However, Cook County Circuit Judge Kathy Flanagan ruled with Zuniga and held that the terms and conditions included with the ticket were “unconscionable.”
Now the Appellate court has agreed. Writing for the Court, Judge James Fitzgerald Smith noted that arbitration clauses are generally enforceable, even when consumers presented in a “take-it-or-leave-it” provision. However, Smith balked at enforcing this provision:
it does not seem that the ticket itself or other surrounding circumstances were sufficient to bring this to the plaintiff’s attention. We also question how far in advance of attending a game that a person can reasonably be charged with the need to read the terms and conditions on the back of a baseball ticket, and we believe MLB and the Cubs overstate the realistic opportunity that a person has to read the full arbitration provision on a cellular phone once he or she is within the commotion of entering Wrigley Field and recognizes the need to do so. Furthermore, given that the Cubs omitted from the ticket any information that a person has the right to opt out of arbitration within seven days, this would seem to be an unreasonably short time for a person with injuries as severe as those suffered by the plaintiff to have a meaningful opportunity after the game to learn of the right to opt out of arbitration and take the actions necessary to do so.
This decision does not even deal with the fact that most tickets used today are electronic or digital — adding further issues of notice and comprehension for fans. Few people believe that fans read or understand what operates like an adhesion contract with no input or bargaining power from fans. The MLB dictates these waivers and onerous arbitration conditions to protect itself from lawsuits.
This opinion could materially change that unequal bargaining position. However, there remains a concern that, even with greater disclosure, fans will have little input or rights in such disputes. Notably, the court acknowledged that such binding language is enforceable. The only problem was that “factors exist in this case that make the arbitration provision difficult or onerous to find or obtain at the time of using the ticket, such that we cannot fairly say that the plaintiff was aware of what she was agreeing to.” Legislatures could change that unequal bargaining position with great consumer protection provisions on such lawsuits.
For now, however, this is a victory for fans who are too often treated as MLB’s “lovable losers.”
Here is the opinion: Zuniga v. MLB
Kudos to Olga Jablonski for the referral of the case.