Académique Documents
Professionnel Documents
Culture Documents
The NFL Defendants—the National Football League (“NFL”), NFL Properties LLC
(“NFL Properties”), and Roger Goodell as Commissioner of the NFL (“the Commissioner”;
collectively with the NFL and NFL Properties, “the NFL Defendants”)—respectfully provide this
brief to address the issues identified in this Court’s January 26, 2019 Order (R. Doc. 4), jurisdiction
under the Class Action Fairness Act (“CAFA”), Plaintiffs’ standing to bring this action, and
I. Introduction
The NFL is a League of 32 professional football teams, each with its own nation of fiercely
loyal fans. NFL games are played according to a uniform set of playing rules, agreed to and
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 2 of 22
established by a vote of all of the NFL’s teams. As part of those rules,1 the teams have agreed that
the decision to call a penalty on any given play in any game is up to the officials on the field, with
any dispute being resolved by the Referee as head of the officiating crew. NFL Rule 15, § 1, Arts.
3, 5. And, because the officials on the field are humans, like the players and coaches, errors will
happen. The NFL parties do not dispute that they have previously advised the Saints, including the
club’s head coach, that one or more penalties—for pass interference or illegal helmet-to-helmet
contact—were mistakenly not called late in the NFC Championship Game, and that the NFL would
like its officials on the field to make these calls. This was acknowledged immediately after the
game to the coach of the New Orleans Saints by NFL Senior Vice President of Officiating Al
Riveron. However, overruling the Referee on the field and directing that a penalty be called is not
within the Commissioner’s discretion under NFL Rules 15, 17, or any rule. Specifically, Rule 15,
§ 1, Article 3 provides that “[t]he Referee is to have general oversight and control of the game[,]”
and that “[t]he Referee’s decisions upon all matters not specifically placed under the jurisdiction
of other officials by rule are final.”2 In light of this Referee finality in Rule 15, then Rule 17 is
Accordingly, no ticketholders or fans have a legally cognizable right to ask a Court to order the
1
2018 Official Playing Rules of the National Football League (“NFL Rules”), available at
https://operations.nfl.com/media/3277/2018-nfl-rulebook_final-version.pdf and attached hereto as
Exh. A.
2
See Exh. A, at 62 (emphasis added).
3
NFL Rule 17, § 2, Art. 2 (Exh. A, at 67) (“The Commissioner will not apply authority in cases
of complaints by clubs concerning judgmental errors or routine errors of omission by game
officials. Games involving such complaints will continue to stand as completed.”) (emphasis
added).
–2–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 3 of 22
2019 will mark the NFL’s centennial season. Throughout that time, one constant is that the
results of a game are conclusive and not subject to protest or challenge. To our knowledge, no
game has ever been replayed. This has been true despite war, depression, natural disasters, civil
disorder, terrorism, or pandemic. And it has certainly been true notwithstanding errors in the
enforcement of playing rules or even the deliberate evasion of those rules. Plaintiffs here seek an
extraordinary order from this Court requiring the Commissioner to exercise his discretionary
authority under NFL Rule 17, a rule providing the Commissioner the discretion to take corrective
action if a “calamity” occurs that is so “extraordinarily unfair or outside the accepted tactics
encountered in professional football,” to overrule the final decision of the Referee on the field and
order the first replaying of a game in 100 years (as well as damages they claim arise from the
outcome of an athletic event). But even if Rule 17 gave the Commissioner such discretionary
power, which it does not, a long line of authority cautions against the courts becoming a forum to
litigate such decision-making. While the putative class of Plaintiff ticketholders and fans’
disappointment and even anger over the outcome of last week’s game is entirely understandable,
it does not present a legal claim that can be remedied by this Court. The Plaintiffs’ Petition should
Courts, including this court, have made clear time and again that, regardless of the level of
fans’ dissatisfaction in the outcome of a game, who played in the game, or how the game is
conducted, there is no room for the courts to resolve fans’ desire for a different outcome of an
athletic event. See, e.g., Mancina v. Goodell, 2013 WL 393041, *2-3 (E.D. La. 1/30/2013)
(Berrigan, J.) (“The plaintiff has not provided legal support for the argument that a sport fan has
rights greater than those of a spectator, regardless of how ardent his team devotion may be.”).
The Commissioner’s discretion under NFL Rule 17 to take “corrective measures,” even to direct
–3–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 4 of 22
The Petition brought by Plaintiffs Tommy Badeaux and Candis Lambert “individually and
on behalf of New Orleans Saints Season Ticket Holders, New Orleans Saints National Fan Base
a/k/a The Who Dat Nation and any party with interest that has been affected by the outcome,”4
asks this Court to mandate the extraordinary step of ordering a replay of the NFC Championship
Game, and for damages to all putative class member Saints fans. The consequences of ordering a
replay of the NFC Championship Game or any portion of the game cannot be overstated. See
Mayer v. Belichick, 605 F.3d 223, 236-37 (3d Cir. 2010) (“At the very least, a ruling in favor of
Mayer could lead to other disappointed fans filing lawsuits because of ‘a blown call’ that
apparently caused their team to lose or any number of allegedly improper acts committed by teams,
coaches, players, referees and umpires, and others. This Court refuses to countenance a course of
action that would only further burden already limited judicial resources and force professional
sports organizations and related individuals to expend money, time, and resources to defend
against such litigation.”). The Plaintiffs can point to no case that has held to the contrary, and they
The petition filed in Civil District Court for the Parish of Orleans meets all of the
requirements for this Court’s CAFA jurisdiction. See 28 U.S.C. § 1332(d). The two named
plaintiffs explicitly seek to bring their claims in a representative capacity on behalf of classes of
ticketholders, fans, and others. They expressly seek monetary damages for all NFC Championship
Game ticketholders, which indisputably amounts to more than $16 million put in controversy by
the Petition; in addition to mandamus relief the value of which would independently eclipse $5
4
Petition, at 1, 4 (R. Doc. 1-1, at 2, 5).
–4–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 5 of 22
million; plus even further unquantified categories of damages, all of which together make clear
that the sum or value of the matter put in controversy by Plaintiffs’ Petition is far greater than
CAFA’s amount-in-controversy threshold. And there similarly should be no dispute that CAFA’s
requirement for minimal diversity of citizenship is met. Having jurisdiction over Plaintiffs’ claims,
and as further set forth below, this Court should respectfully find that Plaintiffs lack standing to
bring any of their claims, and that, even if they had standing to bring such claims, they have no
This Court has directed the NFL Defendants to “establish the Court’s jurisdiction under
the Class Action Fairness Act, including the individual amount in controversy requirement.”
CAFA provides a basis for federal courts’ original jurisdiction when a Plaintiffs’ suit is a “civil
action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of
interest and costs, and is a class action in which—(A) any member of a class of plaintiffs is a
citizen of a State different from any defendant[.]” 28 U.S.C. § 1332(d)(2). The initial pleading
filed by Plaintiffs in Civil District Court for the Parish of Orleans, State of Louisiana, and served
on the Commissioner on January 22, 2019, entitled “Petition for Writ of Mandamus” (herein, “the
First, the Petition unequivocally is a CAFA “class action.” See 28 U.S.C. § 1332(d)(1)(B)
(defining “class action” to mean “any civil action filed under rule 23 of the Federal Rules of Civil
Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought
action” subject to CAFA, courts do not look to the label applied to the action by a plaintiff but to
–5–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 6 of 22
the substance of what the plaintiffs seek to effect. See La. ex rel. Caldwell v. Allstate Ins. Co., 536
F.3d 418, 424 (5th Cir. 2008) (“It is true that the words ‘class action’ or ‘mass action’ do not appear
in Louisiana’s complaint. However, that does not end our inquiry. It is well-established that in
determining whether there is jurisdiction, federal courts look to the substance of the action and not
only at the labels that the parties may attach.”) (citing Grassi v. Ciba-Geigy, Ltd., 894 F.2d 181,
185 (5th Cir. 1990), abrogated on other grounds, Miss. Ex rel. Hood v. AU Optronics Corp., 571
U.S. 161, 176 (2014); see also Williams v. Employers Mut. Cas. Co., 845 F.3d 891, 899 (8th Cir.
2017) (holding that CAFA applied to a suit brought in a representative capacity even though the
complaint did not expressly reference a state’s class action statute but only a state’s substantive
statute that did not otherwise provide for suits in a representative capacity: “If we interpreted ‘any
civil action filed under Rule 23’ or a state-law analogue to refer only to cases that specifically
mention Rule 23 or a state-law analogue…, a plaintiff could avoid federal jurisdiction for a lawsuit
that resembles a class action in all respects simply by omitting from the complaint the name of the
In both the preamble paragraph to the Petition and in the Petition’s Prayer for Relief, as
well as in the Petition’s caption, Mr. Badeaux and Ms. Lambert allege that they are bringing the
action in a representative capacity, both “individually and on behalf of New Orleans Saints Season
Ticket Holders, New Orleans Saints National Fan Base a/k/a The Who Dat Nation and any party
with interest that has been affected by the outcome.”5 Additionally, when verifying the allegations
of the Petition in their sworn Verifications, Mr. Badeaux and Ms. Lambert verified the allegations
5
Petition, at 1, 4 (R. Doc. 1-1, at 2, 5) (emphasis added).
–6–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 7 of 22
of the “Petition for Writ of Mandamus and/or Class Action Damages.”6 On the face of the Petition,
therefore, it was Plaintiffs’ sworn intent to bring their claims as a class and in a representative
capacity. Mr. Badeaux and Ms. Lambert could only purport to bring their claims in a representative
capacity in Louisiana court, as reflected multiple times in the Petition and in their Verifications,
pursuant to the state analogue to Rule 23, Louisiana Code of Civil Procedure articles 591, et seq.
See, e.g., La. C.C.P. art. 592(A) (establishing as the only prerequisite to moving for certification
of a class the filing of an “initial pleading demanding relief on behalf of or against a class”)
(emphasis added). Neither the Louisiana mandamus statute nor any other statute applicable to the
claims pled by Plaintiffs provide an alternative path for bringing their claims in the representative
Unlike the complete diversity requirement for 28 U.S.C. § 1332(a), the diversity of
citizenship requirement in CAFA only requires that at least one Plaintiff be a citizen of a different
state from at least one Defendant. 28 U.S.C. § 1332(d)(2)(A); see also Hollinger v. Home State
Mut. Ins. Co., 654 F.3d 564, 569 (5th Cir. 2011). Additionally, for CAFA purposes only, the
citizenship of unincorporated associations will be deemed to be only those states where they have
their principal place of business and under whose laws they are organized. 28 U.S.C. §
1332(d)(10).
6
Petition Verifications (R. Doc. 1-1, at 7, 8) (emphasis added). No post-filing attempts by a
plaintiff to change the class-nature of their petition would be effective to alter CAFA jurisdiction.
See La. v. Am. Nat. Property Cas. Co., 746 F.3d 633, 639 (5th Cir. 2014) (“The statute defines class
action as any civil action filed under Rule 23 or a state class action statute. Thus, federal
jurisdiction under the statutory provision of CAFA is explicitly concerned with the status of an
action when filed—not how it subsequently evolves. And, it is undisputed that this action was filed
as a class action, consistent with the standards of the statute.”) (internal citations omitted; emphasis
in original).
–7–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 8 of 22
Here, there should be no dispute that named Plaintiffs Mr. Badeaux and Ms. Lambert are
citizens of the State of Louisiana. The NFL Defendants are not citizens of the State of Louisiana,
and minimal diversity is therefore satisfied. Defendant NFL Properties LLC is a Delaware Limited
Liability Company with its principal place of business in New York City.7 The NFL is an
Member Clubs, with its principal place of business in New York City, as well.8 The Commissioner
also is domiciled in and a citizen of New York. Accordingly, because the NFL Defendants are all
citizens of New York (and, additionally as to NFL Properties LLC, Delaware), while Mr. Badeaux
and Ms. Lambert are citizens of Louisiana, CAFA’s requirement of minimal diversity is met.
The final element for CAFA jurisdiction is that “the matter in controversy” alleged in the
Petition “exceeds the sum or value of $5,000,000[.]” 28 U.S.C. § 1332(d)(2). “The required
demonstration concerns what the plaintiff is claiming (and thus the amount in controversy between
the parties), not whether the plaintiff is likely to win or be awarded everything he seeks.” Robertson
v. Exxon Mobil Corp., 814 F.3d 236, 240 (5th Cir. 2015) (internal quotation marks omitted).
Where, as here, the case is removed from a state jurisdiction that does not require
the plaintiff to specifically plead the amount in controversy, the defendant may
satisfy this burden by demonstrating that it is ‘facially apparent’ from the petition
that the claims are above the jurisdictional amount. Under these circumstances, the
defendant need not prove the jurisdictional amount to a legal certainty. It is enough
that the defendant demonstrates that the plaintiff's claim ‘more likely than not’
meets the jurisdictional requirement.
7
See Citation for Service (R. Doc. 1-1, at 11) (identifying the address of the NFL’s “corporate
offices”).
8
See Clarett v. NFL, 306 F. Supp. 2d 379, 383 (S.D.N.Y. 2004).
–8–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 9 of 22
JMCB, LLC v. Bd. of Commerce & Indus., 293 F. Supp. 3d 580, 587 (M.D. La. 2017) (internal
citations and quotation marks omitted). “If it is not apparent from the face of the complaint, then
the court may rely on summary judgment type evidence to ascertain the amount in controversy.”
Royal Alice Properties, LLC v. Atkins, 2013 WL 4434951, *4 (E.D. La. 8/14/2013). “[T]hat the
removing party bears the burden of proving the amount in controversy does not mean that the
removing party cannot ask the court to make common-sense inferences about the amount put at
stake by the injuries the plaintiffs claim.” Robertson, 814 F.3d at 240.
Plaintiffs’ Verifications confirm that their Petition is, in part, a Petition “for Class Action
Damages.” Exh. A, at Verifications. The various categories of damages and remedies in Plaintiffs’
Petition each independently support that the CAFA amount-in-controversy threshold is exceeded.
The first category consists of Plaintiffs’ allegation of “monetary loss for ticket holders, who
purchased tickets with the presumption of integrity and fairness[.]” Petition, ¶ 8. As NFL Executive
Vice President and Chief Financial Officer Joseph Siclare attested, “The average ticket price to
attend the 2019 National Football Conference Championship Game in New Orleans, Louisiana,
on January 20, 2019, was approximately $230,” with more than 72,000 ticketholders attending the
game.9 Accordingly, just this one category of damages alleged on the face of the Petition is more
than $16.5 million, more than three times the CAFA threshold. The Court need look no further to
compensable injuries they claim to have suffered: “[p]ast, present and future mental anguish and
emotional trauma”; “[p]ast, present and future loss of faith in the National Football League”;
“[p]ast, [p]resent and future loss of enjoyment of life”; “[p]resent and future loss of entertainment”;
9
Affidavit of Joseph Siclare (Jan. 25, 2019), at ¶ 2 (R. Doc. 1-2, at 3).
–9–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 10 of 22
“[d]istrust of the game which has become the National pastime”; and “[o]ther damages itemized
at the trial of this matter.” Petition, ¶ 11(a)-(g). While the class of “New Orleans Saints National
Fan Base a/k/a The Who Dat Nation” may be difficult to ascertain, just one change.org petition
promoting exactly the same relief sought in Plaintiffs’ lawsuit—a common-sense barometer of
how many people may be in the “Who Dat Nation,” at least as to this particular issue—contained
760,569 signatures.10 If that number is indicative of the “Who Dat Nation” class, then the six
categories of damages would need to only average $6.57 per person to reach CAFA’s $5 million
threshold.11
Independently, the value of the mandamus relief sought by Plaintiffs, the rescheduling of
the NFC Championship Game or some portion thereof,12 is well in excess of CAFA’s $5,000,000
threshold, based on the costs associated with organizing and re-playing all or a portion of the NFC
Championship Game and the delays this would necessarily cause in conducting Super Bowl LIII.
See Affidavit of Joseph Siclare, at ¶ 3; see also Royal Alice Properties, 2013 WL 4434951 at *4
(calculating the value of the requested mandamus relief for purposes of jurisdictional amount-in-
controversy); Hamp’s Constr., LLC v. Tag-Miss. Enters., LLC, 2009 WL 2356671, *2-3 (E.D. La.
7/27/2009) (valuing damages and requested injunctive relief separately for determining amount in
10
https://www.change.org/p/we-want-an-nfc-championship-rematch-sunday-jan-27-after-refs-
missed-call.
11
Admittedly, taking the Plaintiffs’ allegations and applying logic and common sense as directed
by Robertson devolves into something that feels absurd, but as noted above the required
demonstration concerns what the plaintiff is claiming (and thus the amount in controversy between
the parties), not whether the plaintiffs are likely to win or be awarded everything they seek.
12
Plaintiffs seek “a writ of mandamus be ordered by th[e] Court[,]” Petition at 4 (Prayer for Relief),
presumably to direct Mr. Goodell as Commissioner of the NFL to reverse the Game’s result or to
reschedule the Game either from its “‘beginning or from the point at which the extraordinary act
occurred.’” Petition, ¶ 4 (quoting NFL Rule 17, § 2, Art. 3).
–10–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 11 of 22
controversy); Cheek v. Horton, 2008 WL 3500369, *2 (E.D. La. 8/11/2008) (“According to the
Supreme Court, in cases seeking equitable relief, such as an accounting, it is well established that
the amount in controversy is measured by the value of the object of the litigation.”) (internal
quotation marks and citations omitted); Waters v. Ferrara Candy Co., 873 F.3d 633, 634 (8th Cir.
2017) (considering the value of “unspecified injunctive relief” in determining the amount in
controversy).13 Thus, entirely independent of the damages claims sought by Plaintiffs, the value of
the requested mandamus relief renders it facially apparent from the Petition that the total amount-
in-controversy exceeds CAFA’s $5,000,000 threshold. And when combined with all of the relief
III. Plaintiffs Have No Standing to Pursue Claims for Dissatisfaction with the Outcome
of a Football Game.
At its essence, this suit was filed because the Plaintiffs, fans and ticketholders of an athletic
event, disagree with the outcome of that game. It is well settled that this kind of dispute implicates
no legally cognizable rights. The Plaintiffs, therefore, lack Article III standing. See McConnell v.
Fed. Election Comm’n, 540 U.S. 93, 227-28 (2003), overruled on other grounds, Citizens United
v. Fed. Election Comm’n, 558 U.S. 310 (2010) (finding lack of Article III standing based on the
lack of a “legally cognizable right”); see also Gulf Restoration Network v. U.S. Army Corps of
13
Plaintiffs also seek the further catch-all category of “all general and equitable relief.” Petition,
Prayer for Relief.
14
Furthermore, Plaintiffs’ Petition does not fit within either of the exceptions to CAFA jurisdiction
at 28 U.S.C. §§ 1332(d)(3) or (4). Both of them require that a defendant be “a citizen of the State
in which the action was originally filed,” in addition to meeting other requirements. Under the
citizenship definition applicable under 28 U.S.C. § 1332(d)(10), none of the NFL Defendants are
in-state Defendants, so neither of these exceptions to CAFA will apply.
–11–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 12 of 22
This Court was recently called on to reaffirm this fundamental principle of law in another
controversy between fans and ticketholders of the New Orleans Saints on one hand and the NFL
and its Commissioner on the other, with regard to the 2012 “Bountygate” dispute. Regarding the
suspension of certain Saints personnel in the wake of an NFL investigation into payment of
“bounties” for deliberately causing injuries to opposing teams’ players, this Court ruled that Saints
season ticketholders did not have any legally cognizable rights to assert against the NFL and the
Commissioner arising from alleged “diminishment of ticket value, emotional damage and damage
to the ‘competitive quality’ of the Saints.” Mancina v. Goodell, 2013 WL 393041, *1 (E.D. La.
1/30/2013). Much as in this matter, a Plaintiff sought remedies against the NFL Defendants on
behalf of a class of Saints fans and ticketholders for disagreement with how the NFL and the
Commissioner administered the NFL Rules with regard to the Saints. The Mancina Court
recognized that a ticket to a Saints game only provided a limited set of rights:
This ticket only grants entry into the stadium and a spectator seat for the specified
NFL game. Admission may be refused or ticket holder ejected in the sole discretion
of the Saints and/or the venue manager, without refund if the ticket holder is
disorderly or fails to comply with these ticket terms or any security measures or is
engaging in illegal activity including, but not limited to, ticket scalping.
Id. at *2. The Court analyzed that “the only issue is whether the ticket provides any of the ‘rights’
upon which the plaintiff has sued,” and “adopt[ed] in full the reasoning of” the Third Circuit in
Mayer v. Belichick:
“Significantly, our ruling also does not leave [plaintiff] without any recourse.
Instead, fans could speak out against the [defendant] their coach, and the NFL itself.
In fact, they could even go so far as to refuse to purchase tickets or NFL-related
merchandise.... However, the one thing they cannot do is bring a legal action in a
court of law.”
–12–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 13 of 22
In Mayer, the Third Circuit affirmed the dismissal of a fan suit by the District of New
Jersey arising from a New York Jets fan’s claims that the surreptitious videotaping of opposing
teams’ signals by the New England Patriots and the alleged failures of the NFL to prevent or
adequately sanction that misconduct had breached New York Jets season ticketholders’
expectations of observing a fair game. 605 F.3d at 225. The court held that the plaintiff fans and
ticketholders, even if “victims” of unfairness, had not been deprived of any legally cognizable
right and therefore did not have standing, and held in terms that are directly applicable here that
[W]e do recognize that Mayer alleged that he was the victim, not of mere poor
performance by a team or its players, but of a team’s ongoing acts of dishonesty or
cheating in violation of the express rules of the game. Nevertheless, there are any
number of often complicated rules and standards applicable to a variety of sports,
including professional football. It appears uncontested that players often commit
intentional rule infractions in order to obtain an advantage over the course of the
game. For instance, a football player may purposefully commit pass interference
or a “delay of game.” Such infractions, if not called by the referees, may even
change the outcome of the game itself. …
15
The Mancina Court classified the ticketholders’ and the fans’ dilemma as “suffering,” but also
observed that the ticketholder had no more right than the ticketless fan, and that those ephemeral
rights were not actionable:
The Court has a more fundamental problem with the plaintiff’s assumption that his
bona fide mental suffering entitles him to a cause of action merely because he has
purchased a season ticket. First, as this Court has previously stated, even if the
process surrounding “Bountygate” was initially procedurally flawed, it resulted in
a revised discipline accepted by those involved based on the finding that “conduct
detrimental” to the game of football had occurred. See Vilma v. Goodell, 2013 WL
192436 (E.D. La. 2013). In addition, the only distinction between a ticket holder
who is a fan and a ticketless fan is the ticket holder’s right to entry and seating at
the game granted by the license. The Court rejects the notion that any mental
suffering resulting from the Saints’ last season is peculiar to a ticket holder because
he was able to purchase and utilize one of those prized season tickets. Rather, that
agony has been much more widely felt by the Who Dat Nation.
–13–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 14 of 22
At least in this specific context, it is not the role of judges and juries to be second-
guessing the decision taken by a professional sports league purportedly enforcing
its own rules. In fact, we generally lack the knowledge, experience, and tools in
which to engage in such an inquiry. For instance, there appear to be no real
standards or criteria that a legal decision-maker may use to determine when a
particular rule violation gives rise to an actionable claim or should instead be
accepted as a usual and expected part of the game. At the very least, a ruling in
favor of Mayer could lead to other disappointed fans filing lawsuits because of
“a blown call” that apparently caused their team to lose or any number of
allegedly improper acts committed by teams, coaches, players, referees and
umpires, and others. This Court refuses to countenance a course of action that
would only further burden already limited judicial resources and force professional
sports organizations and related individuals to expend money, time, and resources
to defend against such litigation. See, e.g., Bickett, 472 N.Y.S.2d 245, 122 Misc.2d
at 883 (“Buffalo News sports editor, Larry Felser, in his column of May 30, 1983
warned of the dire consequences of permitting such a theory of recovery to exist,
‘If the fan (plaintiff) wins against the Bills, every lawyer in Western New York
could use the precedent to finance a vacation to the Riviera.’”).
605 F.3d at 236-37 (emphases added). The Plaintiffs’ action here is precisely the “blown call”
“The uniform weight of established case law holds that a failure to satisfy the subjective
expectations of spectators at a sporting event is not actionable under law.” Bowers v. Fed’n
Internationale de L’Automobile, 461 F. Supp. 2d 855, 859 (S.D. Ind. 2006), aff’d 489 F.3d 316
(7th Cir. 2007). In addition to Bowers, Mancina, and Mayer, these cases include:
Castillo v. Tyson, 701 N.Y.S.2d 423, 424–25 (N.Y. App. Div. 2000) (dismissing action for
refund of ticket price for Holyfield-Tyson bout in which Mr. Tyson was disqualified for
biting Mr. Holyfield’s ear; “plaintiffs received what they paid for, namely, the right to view
Charpentier v. Los Angeles Rams Football Co., 89 Cal. Rptr. 2d 115, 124 (1999)
(dismissing claim for breach of covenant of good faith and fair dealing for failure to state
a claim because “plaintiff did not buy the right to watch a good team or to have enlightened
–14–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 15 of 22
Strauss v. Long Island Sports, Inc., 60 A.D. 2d 501, 510 (N.Y. App. Div. 1978) (finding
“does not state a cause of action”: “Assuming, as plaintiff does, that every person who
bought a season ticket did so in the expectation that Dr. J would play for the Nets, any such
Bickett v. Buffalo Bills, Inc., 472 N.Y.S.2d 245, 248 (N.Y. Sup. Ct. 1983) (dismissing for
failure to state a claim, rejecting the argument that plaintiff could state a cause of action
based upon the “poor performance” and “diminished quality” of the Bills during player
strike replacement games, observing that “diminished quality lies in the eye of the
beholder”).
These cases almost uniformly focus on the lack of cognizable rights by ticketholders, who
at least could assert (though unsuccessfully) a contract claim based on their tickets. Courts have
held (as in Mancina and Mayer) that the only contractual obligation imparted by the ticket is
admission to the stadium to view a football game. 605 F.3d at 236. Similarly, as to Saints games,
a Saints ticketholder has a (revocable) license only allowing entrance to the stadium and a place
from which to watch the specific game. Ticketless fans, or in the parlance of Mancina and the
Petition here, “the Who Dat Nation,” have even less of a cognizable interest, having no ticket and
therefore not even the contractual entitlement for entry to the game. The interests identified in the
Petition (faith in the NFL, trust in the “National pastime”), have never been identified by any court
alleged failure to enforce the NFL Rules (Petition ¶ 10), or whether the chosen remedy is damages
–15–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 16 of 22
In addition to damages, Plaintiffs seek the issuance of a writ of mandamus. In the Rule to
Show Cause accompanying their Petition, they make clear that they seek a writ of mandamus
compelling the Commissioner “to implement Rule 17, section 2, Article 1 and 3, wherein the
commissioners [sic] power under this section 2 include … the reversal of a game’s result or the or
the rescheduling of a game either from the beginning or from the point of which the extraordinary
act occurred.”16 However, mandamus is not available to them. There are only two circumstances
stated in the Louisiana Code of Civil Procedure where a corporation or a limited liability company
16
R. Doc. 1-1, at 9.
17
The NFL is not a corporation or limited liability company. It is an unincorporated association
comprised of the 32 separately owned and independently operated NFL member clubs, and Article
3864 does not even apply to it. The undersigned have located no Louisiana court decisions
allowing a writ of mandamus against a private non-corporation or non-LLC to compel actions
regarding the internal rules of that private unincorporated association. See Dunlap v. Ramsey &
Dunlap, 184 So. 710, 711 (La. 1938) (finding no authority for maintaining an action for dissolution
of a partnership as a summary mandamus proceeding); accord Fraser v. Patrolmen’s Benev. Ass’n
of City of New York, 578 N.Y.S.2d 574, 574 (N.Y. App. Div. 1992) (“… it being well established
that mandamus does not lie against a private association”). Plaintiffs’ Petition contains zero
allegations as to the duties or obligations of the only LLC named as a defendant, NFL Properties.
–16–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 17 of 22
The mandamus remedy under Louisiana law is available only to members of a corporation
or limited liability company, to compel the inner workings of the entity among its members. But
here, Plaintiffs are not parties with standing to direct the inner workings of the NFL. Plaintiffs are
ticketholders and fans. Their sole connection to the NFL is by way of having purchased a ticket to
witness a game between two member clubs of the NFL, granting them a license to watch the game.
See, e.g., Mayer, supra. Plaintiffs are not shareholders or members of the entity that they seek to
The limitations on the writ of mandamus in regular commercial disputes has been made
clear. For example, the writ does not lie to compel corporations, or their board of managers, to
perform obligations arising simply from contracts. State ex rel. Arbour v. Bd. of Mgrs. Of
Presbyterian Hosp. of New Orleans, 59 So. 108, 109 (La. 1912). Mandamus may be used to compel
a corporation to transfer stock, to compel it to hold regular meetings required by its charter, and to
compel it to permit shareholders to examine corporate books, but mandamus cannot be used to
compel performance of contractual obligations. Hebert v. Abbey Healthcare Group, Inc., 1994-
1280 (La. App. 3 Cir., 5/17/1995), 657 So. 2d 278, 280. Plaintiffs’ purported “standing” stems
solely from their status as ticketholders, and some contractual right they perceive to be satisfied
with the outcome of the game, but they are not included within any right to use mandamus to
compel the NFL to satisfy an obligation that arises simply from their tickets to watch the game.
Furthermore, “[m]andamus will not lie in matters in which discretion and evaluation of
evidence must be exercised; the remedy is not available to command the performance of an act
that contains any element of discretion, however slight.” State through Morrell v. City of New
Orleans through Landrieu, 2017-110 (La. App. 4 Cir. 12/21/2017), 234 So. 3d 1071, 1079 (internal
quotation marks and citations omitted); see also Hoag v. State, 2004-857 (La. 12/1/2004), 889 So.
–17–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 18 of 22
2d 1019, 1024. Mandamus can be used only to compel performance of duties that are ministerial—
those duties that require no exercise of judgment or discretion in their performance. Mandamus is
to be used only when there is a clear and specific legal right to be enforced or a duty which ought
to be performed. It never issues in doubtful cases. Thornton ex rel. Laneco Const. Sys. Inc. v.
Lanehart, 97-1995 (La. App. 1 Cir. 12/28/98), 723 So. 2d 1118, 1123 (internal citations omitted).
This is certainly true here where mandamus is not even provided for against private unincorporated
associations. La. C.C.P. art. Article 3864; Fraser, 578 N.Y.S.2d at 574.
Plaintiffs challenge what is at its heart a discretionary call on the playing field by a referee,
and cannot seek to overturn that by compelling the NFL to reverse the game’s result, overrule the
referee, or hold another game. The rules agreed to by all 32 of the NFL’s member clubs confirm
that the decision whether to call a penalty is a discretionary matter left to the Referee on the field.
18
NFL Rules, at 62 (emphases added).
–18–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 19 of 22
The NFL Rules thus specifically preclude directing the officials on the field to call a penalty; they
similarly bar anyone from second-guessing the final on-the-field decision of the Referee. This
housing of discretion with the Referee as to whether to call a penalty is similarly recognized in
NFL Rule 17, the rule relied on by Plaintiffs. But plaintiffs ignore the language in Article 2 of
Section 2 of Rule 17, which makes clear that the rule has no application here:
Plaintiffs would have this Court hold that a ticketholder or a fan (or some undefined “other”
interested person) has the right to demand that courts order the after-the-fact correction of
judgmental errors or errors by game officials even where the teams and players involved expressly
do not have such rights. This flies in the face of Mancina, Mayer, and all the cases leading up to
those decisions.
Even if the Commissioner were permitted to deem a particular missed call a “calamity”
under NFL Rule 17, § 2, Article 1, that reliance on Rule 17 unequivocally would be a discretionary
act, and therefore not subject to mandamus. Under NFL Rule 17,
The Commissioner has the sole authority to investigate and take appropriate
disciplinary and/or corrective measures if any club action, non-participant
interference, or calamity occurs in an NFL game which the Commissioner deems
19
NFL Rule 17, § 2, Art. 2 (NFL Rules, at 67) (emphasis added).
–19–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 20 of 22
The Commissioner is the one to deem whether corrective action is appropriate: The discretion lies
New Orleans through Munster, 2017-914 (La. App. 4 Cir. 3/28/2018), 243 So. 3d 623, 626; Constr.
Diva, L.L.C. v. New Orleans Aviation Bd., 2016-566 (La. App. 4 Cir. 12/14/2016), 206 So. 3d
1029, 1037. This is a clear case where Plaintiffs’ Petition for a writ of mandamus must be denied,
because they have no standing to compel the NFL, and because they are asking to compel much
V. Conclusion
The unambiguous allegations of the Plaintiffs’ Petition provide the beginning and the end
of this Court’s foray into officiating a football game. First, it is clear that this Court has jurisdiction
under CAFA, that the Plaintiffs have brought a class action putting a sum or value greater than $5
million in controversy, between parties of minimally diverse citizenship. That is the beginning for
this Court. The end, however, is in what these Plaintiffs ask the courts to do. The Plaintiffs—fans
and ticketholders for an athletic event—do not have standing to seek remedies from dissatisfaction
with the outcome of that game, because the legal rights they seek to enforce are not legally
cognizable. Moreover, the mandamus relief they seek is entirely inapplicable, as there is no
ministerial duty owed by any of the NFL Defendants to the Plaintiffs for this Court to compel. And
granting plaintiffs’ petition would both ignore long-settled legal principles and place the courts in
the midst of an endless number of disputes that would quickly swallow up the judiciary’s resources
20
NFL Rule 17, § 2, Art. 1 (NFL Rules, at 66) (emphasis added); see also NFL Rules Preface
(“Any intra-League dispute or call for interpretation in connection with these rules will be decided
by the Commissioner of the League, whose ruling will be final.”).
–20–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 21 of 22
and time. Accordingly, in the exercise of this Court’s jurisdiction, the NFL Defendants request
that this Court dismiss Plaintiffs’ suit, with prejudice, and at Plaintiffs’ costs.
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above pleading was served on counsel of record by
filing in this Court’s CM/ECF System, as to all counsel connected to this case in that system, and
otherwise by email or facsimile transmission, on this date, the 27th day of January, 2019, as
follows:
James R. Dugan, II
David S. Scalia
The Dugan Law Firm, APLC
One Canal Place, Suite 1000
365 Canal Street
New Orleans, LA 70130
James M. Williams
Chehardy Sherman & Williams
One Galleria Boulevard, Suite 1100
Metairie, LA 70001
Roderick Alvendia
–21–
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 22 of 22
Anthony D. Irpino
Irpino Avin & Hawkins
2216 Magazine Street
New Orleans, LA 70130
–22–