Column: Friend bought you a ticket to the big game? You still have to arbitrate, says US appeals court
The opinions expressed here are those of the author, a columnist for Reuters.
By Alison Frankel
Oct 31 (Reuters) -Remember the brouhaha last summer when Disney tried to force a widower out of court and into arbitration for a wrongful death claim against a restaurant that allegedly served his wife food that triggered a fatal allergic reaction?
Disney DIS.N said the widower was required to arbitrate his claim against a restaurant in the Orlando Disney Springs shopping complex because, years earlier, when he signed up for a trial of streaming service Disney+, the contract included a mandatory arbitration provision.
Caught in a public relations nightmare, Disney ended up dropping the arbitration demand.
But it is hardly the only defendant to test the boundaries of an arbitration clause in a consumer contract.
Today I bring you the story of a generous Philadelphia Eagles fan named Brandon Gordon, who in December 2021 bought tickets for himself and eight other friends and relatives to attend a January 2022 football game between the Eagles and the Washington Commanders at the Commanders’ home field in Landover, Maryland.
The group traveled to the game together, and when they arrived at the stadium's entrance gate, Gordon showed attendants all nine tickets on his iPhone. His friends and relatives were waved through the gates without ever seeing the electronic tickets Gordon bought for them.
The Eagles won the game 20-16. The Gordon group wanted to congratulate the Philadelphia players for the narrow victory. Stadium officials allowed the group to wait for the players near the tunnel to the Eagles’ locker room. But as they leaned against a railing to high-five players headed into the tunnel, the railing gave way. Four of Gordon’s friends allegedly sustained injuries after falling several feet to the concrete floor below.
The friends filed a lawsuit in federal court in Greenbelt, Maryland, against the Commanders and stadium-related defendants, alleging that they suffered lingering physical and emotion injuries from the incident.
The defendants moved to force them into arbitration.
Their rationale? When Gordon bought the tickets online, he accepted the Washington Commanders’ terms of service, which included a mandatory arbitration provision. (Gordon, as I’ll explain, disputes that he accepted the Commanders’ terms of service, insisting that he was able to purchase the tickets without ever agreeing to mandatory arbitration.)
Under defendants’ theory, Gordon was acting as his friends’ agent when he bought their tickets – so his agreement to arbitrate claims bound them as well.
Gordon’s friends protested that they never agreed to arbitration. They pointed out that they never even saw the electronic tickets, let alone any terms and conditions attached to them. Nor, they argued, did they give Gordon authority to consent on their behalf to mandatory arbitration – noting, after all, that they had no idea it was even a consideration.
The trial court, U.S. District Judge Theodore Chuang, agreed last year that under Maryland precedent, Gordon was not acting as his friends’ agent. There was no clear indication, Chuang said, that the plaintiffs authorized Gordon to act on their behalf, so even if the defendants could show that Gordon had accepted the Commanders’ terms of service, including the mandatory arbitration provision, that agreement did not bind his allegedly injured friends.
But on Tuesday, the 4th U.S. Circuit Court of Appeals held otherwise.
Judges Paul Niemeyer, Roger Gregory and Toby Heytens sided with the Commanders’ lawyers from Skadden, Arps, Slate, Meagher & Flom and Hollingsworth LLP, ruling that under the doctrine of apparent authority, if Gordon agreed to mandatory arbitration in the course of buying the tickets, his agreement would bind his friends regardless of whether they knew about any arbitration provision. (The appeals court acknowledged the dispute over whether Gordon in fact agreed to the Commanders’ mandatory arbitration provision and remanded the case for the trial judge to figure that out.)
“Even though Gordon was the purchaser of the tickets, it was reasonable for the Washington football team to assume that in purchasing nine tickets, Gordon did so both for himself and for the plaintiffs, as indicated by the purchase of multiple tickets and the plaintiffs' entry into the stadium by means of those tickets,” wrote Niemeyer for the 4th Circuit panel. “The plaintiffs used the tickets on Gordon's iPhone to enter the stadium, thereby manifesting their acceptance that Gordon had acted and was acting on their behalf.”
There is simply no requirement in Maryland law, the appeals court said, that Gordon’s friends had to know about and assent to arbitration before being bound to any agreement Gordon entered when he bought the tickets.
Neither the Commanders nor their counsel from Skadden and Hollingsworth responded to my query.
Plaintiffs lawyer Robert Sokolove of Weir Greenblatt Pierce told me in a phone interview on Thursday that there was no need for the 4th Circuit to reach the question of Gordon’s authority to consent to arbitration on behalf of his friends.
Sokolove said the evidence is clear that when Gordon bought the tickets through a website called Tick Picks, he used his Ticketmaster account and downloaded the electronic tickets to his iPhone wallet without ever clicking on the Commanders’ terms of service. According to Sokolove, Gordon was presented with an option to click on the team's service terms but was not required to do so before downloading the tickets.
Those facts, Sokolove told me, should have decided the case without the 4th Circuit delving into questions about Gordon’s authority to consent to arbitration on behalf of friends who knew nothing about the provision.
Sokolove said he’s confident the trial court will eventually agree that Gordon did not consent to mandatory arbitration so that his friends can proceed in court. But meanwhile, he said, this decision “will become a litmus test for hundreds of millions of tickets purchased on the internet.”
So next time a friend or relative buys you a ticket to a concert or sports event, don’t forget to read the fine print. You may just have to arbitrate if something goes wrong.
Read more:
Disney agrees to have Florida wrongful death lawsuit decided in court
Disney's bid to arbitrate husband's wrongful death suit has a chance
(Reporting By Alison Frankel)
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