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Court Throws Out Season Ticket Holder's Lawsuit Over Football Anthem Protests

A creative legal theory, roundly rejected.

From Dragna v. New Orleans Louisiana Saints, LLC, decided in October by the Louisiana Court of Appeals, but just noted on the Westlaw Bulletin Saturday:

On December 11, 2017, plaintiff/respondent, Lee Dragna, filed this lawsuit against the Saints, seeking rescission of his season ticket sale and other nonpecuniary damages. He contends that at the September 17, 2017 home game between the Saints and the New England Patriots, some Saints players, as a "protest," refused to take the field until after the National Anthem was played.

Mr. Dragna asserts that when these players entered the field after the National Anthem, they passed directly in front of his seats and many fans "booed" and "cursed" at the Saints players. According to Mr. Dragna, he would not have purchased his season tickets if he had known that Saints players would use their games as a platform for protests, and he requested rescission of the sale. Mr. Dragna also pleaded that he purchased the tickets for entertainment and is entitled to non-pecuniary damages for those losses.

On January 19, 2018, Mr. Dragna filed a supplemental and amending petition, adding claims of intentional infliction of emotional distress, failure to warn of the potential protests, and violation of his right as a member of a captive audience to be protected from unwanted speech in the form of protests.

The Saints moved to dismiss, but the trial court concluded "that Mr. Dragna has sufficiently 'listed a cause of action under intentional infliction of emotional distress, negligence, and a Captive Audience Doctrine.'" The court of appeals reversed, rejecting all the claims:

In order to recover for intentional infliction of emotional distress, a plaintiff must show: 1) that the conduct of the defendant was extreme and outrageous; 2) that the emotional distress suffered by the plaintiff was severe; and 3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.... [BUt a]ccepting the alleged facts as true, the facts alleged do not satisfy the required elements of this tort.

Further, the facts pleaded in the petitions do not state a valid cause of action for negligence or "failure to warn," or a violation of the captive audience doctrine. Mr. Dragna's claims, as stated in his petitions, are simply not actionable....

Sounds quite right to me.

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  • Brett Bellmore||

    I guess I can understand his, "I paid to watch a game, not a protest." perspective. The problem is that he also got to watch a game.

  • James Pollock||

    He contracted for a seat to watch 8 games. Partway through the season, he became aware that he would not be able to enjoy the remaining games. That seems like a valid claim to break the contract due to frustration of purpose. Then he got greedy. (Note: By "valid claim" I mean enough to go to trial on. I don't think it was enough to actually win the case.)

    The lawyer who filed the amended complaint should face bar discipline for taking money to file the amended case, unless they can show evidence that they counseled strongly against it.

  • E Blackadder||

    Do not hold your breath on attorney sanctions, sir.

  • James Pollock||

    My opinion of what SHOULD happen is not based on my expectation as to what WILL happen.

  • David Nieporent||

    He contracted for a seat to watch 8 games. Partway through the season, he became aware that he would not be able to enjoy the remaining games. That seems like a valid claim to break the contract due to frustration of purpose.

    No more than the team playing unexpectedly badly would give rise to a valid such claim. (Indeed, a lot less so.) The complaint was frivolous from the get go; I assume it was just bog-standard unethical ambulance chasing, as opposed to a political stunt, but I'm open to the latter possibility.

  • James Pollock||

    "No more than the team playing unexpectedly badly would give rise to a valid such claim."

    A person buying football tickets can be expected to know that the team might not be very good. But they wouldn't necessarily know that protests might so totally upset the poor fellow that he can't even stand to sit (ha-ha) in the seat he's paid for.

    Whether or not THIS protest, or the specter of additional protests, was so upsetting to THIS plaintiff that he would be unable to use the seats... that's a question of fact. Questions of fact are answered by the jury.

  • David Nieporent||

    But they wouldn't necessarily know that protests might so totally upset the poor fellow that he can't even stand to sit (ha-ha) in the seat he's paid for.

    So what? What legal cause of action do you think that states?

  • bernard11||

    His perspective is nonsense.

    He was "emotionally distressed?" I guess he's a snowflake who needs a safe space where he doesn't have to see or hear anything he might not like.

    "his right as a member of a captive audience to be protected from unwanted speech in the form of protests."

    He's at a damn football game. Guess what, people yell, shout al sorts of things, have conversations that he might overhear, etc.

  • James Pollock||

    " I guess he's a snowflake who needs a safe space where he doesn't have to see or hear anything he might not like"

    Initially, at least, his argument was that he shouldn't have to pay for it.
    In the amended complaint, where he's claiming he was damaged because some of the players stayed in the locker room through the national anthem, is worthy of ridicule.

    "He's at a damn football game. Guess what, people yell, shout al sorts of things"

    These are things that a person buying seats at a football game would be expected to know about in advance. But how was he supposed to know that (gasp) some players might not be clearly visible during the playing of the national anthem? You presume too much, sir!

  • Rossami||

    Good that the appeals court got this right. But how do trial court judges get to keep their jobs after such obviously wrong decisions. I get that the very point of an appeals court is to review for and correct mistakes but it still seems like our system fails to hold trial judges accountable.

  • James Pollock||

    "how do trial court judges get to keep their jobs after such obviously wrong decisions."

    There is a fairly strong presumption that filed civil cases should get to trial, even if the claim is ludicrous, because deciding that a claim is stupid is part of why we have trial by jury. The only time a civil claim should be dismissed before any proceedings is when, even if everything the plaintiff says is true, there is nothing for a court to do. Here, as I describe above, there was a judiciable claim. I don't think it was a winner, but it was, at least, a claim that has law in place that would lead to a disposition. IIED was a silly claim to raise, and deserved to get tossed. Rescission of the contract due to frustration of purpose, if the facts supported the claim enough to convince a jury, has a suitable legal resolution.

  • Voize of Reazon||

    Well, the trial court didn't get it all wrong. They threw out the original claim, that he was due a refund because he didn't enjoy the product he bought as much as he expected.

  • James Pollock||

    The original claim seems to have been that he shouldn't have to pay for seats he couldn't use for their intended purpose--entertainment-- for the unused part of his season ticket. That claim should have been allowed to go to trial. The IIED addon should have been rejected. The trial court got both of those wrong.

  • David Nieporent||

    The "intended purpose" was to see a football game, not to be happy about it.

  • James Pollock||

    I didn't say it was enough to win his case, I said it was enough to get to trial.

  • apedad||

    At least the Saints didn't countersue the guy, like Dan Snyder of the Redskins who sued a grandma over season tickets (spaces added): https://deadspin.com/ 5352121/the-washington-redskins -will-sue-your- grandmother-into-bankruptcy

  • Eddy||

    It's like my suit over The Neverending Story...blatant false advertising.

  • James Pollock||

    They didn't tell you you'd get to hear the whole story. You might have a case if they'd advertised "the NeverEnding Movie", but they didn't.

    My case against Dragnet is on MUCH firmer ground. They promised me 8 million naked stories, and there isn't even one in the whole TV series!

  • bernard11||

    Wrong defendant, James.

    The show you are referring to was "The Naked City," not "Dragnet."

  • James Pollock||

    What? Next you'll be telling me that Tom Hanks wasn't in it.

  • Voize of Reazon||

    Eddy, if you're going to use that one you should be posting as Lionel Hutz.

  • Smartacus||

    Not sure why he didn't try to recover for breach of contract. The league had rules against demonstrations and that was an implied term of his contract. Maybe because the damages were limited to the price of his tickets?

  • Brett Bellmore||

    I'm guessing that's it.

  • James Pollock||

    "The league had rules against demonstrations and that was an implied term of his contract."

    The league doesn't have rules against demonstrations, and didn't except for a brief period when demonstrations during the national anthem were limited to... staying in the locker room. He'd have a case for breach of contract of the Saints players had protested by refusing to play football. That isn't what happened. He had a case for frustration of purpose (I still don't think that's a winning argument... if it had been, then any football fan dissatisfied with the play of the team put forward by management would be able to sue to get out of a season-ticket commitment, or any fan of a team that had a player out with injury.)

    They don't even have to put out competent football players (take note, Cleveland fans) as evidenced by the "replacement players" strike-breaker teams. I went to a university whose football teams endured 30 consecutive losing seasons, and they still charged for seats.

  • Krayt||

    Making you angry is a part of entertainment.

    Pro wrestling is loaded with all manner of outrageous behavior designed to hack you off.

  • James Pollock||

    "Making you angry is a part of entertainment."

    For some people, maybe.

  • Brett Bellmore||

    No, actually they do and did have rules against demonstrations. It's in the the NFL Game Operations Manual.

    There's been considerable obfuscation on this point. The rule isn't in "the" NFL rule book, which dictates what goes on during the game. But it's in "an" NFL rule book, the one having to do with everything outside actual game play:

    " The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem.

    During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking. The home team should ensure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses."

    The argument has been made that that "may" means it isn't really a rule. But, yeah, it is. Just not a uniformly enforced rule.

  • James Pollock||

    Ah. So THAT'S why the Chiefs cut Mr. Hunt.

  • BaronGouldianFinch||

    Interestingly the use of "should" versus "must" there implies that players will be punished for failing to be on the field and teams presumably could be punished for failure to play the national anthem, but that standing (versus kneeling) isn't actually required. They "should" do it but are not being required to do so. It could be argued should means they have a general obligation to comply with standing but not an absolute obligation, whereas they have an absolute obligation to be present on the sidelines, so a quiet protest by kneeling is more in compliance than staying in the locker room (before the league presumably amended the rules to allow for staying in the locker room).

  • James Pollock||

    " It could be argued should means they have a general obligation to comply with standing but not an absolute obligation"

    Some members of the team have may have injuries that preclude them from readily changing from sitting to standing posture. So the rules have to take that into account.

  • mse326||

    I disagree with your last part. What they "should" do during the anthem is a suggestion. The language there is not the only reason. Look at the penalty sentence. It specifically only penalizes "failure to be on the field by the start of the National Anthem..." So the on field demonstrations were perfectly within the rules.

    Not coming out until after does violate the rules, but "may" is a discretionary phrase that allows the league to determine case by case. (if this is all you were talking about than I apologize for the opening paragraph)

    This rule doesn't create and implied contract with the ticket holders (I know you didn't say they did), just as violation of other league rules (on field or off) doesn't. They pay to witness a football game. As long as they get that the contract has been fulfilled. So it is irrelevant as to this lawsuit.

  • James Pollock||

    It's also the case that the NFL does not publish this rulebook, and, in fact, hurries to correct people who call it a "rulebook" or a set of "rules".

    "They pay to witness a football game. As long as they get that the contract has been fulfilled. So it is irrelevant as to this lawsuit."

    It isn't, because he contracted to pay for 8 football games, and then wanted to not pay for games he didn't intend to go to. So... he didn't witness all the football games.

    (Notice what's not in the coverage? What happened to the tickets he didn't use? Did he use them, after all? Did he just not go? Did he resell them to someone who wanted to see the Saints play, and didn't care that some of them stayed in the locker room during the national anthem? It makes a difference, because if it's the last one, what are his damages?

  • Voize of Reazon||

    This is how professional sports ends, by entitling fans to refunds whenever a rule is broken.

  • Stephen Lathrop||

    Intentional infliction of emotional distress? He should have sued them for selling him a ticket to a Patriots game.

  • James Pollock||

    Because the Cheatriots don't follow the rules?

  • Lester224||

    Snowflake.

  • Longtobefree||

    The NFL still in business?

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