Strikeout at The Boilerplate: Court Rules For Fan Contesting Fine Print On Baseball Ticket

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.

 

40 thoughts on “Strikeout at The Boilerplate: Court Rules For Fan Contesting Fine Print On Baseball Ticket”

  1. I have NEVER read the back of a ticket, BUT I also understand that I am going to a baseball game where my mommy isn’t gonna shield me from errant foul balls and I should either A) Pay Attention or B) if you are there to look at your phone and chit chat with your friends maybe don’t sit where your face catches baseballs. BUT I am a normal white dude that assumes responsibility for myself and don’t look to blame other people for me being an idiot.

  2. I would at least fix the headline from the linked 2016 article, “Chicago Cubs winning the WORLD SERVES”?

  3. Anybody with a brain knows that when you go to a ballgame you have to pay attention to the game. So now they have netting all down the foul lines. Leftist snowflakes ruin everything.

  4. This happens so infrequently that it is not unreasonable for the Chicago Cubs Baseball Team to insure for it. Price the insurance into the ticket price. Problem solved.

    1. We took care of this in 2020. No one in stands, no one gets hurt. Once again lawyers win.

  5. Long before your birth I was born across from Wrigley field — 1945.
    Ive been mourning the Cubs for more years than I count..
    By biggest Chicago disappointment did not include the Cubs but with Bushman.
    My mother took me to what was supposed to be Bushman’s birthday.
    The zoo decided not to open Bushman’s porch.
    Ah, sweet mysteries of life!

    Regards from Ficulle TR Italy.

  6. Comtracts of adhesion raise troubling legal questions that are particularly dire when they are forced on someone who is dealing with a monopoly that is functioning as a de facto utility.

    Might we someday see all those Facebook and Google and Twitter ‘agreements ‘ discovered to be unenforceable?

  7. Notice how cleverly this was done:

    https://www.sanjoseinside.com/news/hate-crime-charged-in-attack-on-south-bay-mcdonalds-worker

    This entire article fails to mention that the hate-crime accused perpetrator here is black.

    Deeper in the article on race-based crimes in general they do manage to say the perp in Atlanta is white. They do that although even the LA Times and DOJ [both anxious to find race crimes] have admitted that that atrocity was not because of race.

    Thus they ‘report’ but sustain the false narrative that whites are committing the greater number of these offenses. They are not.

    1. Not to mention this doozy from the story you linked to:

      “A disproportionate number of anti-Asian attacks have targeted women, a trend brought into stark relief when a white gunman killed eight people in a shooting rampage that targeted massage parlors largely staffed by Asian immigrants.”

      Of course two white people and a Korean were also killed and the police, through the gunman’s on admissions, made it clear Asians were not targeting in this attack, only sex workers.

  8. I imagine the ‘Biden’ administration will hit us with a lot of administrative law attacks, drawing on executive orders and, importantly, by fiat or ukase from agencies. Hard and expensive to fight even when clearly wrong.

  9. Biden’s ‘press conference’ is about what you would expect from a monitored senior who might wander away and not come back.

    https://twitter.com/CalebJHull/status/1375142800124182540

    This type of thing happened during the reign of Henry VI. He periodically went blank for extended periods of time during which rival powers contended for power.

    The result was the War of the Roses which, despite its flowery name, was one of the most vicious wars fought in England. The Battle of Towton may have killed more in one day than died on the first day of the Battle of the Somme, an infamous bloodbath.

    Despite the too-often repeated slogan, I don’t expect history to repeat itself, even if it has been forgotten, but the thirst for power that led to the War of the Roses still exists and will probably motivate the shadowy powers that reside in society today. What they will do, even who they are, is unanswered. But one thing that is likely is that the rest of us, and perhaps the rest of the world, will pay for it.

    We have a Henry VI in the Oval Office. The country is in trouble. Maybe the world.

    1. My thought after listening to about 20 minutes of that train wreck, was that Biden may be less affected by dementia, than I suspected.

      He may just be LESS SMART than I had believed. He did not sound smart today. He was full of blame for Trump about the border, for example, which is preposterous. Clearly his comments and policies have triggered the border crisis and it comes in stark contrast to Trump’s modest success in discouraging border crossings.

      His brief remarks about the DPRK firing missiles were laughable. They fired missles and he said it was a violation of the UN resolution such and such. They said what you gonna do. He said if they escalate we’ll do something. What? They already did escalate. Then he said diplomacy. Like what? A diplomacy conditioned on denuclearization he said. Well, in other words, NO DIPLOMACY because the Kim regime is not so foolish as to fall for that. Look where cooperating with NATO got Qadaffi!

      Again, Trump did not do a lot in respect of DPRK, but at least he did not make it worse by engaging in some face to face conversations, inconsequential as they may have been, they at least did not destabilize the situation more. Of course he received no praise from the press for that and surely some of his obsessive haters will show up to tell us why a lack of war on the Korean peninsula for 4 years was actually not an accomplishment. Any takers?

      Most of all, it occurs to me that Joe’s lack of mental acuity for whatever reason, is perhaps exactly why the “powers that be” showered him with so much money and put the thumb on the scales such as they did to help him win. I am sure the billionaires are pleased that this is the front-man at this time, he is clearly far dimmer than both Obama and Clinton, and will probably be far more compliant with their schemes. I hope the Biden voters are happy with this.

      I sure will pray for the President, he needs it, and we do too.

      Sal Sar

      1. Clearly Biden is not in command of the presidency. He was operating off a briefing binder full of scripted answers and talking points! Holy crap! He is the PRESIDENT! Why does he need a briefing book of scripted answers?!!! Six months, tops, before they install Kamala to the top job. What a sorry excuse for a “Press conference” that was. What a disgrace those questions were. What a waste of space those reporters are. We all need to petition PBS to fire their progressive activist posing as a reporter: Yamiche Alcindor is one of the worst in the business. But you know PBS cannot and will not fire her, or even reprimand her, because she will sue, you know, because being a POC and all. Without a free and fair press, our country is in massive trouble.

      2. “He may just be LESS SMART than I had believed. He did not sound smart today.”

        Joe Biden has NEVER been smart. He is a well known dum dum. Today, we saw a senile man in obvious decline, and obviously not the man in charge of anything. Today we saw a man stand up there and LIE as if he believes his own lies. Today we saw a corrupt and utterly dishonest press corps sit there politely and quietly take in Uncle Joe’s story hour. A complete disgrace to the profession of “journalism”…..

        1. Let’s read about credit card Joe Biden from Delaware, the long time darling of consumer finance

          https://www.motherjones.com/politics/2019/11/biden-bankruptcy-president/

          “In early 1973, as Joe Biden was settling into his new job in Washington, DC, Ralph Nader published a deconstruction of what made the freshman Democratic senator’s state of Delaware, the most anodyne of states, so exceptional. The answer, The Company State explained, had to do with the unique relationship between government and commerce: Delaware was less a democracy than a fiefdom, contorting its laws to meet the demands of its corporate lords.

          Preeminent among them was the chemical giant DuPont. Nader took readers to Rodney Square, in the heart of Wilmington. There was the ritzy Hotel du Pont, housed in a building owned by DuPont, next to a theater built by DuPont, connected to a bank controlled by the du Pont family, surrounded by law offices and brokerages—all affiliated in some way with what was known simply as “The Company.” The du Ponts owned the state’s two largest newspapers and employed a tenth of the state legislature. The governor was a former executive. The state’s member of Congress for most of the 1970s was Pierre Samuel du Pont IV.

          “General Motors could buy Delaware,” Nader quipped, “if DuPont were willing to sell it.”

          Over the next two decades, as Biden rose through the ranks of the Democratic Party, the state’s center of gravity began to shift from the world of chemicals to the big business of other people’s business—banking, accounting, law, and telemarketing. But if the industry had changed, the ethos remained: Delaware was the Company State. It owed its prosperity to its willingness to give corporations what they wanted….”

        2. Look closely at Joe Biden’s eyes, they tell you he is not ‘all there’…..his eyes are always looking different each time we get a glimpse of him. Often squinty like slits, then like today, wide open wide — like he’s a confused deer in headlights….or on some performance enhancing drugs to keep him revved up to get through his first highly controlled and micro-managed press conference (if you could even call it a “press conference”)

          Here are questions a real reporter would ask about Biden’s health (per Sharyl Attkisson):

          What happened when you fell up the stairs the other day boarding Air Force One? Did a doctor examine you afterwards? What did he find? Do you regret criticizing President Trump’s physical condition after he shuffled down a ramp at West Point last year?

          Would you submit to the same mental acuity test that President Trump took, and release the results?

          Since you’ve been president, how many times and for what reasons have you been checked by a medical professional? What were the results?

          In the past year have you had any medical treatments that have not been disclosed to the public?

          Will you release your medical records in full?

      1. Seems possible. Makes one wonder if China was one of the main factors in getting Biden ‘elected’. Maybe its more than a coup, perhaps an invasion.

      2. China is Doomed

        1. “China Flu, 2020” was deliberately released by China, from its Wuhan Institute of Virology, to reduce its population of elderly people as China is doomed by its one-child policy from the past. China will move further in the future to reduce its elderly population. China’s population is terminally out of balance by its overabundance of old people – China has no workforce or Social Security and Medicare to address this segment of the population.

        2. “China Flu, 2020” was released 9 months prior to the U.S. presidential election to support the malleable Joe Biden and remove President Donald J. Trump, China’s adversary and nemesis.
        _____________________________________________________________________________________________________________________________________________________

        “The end [justifies] the means…”

        – Leon Trotsky
        ____________

        The Chinese Communist Party is not hindered by law or morality; by brutality and violence.

        They are merely tools; means to an end.

      3. Biden is Lying

        “The Biden press conference was a train wreck and disgrace on the border. He repeated the Alejandro Mayorkas line that Trump was just pushing unaccompanied minors back into Mexico, when the truth is that they were flown home and handed over to social-service agencies in their countries. He then went even further, referring to Trump letting minors starve and die. He maintained that Trump hadn’t diminished the flow at the border, which is completely false. He gave no indication of any serious plan for us to do a better job of policing our own border, instead emphasizing building more shelters to house the migrants who are coming in record numbers. And he missed the point when a reporter asked a question about a small boy from Central America whose mother told the reporter she had sent him because she believed that Biden would let him into the United States. This performance would be roasted from beginning to end by fact-checkers — if they had any integrity.”

        https://www.nationalreview.com/corner/biden-is-lying/

      1. That’s another one, but at least they had the Regency to handle things. Henry VI was much worse since no obvious person or agency could act with unquestioned authority.

    2. Knowing the election was stolen, the patriotic military in Myanmar came to the same realization, imposed martial law and announced fair, honest and rational elections after one year.

      Too bad Mike “The Traitor” Pence didn’t have the same epiphany and take maximal advantage of the occult, esoteric passages of the Constitution on January 6th to “Save the Republic.”

      I can’t wait to see the expression on Mike Pence’s face when the communists show up to close his church.

      All hail the communist dictatorship!

  10. Many fans don’t like nets, because they can obscure the view. But I know of no other means to reduce the risk of injury. If MLB is going to get sued, then nets will go up. The only way to get an unobstructed view would be either on TV, or from the nosebleed seats with binoculars.

    Even if you keep your eye on the ball at all times, this is Major League. Those balls come in hot and you’d have to have similar reflexes.

  11. The plaintiff is not home free. The Cubs still have the defense that when she went into the ballpark she voluntarily assumed the (obvious) risk of getting hit by a batted ball. Voluntary assumption of the risk (VAR) seems a viable defense – although getting hit when standing at a concession stand might not be a reasonable expectation. Anyway, the plaintiff has not won the lawsuit yet.

    1. the procedural posture matters. assumption of the risk is an element of contributory negligence that is weighed by the jury

      contractual arguments such as coming with the boilerplate in question, are interposed at summary judgment to end the case long before it goes to jury. they are worth a lot of money to defendants.

      assumption of the risk not so much

      Sal Sar

  12. Players get paid way too much. Tickets a ND food are too expensive. Give up you season tickets and never buy one again. Baseball went to hell in the handbasket.

    1. So, what are the choices? Post large signs at the entrance warning of the risks of sitting in the stands, or, worse, having each fan sign a declaration of informed consent to the risks assumed in exchange for entry to the stadium?

  13. MLB should buy it insurance for this. It should be cheap since the odds of it happening are so low given the pool of participants at the games.

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