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Volokh Conspiracy

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.