Mayer v. Belichick

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-2237

CARL J. MAYER,
Appellant

v.

BILL BELICHICK; THE NEW ENGLAND PATRIOTS;
NATIONAL FOOTBALL LEAGUE

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3-07-cr-04671)
District Judge: Hon. Garrett E. Brown, Jr.

Argued April 14, 2010

BEFORE: FISHER, and COWEN, Circuit Judges
and PRATTER*, District Judge

(Filed: May 19, 2010)

*Honorable Gene E.K. Pratter, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Bruce I. Afran, Esq. (Argued)
10 Braeburn Drive
Princeton, NJ 08540

Carl J. Mayer, Esq. (Argued)
Mayer Law Group
66 Witherspoon Street, Suite 414
Princeton, NJ 08540
Counsel for Appellant

Daniel L. Goldberg, Esq. (Argued)
Charles L. Solomont, Esq.
Bingham McCutchen
One Federal Street
Boston, MA 02110

David Kistler, Esq.
Stephen M. Orlofsky, Esq.
Blank Rome
301 Carnegie Center, Third Floor
Princeton, NJ 08540
Counsel for Appellees Bill
Belichick and New England Patriot
Football Club

Paul M. Eckles, Esq.
Shepard Goldfein, Esq. (Argued)
Skadden, Arps, Slate, Meagher & Flom
4 Times Square
New York, NY 10036
Counsel for Appellee National
Football League

OPINION

COWEN, Circuit Judge

2
 Plaintiff Carl J. Mayer appeals from the order of the
United States District Court for the District of New Jersey
granting the respective motions to dismiss filed by Defendants
Bill Belichick and the New England Patriots (“Patriots”) as well
as by Defendant National Football League (“NFL”). We will
affirm.

I.

This highly unusual case was filed by a disappointed
football fan and season ticket-holder in response to the so-called
“Spygate” scandal. This scandal arose when it was discovered
that the Patriots were surreptitiously videotaping the signals of
their opponents.

Mayer, a New Jersey resident and New York Jets season
ticket-holder, initially filed his complaint on September 7, 2007.
He named as Defendants the Patriots, headquartered in
Massachusetts, as well as the team’s head coach, Belichick, a
Massachusetts resident. Mayer eventually filed an amended
complaint on August 19, 2008, which added the NFL, with its
headquarters in New York, as a Defendant.

We, like the District Court before us, must look to the
amended complaint, accepting its well-pleaded factual
allegations as true for purposes of this appeal. The “Preliminary
Statement of the Case” section of this extensive pleading
provided a fair description of the gist of Mayer’s case, at least
against the Patriots and Belichick:

2. This case is brought by a New York Jets season
ticket-holder on behalf of all similarly situated
New York Jets season ticket-holders and other
New York Jets ticket-holders against the
Defendant New England Patriots and their coach,
Defendant Bill Belichick. The core of this action
is that the Defendants, during a game with the New
York Jets on September 9, 2007, instructed an
agent of the Defendants to surreptitiously
videotape the New York Jets coaches and players

3
 on the field with the purpose of illegally recording,
capturing and stealing the New York Jets signals
and visual coaching instructions. The Defendants
were in fact subsequently found by the National
Football League (“NFL”) to have improperly
engaged in such conduct. This violated the
contractual expectations and rights of New York
Jets ticket-holders who fully anticipated and
contracted for a ticket to observe an honest match
played in compliance with all laws, regulations and
NFL rules.

3. Plaintiffs contend that in purchasing tickets to
watch the New York Jets that, as a matter of
contract, the tickets imply that each game will be
played in accordance with NFL rules and
regulations as well as all applicable federal and
state laws. Plaintiffs contend that Defendants
tortuously [sic] interfered with their contractual
relations with the New York Jets in purchasing the
tickets. They further claim that Defendants
violated the New Jersey Consumer Fraud Act and
the New Jersey Deceptive Business Practices Act.
Plaintiffs also claim that the Defendants violated
federal and state racketeering laws by using the
National Football League as an enterprise to carry
out their illegal scheme. Because the Defendants
have been found in other games to have illegally
used video equipment, this action seeks damages
for New York Jets ticket-holders for all games
played in Giants stadium between the New York
Jets and the New England Patriots since Bill
Belichick became head coach in 2000.

(A18-A19.) Mayer then described at some length the alleged
misconduct at issue here. His account, in turn, relied heavily on
press accounts of the Spygate scandal as well as “on information
and belief” allegations.

At their most fundamental level, the various claims

4
alleged here arose out of the repeated and surreptitious violations
of a specific NFL rule. This rule provides that “‘no video
recording devices of any kind are permitted to be in use in the
coaches’ booth, on the field, or in the locker room during the
game’” and that “all video for coaching purposes must be shot
from locations ‘enclosed on all sides with a roof overhead.’”
(A22.) In a September 6, 2007 memorandum, Ray Anderson,
the NFL’s executive vice president of football operations, stated
that “‘[v]ideotaping of any type, including but not limited to
taping of an opponent’s offensive or defensive signals, is
prohibited on the sidelines, in the coaches’ booth, in the locker
room, or at any other locations accessible to club staff members
during the game.’” (Id.)

On September 9, 2007, the Jets and the Patriots played the
season opener in Giants Stadium, East Rutherford, New Jersey.
Mayer possessed tickets and parking passes to this game, and the
Patriots ultimately won, 38-14. ESPN.com then reported that the
NFL was investigating accusations that an employee of the
Patriots was actually videotaping the signals given by Jets
coaches at this game. Specifically, NFL security reportedly
confiscated a video camera and videotape from an employee
during the course of the game, and this employee was accused of
aiming his camera at the Jets’ defensive coaches while they were
sending signals out to the team’s players on the field.

This was not the first time a public accusation of cheating
or dishonesty had been made against the Patriots. A man
wearing a Patriots credential was found carrying a video camera
on the sidelines at the home field of the Green Bay Packers in
November 2006. Admittedly, “[t]eams are allowed to have a
limited number of their own videographers on the sideline
during the game, but they must have a credential that authorizes
them to shoot video, and wear a yellow vest.” (A21.) However,
this particular individual evidently lacked the proper credential
and attire and was accordingly escorted out of the stadium by
Packers security.

With respect to the 2007 incident, the Patriots denied that
there was any violation of the NFL’s rules. A Patriots

5
cornerback named Ellis Hobbs told the press that he was
unwilling to believe that his team had cheated and that he was
standing by the team and its coaches. However, he also admitted
that, “[i]f it’s true, obviously, we’re in the wrong.” (Id.)
Belichick apologized to everyone affected following the
confiscation of the videotape. But, at a weekly press conference
on September 12, 2007, he refused to take questions from
reporters about the NFL investigation and stormed out of the
room.

On September 13, 2007, “the NFL found the Defendants
guilty of violating all applicable NFL rules by engaging in a
surreptitious videotaping program.” (A22.) It imposed the
following sanctions: (1) the Patriots were fined $250,000.00; (2)
Belichick was personally fined $500,000.00; and (3) the Patriots
would be stripped of any first-round draft pick for the next year
if the team reached the playoffs in the 2007-2008 season and, if
not so successful, the team would otherwise lose its second- and
third-round picks. Roger Goodell, the commissioner of the NFL,
characterized the whole episode as “‘a calculated and deliberate
attempt to avoid longstanding rules designed to encourage fair
play and promote honest competition on the playing field.’”
(Id.) He further justified the penalties imposed on the team on
the grounds that “‘Coach Belichick not only serves as the head
coach but also has substantial control over all aspects of New
England’s football operations” and therefore “‘his actions and
decisions are properly attributed to the club.’” (Id.)

The owner of the Patriots, Robert Kraft, refused to
comment on the NFL’s sanctions, and the New York Jets issued
a statement supporting the commissioner and his findings. On
September 13, 2007, Belichick stated the following: “‘Once
again, I apologize to the Kraft family and every person directly
or indirectly associated with the New England Patriots for the
embarrassment, distraction and penalty my mistake caused. I
also apologize to Patriots fans and would like to thank them for
their support during the past few days and throughout my
career.’” (A23.) However, he then “bizarrely . . . attempted to
deny responsibility, stating: ‘We have never used sideline video
to obtain a competitive advantage while the game was in

6
progress. . .[.] With tonight’s resolution, I will not be offering
any further comments on this matter. We are moving on with
our preparations for Sunday’s game.’” (Id.) But, at least
according to Mayer, Jets ticket-holders have refused to “move
on.” (Id.)

The Patriots and Belichick deployed their surreptitious
videotaping program during all eight games played against the
Jets in Giants Stadium from 2000 through 2007. Beginning in
2000 when Belichick became head coach, they commenced an
ongoing scheme to acquire the signals of their adversaries and
then match such signals to the plays on the field, in alleged
violation of the “NFL rules that are part of the ticketholders’
contractual and/or quasi contractual rights.” (A24.) On the
other hand, Jets fans collectively spent more than $61 million on
tickets to watch these purportedly honest and competitive games
between the two teams.

In 2000, Matt Walsh, an employee in the team’s
videography department, was hired by the team to videotape the
signals of opponents. Relying specifically on statements made
by Walsh to the New York Times and United States Senator
Arlen Specter, Mayer made a series of allegations with respect to
this Patriots employee. Walsh claimed that he received his
videotaping instructions directly from Ernie Adams, Belichick’s
own special assistant. The purpose of the videotaping program
was to capture signals for use in games against the same
opponent later in the season, and the program was later
expanded to include teams that the Patriots could encounter in
the playoffs. The first instance of taping occurred in a 2000 pre-
season game against the Tampa Bay Buccaneers. When the two
teams played again in the regular season opener, the Patriots
appeared to use the acquired signals. Walsh specifically asserted
“that this was the first time he had seen quarterback Drew
Bledsoe operate a ‘no huddle’ [offense] ‘when not in a two-
minute or hurry situation’” and that, when he asked an unnamed
quarterback if the taped signals were helpful, the player replied
that, “‘probably 75 per cent of the time, Tampa Bay ran the
defense we thought they were going to run.’” (A24-A25.)
Although Walsh left the videotaping program after the 2002

7
Super Bowl, “he [as a Patriots season ticket-holder] witnessed
Patriots employee Steve Scarnecchia continue the same taping
practices in multiple games in the 2003, 2004, and 2005
seasons.” (A25.) Walsh was further instructed by the Patriots
organization to conceal his actions and misrepresent his
activities if challenged on the field by: (1) intentionally breaking
the red operating light on the video camera, (2) telling any
person questioning “the use of a third video camera on the field”
that he was filming tight shots or highlights, and (3) “if asked
why he was not filming action on the field, he was to say he was
filming the down marker.” (Id.) Finally, at the 2002 American
Football Conference championship game against the Pittsburgh
Steelers, Walsh was instructed not to wear a team logo while
filming.

Walsh’s attorney, Michael Levy, likewise released a
statement describing the team’s method “of securing and tying
coaching signals to plays.” (A26.) As reported in the New York
Post, the lawyer provided the following description of a
videotape made during an October 7, 2001 game against the
Miami Dolphins:

“[It] contains shots of Miami’s offensive coaches
signaling Miami’s offensive players, followed by a
shot from the end-zone camera of Miami’s
offensive play, followed by a shot of Miami’s
offensive coaches signaling Miami’s offensive
players for the next play, then edited to be
followed by a shot of the subsequent Miami
offensive play,” Levy told ESPN.com. “And that
pattern repeats throughout the entire tape, with
occasional cuts to the scoreboard.’”

(Id. (citation omitted).)

Citing again to the New York Post, Mayer further alleged
that the NFL wrongfully destroyed the illicit videotapes
themselves:

Other tapes produced to the NFL (and later

8
 destroyed by order of Commissioner Roger
Goodell, see infra) include defensive signals from
Miami coaches in a game on Sept. 24, 2000,
signals from Bills coaches from a Nov. 11, 2001
game, signals from Browns coaches from a game
on Dec. 9, 2001, two tapes of signals from Steelers
coaches from the 2001 AFC Championship game
on Jan. 27, 2002, and signals from Chargers
coaches from a game Sept. 29, 2002.

(Id. (citation omitted).) Walsh provided at least eight videotapes
to the NFL, while the Patriots likewise furnished at least six
tapes to the league. The commissioner claimed that he ordered
the destruction of the videotapes to prevent their use by the
Patriots, even though the NFL allegedly had a legal duty to
preserve these items pursuant, inter alia, to the Sarbanes-Oxley
Act and the NFL’s own antitrust exemption.

Mayer then made various class action allegations in his
amended complaint. According to the pleading, he intended to
seek the certification of both a national class and a state sub-
class. The proposed national class would consist of “[a]ll New
York Jets season ticket-holders and other ticket-holders who
purchased tickets to games between the New York Jets and the
New England Patriots in Giants stadium since Bill Belichick
became the head coach of the New England Patriots in 2000.”
(A27.) The subclass would encompass “[a]ll individuals that are
residents of the State of New Jersey and that purchased tickets to
watch the New York Jets play the New England Patriots between
2000 and 2007 in Giants stadium.” (Id.) The officers, directors,
employees, legal representatives, successors, and assigns of
Defendants were expressly excluded from both proposed classes.
Mayer additionally advanced various allegations with respect to
the specific class action requirements of numerosity, typicality,
adequacy, and predominance and superiority.

Mayer ultimately alleged nine separate counts in his
amended complaint. He asserted, in order, the following causes
of action against the Patriots and Belichick: (1) tortious
interference with contractual relations; (2) common law fraud;

9
(3) violations of the New Jersey Deceptive Business Practices
Act; (4) violations of New Jersey’s racketeering statute; (5)
violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”); (6) the infringement of the rights
of ticket-holders as third-party beneficiaries; (7) breach of
implied contract or quasi-contract; and (8) violations of the New
Jersey Consumer Fraud Act (“NJCFA”). Finally, he advanced a
breach of contract claim against the NFL on account of its
destruction of the videotapes.

Mayer sought an extensive range of relief in his amended
complaint, asking for: (1) a declaratory judgment; (2) equitable
relief in the form of a preliminary and permanent injunction
prohibiting any videotaping in violation of NFL rules and both
state and federal law; (3) the award of statutory damages in the
form of (a) “actual damages sustained by the customers in the
amount of [$61,600,000.00] for the amount paid by New York
Jets ticket-holders to watch eight fraudulent games between the
New England Patriots and the New York Jets between 2000 and
2007” as well as (b) “treble damages pursuant to [RICO and the
NJCFA] for a total amount of compensatory damages of
$184,800,000.00;” (4) the award of punitive damages; (5) the
award of attorneys’ fees and other costs; and (6) the award of
restitution, disgorgement, and all other relief allowed under the
NJCFA as to the New Jersey sub-class. (A42.) Mayer further
expressly asked for a jury trial.

After they were served with the amended complaint, the
Patriots and Belichick filed a motion to dismiss for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). The NFL subsequently filed its own motion to dismiss
as well. The Patriots and Belichick included with their motion a
copy of a Jets ticket stub from an August 17, 2007 game against
the Minnesota Vikings. This stub stated, inter alia, that “[t]his
ticket only grants entry into the stadium and a spectator seat for
the specified NFL game.” (SA4.) It added that “[a]dmission
may be refused or ticket holder ejected in the sole discretion of
the New York Jets LLC or New Jersey Sports & Exposition
Authority, subject to refund (or without refund if the ticket
holder is disorderly or fails to comply with these ticket terms or

10
any security measures).” (Id.) The District Court also received a
brief from the Jets as amicus curiae, supporting the respective
motions to dismiss. The District Court ultimately granted the
motions to dismiss in an order entered on March 23, 2009,
providing its reasons for doing so in an accompanying
memorandum opinion. It specifically explained that the various
causes of action must be dismissed as a matter of law because
Mayer failed to allege any actionable injury.

III.

It is undisputed that the District Court possessed federal
question, diversity, and supplemental jurisdiction over this
matter pursuant to 28 U.S.C. §§ 1331, 1332, and 1367. This
Court likewise has appellate jurisdiction under 28 U.S.C. § 1291.

We exercise de novo review of a District Court’s
dismissal under Rule 12(b)(6) for a failure to state a claim upon
which relief may be granted. See, e.g., Phillips v. County of
Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). We must accept
all factual allegations in the complaint as true, construe the
complaint in the light favorable to the plaintiff, and ultimately
determine whether plaintiff may be entitled to relief under any
reasonable reading of the complaint. See, e.g., id. at 233. In
order to withstand a motion to dismiss, “a complaint’s ‘[f]actual
allegations must be enough to raise a right to relief above the
speculative level.’” Id. at 232 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 & n.3 (2007)). This “requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550
U.S. at 555 (citation omitted). On the contrary, a court is not
required to accept legal conclusions alleged in the complaint.
See, e.g., Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
The pleading must contain sufficient factual allegations so as to
state a facially plausible claim for relief. See, e.g., Gelman v.
State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.
2009). A claim possesses such plausibility “‘when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. at 190 (quoting Ashcroft v. Iqbal, 129

11
S. Ct. 1937, 1949 (2009)). In deciding a Rule 12(b)(6) motion, a
court must consider only the complaint, exhibits attached to the
complaint, matters of public record, as well as undisputedly
authentic documents if the complainant’s claims are based upon
these documents. See, e.g., Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

IV.

The District Court, while noting that Mayer alleged
numerous theories of liability in this case, appropriately turned to
the following dispositive question: namely, whether or not he
stated an actionable injury (or, in other words, a legally protected
right or interest) arising out of the alleged “dishonest”
videotaping program undertaken by the Patriots and the NFL
team’s head coach. It does appear that the various (and
numerous) decisions cited by the District Court and the parties
on appeal are distinguishable from the highly unusual (and even
unique) circumstances present here. Simply put, no one in the
past has ever brought a legal action quite like this one.
However, past cases do, at the very least, provide this Court with
certain general legal principles especially relevant to the present
matter. Taking into account these principles, the numerous
arguments of the parties on appeal, the record on appeal, and the
District Court’s own ruling, we ultimately conclude that the
District Court was correct to hold that Mayer failed to set forth a
legally cognizable right, interest, or injury here. At best, he
possessed nothing more than a contractual right to a seat from
which to watch an NFL game between the Jets and the Patriots,
and this right was clearly honored. More specifically, we predict
that the New Jersey Supreme Court would reach the exact same
legal conclusion if it were confronted with this appeal. See, e.g.,
Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.
2010).

Initially, we consider how tickets to sporting and other
entertainment events have been treated in the past. As the
District Court recognized, New Jersey has generally followed a

12
so-called “license” approach.1 In Shubert v. Nixon Amusement
Co., 83 A. 369 (N.J. Sup. Ct. 1912), the old New Jersey Supreme
Court considered a tort action filed by a plaintiff who, together
with his friends, was ejected from a theater even though they had
already taken their seats,2 id. at 369. In considering this action,
the court turned to prior case law, especially the Court of
Exchequer’s leading decision in Wood v. Leadbitter, (1845) 153
Eng. Rep. 351 (Exch.). Relying, inter alia, on this English
decision, the Shubert court repeatedly indicated that a ticket
provides a patron with nothing more than a revocable license.
Shubert, 83 A. at 369-71. For instance, it quoted, with approval,
the Pennsylvania Supreme Court’s finding “that ‘a theater ticket
is to be regarded as a mere license, for the revocation of which
before the holder has actually been given his seat, and has taken
it, the only remedy is in assumpsit for a breach of contract.’” Id.
at 370 (quoting Horney v. Nixon, 61 A. 1088, 1090 (Pa. 1905) ).
While referring in passing to the “natural justice or injustice” of
the defendant’s actions, the New Jersey Supreme Court
ultimately ruled that the well-established “license” rule barred
the plaintiff’s tort action even though he had already taken his
seat in the theater before being asked to leave. Id. at 371.

It appears that this “license” approach has, for some time,
been followed throughout the United States and in other
common law jurisdictions throughout the world. For example,
the United States Supreme Court, in a decision written by Justice
Holmes considering the exclusion from a race track of a ticket-
holder suspected of drugging a horse, cited with approval both

1
A license, for our purposes, is generally defined as “[a]
permission, usu. revocable, to commit some act that would
otherwise be unlawful; esp., an agreement (not amounting to a
lease or profit a prendre) that it is lawful for the licensee to enter
the licensor’s land to do some act that would otherwise be illegal,
such as hunting game.” Black’s Law Dictionary 1002 (9th ed.
2009).
2
It appears that the plaintiff was actually a show business
competitor of the defendants. See Garifine v. Monmouth Park
Jockey Club, 148 A.2d 1, 4 (N.J. 1959).

13
Leadbitter as well as Shubert itself. Marrone v. Wash. Jockey
Club of D.C., 227 U.S. 633, 635 (1913). In turn, the current
New Jersey Supreme Court adopted the “license” rule in another
case dealing with the exclusion and expulsion of a ticket-holding
patron from a race track. In Garifine v. Monmouth Park Jockey
Club, 148 A.2d 1 (N.J. 1959), the race track excluded and
expelled a patron, who had been charged but acquitted of being a
bookmaker, as an undesirable, id. at 2. The plaintiff argued,
inter alia, “that notwithstanding the holding of the former
Supreme Court in [Shubert], the operator of a licensed race track
should not have the common-law right to exclude or expel a
patron without reasonable cause.” Id. After a thorough
discussion, including summaries of both Leadbitter and Shubert,
New Jersey’s highest court rejected this attack on the “common-
law right of race track operators to exclude suspected
undesirables.” Id. at 6. It noted, inter alia, that the plaintiff’s
complaint “does not question the defendant’s good faith or
sound purposes nor does it present any countervailing
circumstances or any urgent considerations of justice or policy”
indicating the need to depart from the general rule. Id.

Although it did not use the specific term “license,” the
ticket stub provided by the Patriots nevertheless appears
consistent with this traditional approach. For example, it
unambiguously stated that “[t]his ticket only grants entry into the
stadium and a spectator seat for the specified NFL game.”
(SA4.) The stub further made clear that the Jets and the owners
of the stadium retain sole discretion to refuse admission or to
eject a ticket-holder. Admittedly, the Shubert court in particular
made repeated references to the existence of a claim for breach
of contract. See Shubert, 83 A. at 369-71. However, it appears
that the court was only referring to the patron’s right to obtain a
refund of the ticket price (and related expenses) because the
venue exercised its right to deny entry or expel the patron.3

3
Specifically, the Shubert court stated, inter alia, that:

The position of the defendants is that the sale
of the tickets gave rise only to a personal license,

14
Given that Mayer was never barred or expelled from any game at
Giants Stadium, much more is needed to establish a cognizable
right, interest, or injury than these kinds of inapposite
statements.

On the other hand, it is also true that the whole traditional
approach, generally permitting patrons to be excluded or
expelled without cause, has been subjected to rather serious
attack. Even as early as 1959, the Garifine court acknowledged
some of this criticism, noting, inter alia, that the Court of
Appeal of England and Wales actually rejected the prior holding
in Leadbitter. Garifine, 148 A.2d at 3 (citing Hurst v. Picture
Theatres, [1915] 1 K.B. 1 (A.C. 1914)). More recently, the New
Jersey Supreme Court vigorously attacked the whole notion of
an unfettered right to exclude or expel in a case involving a
casino’s decision to exclude a patron from its blackjack tables
because of his card counting strategy. In Uston v. Resorts Int’l
Hotel, Inc., 445 A.2d 370 (N.J. 1982), the court ultimately held
that the state’s gaming statute gives the Casino Control
Commission exclusive authority to set the rules and methods of
licensed casino games and that the casino was thereby statutorily
precluded from excluding the gambler. Id. at 371. However, the
Uston court then attacked at some length the “current majority
American rule” that an amusement place owner has “an absolute
right arbitrarily to eject or exclude any person consistent with

revocable at any time, and whose revocation would
confer no right of action, except for the money paid,
with such incidental damages as would arise from
the expense and inconvenience of going to the
theater to no purpose. . . .

....

. . . . It was held that plaintiff might recover in
contract the price of his ticket and all legal damages
sustained by the breach of the contract implied by
the sale and delivery of the ticket . . . .
Shubert, 83 A. at 369-70.

15
state and federal civil rights laws.” Id. at 374 (citation omitted).
For a variety of reasons (including speculation that the rule was
developed and maintained as a way to protect segregationist
activities), the court adamantly rejected the majority rule in favor
of an approach recognizing the patron’s right to “reasonable
access.” Id. at 373-75.

The status of the “license” rule in New Jersey with
respect to the right of an amusement place owner to bar or
exclude a patron still appears unsettled. In yet another race track
case, the New Jersey Supreme Court expressly characterized the
discussion in Uston regarding the rule as dicta. Marzocca v.
Ferone, 461 A.2d 1133, 1137 (N.J. 1983). In Marzocca, the
court concluded that this dicta did not apply to the exclusion of a
horse owner and his horse from the track’s races, and it therefore
refrained from deciding whether the casino decision overruled
Garifine sub silentio. Id. at 1134, 1137. On the other hand, the
Marzocca court did further “limit the common law doctrine by
proscribing exclusions that violate public policy.” Id. at 1137.
After noting that the plaintiff disclaimed the existence of any
express or implied contract with the race track, the New Jersey
Supreme Court ultimately found that no such public policy
concerns were implicated. Id. at 1137-38.

We nevertheless conclude that neither the Uston ruling
nor similar decisions have any real relevance here. As already
noted, we are not concerned in this case with a patron excluded
or ejected from the premises. In fact, it was the notion of a
person’s right to “reasonable access” that served as the
fundamental basis for the reasoning of the court in Uston. We
therefore need not (and do not) have to predict how the New
Jersey Supreme Court would treat an ejection case like Shubert
at this time. However, the various general principles stated in
such cases as Shubert, Uston, and Marzocca still guide our
consideration of more recent case law arising out of the specific
sports context.

Courts across the country have recently struggled to deal
with litigation arising out of the often complicated ticket
arrangements between teams and their fans. Season ticket-

16
holders accordingly have sued teams, with varying degrees of
success, claiming that some action (e.g., moving the team itself
to another city) violated either their renewal rights or other rights
related to their status as season ticket-holders. See, e.g.,
Oshinsky v. N.Y. Football Giants, Inc., Civil Action No. 09-cv-
1186 (PGS), 2009 WL 4120237, *4-*10 (D.N.J. Nov. 17, 2009);
Brotherson v. Prof’l Basketball Club, LLC, 604 F. Supp. 2d
1276, 1283-96 (D. Wash. 2009); Charpentier v. L.A. Rams
Football Co., 75 Cal. App. 4th 301, 308-16 (1999); Miami
Dolphins, Ltd. v. Genden & Bach, P.A., 545 So.2d 294, 295-96
(Fla. Dist. Ct. App. 1989) (per curiam); Skalbania v. Simmons,
443 N.E.2d 352, 356-63 (Ind. Ct. App. 1982); Wichita State
Univ. Intercollegiate Athletic Ass’n v. Marrs, 28 P.3d 401, 402-
04 (Kan. Ct. App. 2001) (per curiam); Yarde Metals, Inc. v. New
England Patriots Ltd. P’ship, 834 N.E.2d 1233, 1235-38 (Mass.
App. Ct. 2005); Strauss v. Long Island Sports, Inc., 401
N.Y.S.2d 233, 235-38 (App. Div. 1978); Bickett v. Buffalo Bills,
Inc., 472 N.Y.S.2d 245, 247-48 (Sup. Ct. 1983); Beder v.
Cleveland Browns, Inc., 717 N.E.2d 716, 719-23 (Ohio Ct. App.
1998); Stern v. Cleveland Browns Football Club, Inc., No. 95-L-
196, 1996 WL 761163, at *5-*6 (Ohio Ct. App. December 20,
1996) . Similarly, other courts have addressed the closely related
question of whether such alleged renewal rights may be sold by
the bankruptcy trustee. See, e.g., Abele v. Phoenix Suns Ltd.
P’ship (In re Harrell), 73 F.3d 218, 219-20 (9th Cir. 1996) (per
curiam); Grossman v. Boston Red Sox Baseball Club Ltd. P’ship
(In re Platt), 292 B.R. 12, 17-18 (Bankr. D. Mass. 2003); In re
Liebman, 208 B.R. 38, 39-41 (Bankr. N.D. Ill. 1997); In re I.D.
Craig Serv. Corp., 138 B.R. 490, 493-502 (Bankr. W.D. Pa.
1992).

Nevertheless, the existing “season ticket” case law
ultimately does not really help Mayer. Several of these cases
have actually indicated that there may be different and distinct
kinds of rights or interests implicated in the season ticket
context. For instance, the bankruptcy court in Craig stated “that
the conclusion does not follow that, because each single ticket is
a revocable license, [the team] can either deny Trustee’s request
to transfer his season ticket status or refuse to recognize that
status in his transferees.” Craig, 138 B.R. at 494. On the

17
contrary, the Craig court expressly recognized that “[t]he game
tickets themselves and the right to renew the season tickets are
two separate and distinct interests of this estate.” Id. We are not
concerned here with the relatively more straight-forward issue of
renewal rights. Reduced to its essence, the current appeal before
us is concerned with the alleged existence of a very specific but
very different and unusual right: namely, the right of a ticket-
holder to see an “honest” game played in compliance with the
fundamental rules of the NFL itself (which was then allegedly
denied to Mayer and his fellow ticket-holders because of the
secret and illicit videotaping program undertaken by the Patriots
and Belichick).

Although the factual circumstances and claims before this
Court appear to be rather unique, several courts have addressed
relatively similar theories of liability with respect to the related
issues of alleged poor performance and rule violations. The
District Court itself cited to some of these decisions, and it
specifically focused on two of them: Bowers v. Federation
Internationale de l’Automobile, 489 F.3d 316 (7th Cir. 2007),
and Castillo v. Tyson, 701 N.Y.S.2d 423 (App. Div. 2000)
(mem. decision). Both of these rulings provide clear support for
the District Court’s dismissal of Mayer’s complaint.

The Bowers litigation arose out of a Formula One car race
in Indianapolis, where fourteen of the original twenty cars did
not participate because a serious tire flaw made their tires
dangerous to use at full speed on one part of the track. Bowers,
489 F.3d at 319. The entire heated affair was dubbed
“Indygate.” Id. at 320. Disappointed fans sued, seeking the
expenses they had incurred to attend the race, and alleging, inter
alia, that the Formula One racing rules require at least twelve
cars to participate in any race. Id. at 320-21. The Seventh
Circuit affirmed the District Court’s dismissal of the various
claims advanced by the plaintiffs. Id. at 320-25.

Of particular significance here, the appellate court
initially stated that any breach of contract claim “arguably should
fail because IMS [the race track hosting the event] promised
only to admit the plaintiffs to the race grounds on the days of the

18
grand prix.” Id. at 321. It went on to state the following:

While we are unaware of any Indiana case
addressing the nature of a contract formed by the
sale of an admission ticket, cf. [Skalbania, 443
N.E.2d at 352] (addressing a class certification
question in a breach of contract action by season
ticket holders against a hockey franchise, but
explicitly reserving the merits), most states agree
that the seller contracts only to admit the plaintiff
to its property at a given time. The plaintiff buys
the ticket, of course, in order to see an event that is
scheduled to occur on the ticket-seller’s grounds,
but the seller does not contract to provide the
spectacle, only to license the plaintiff to enter and
“view whatever event transpire[s].” [Castillo, 701
N.Y.S.2d at 423].

Id. (other citations omitted). Noting that one certainly could
contract to provide a spectacle, the Bowers court questioned why
an exhibitor like the race track here would do so given its lack of
control over the performers and their scheduled performances.
Id. Furthermore, a patron “could reasonably decide to do
without a contractual right to the spectacle itself, trusting that the
exhibitor will work with the performers to ensure that the
spectacle goes off lest both develop a bad reputation that could
damage their future business.” Id. The Seventh Circuit then
noted that Formula One racing has struggled to take root in the
United States, that the effects of Indygate on the sport’s
reputation was a serious concern for everyone involved, and that
there was speculation that the sport might never hold a race at
the track again. Id.

Acting out of an abundance of caution because of the
absence of Indiana case law on point, the Seventh Circuit
ultimately purportedly rested its ruling on other grounds. Id. at
321-25. It thereby assumed that the plaintiffs did in fact possess
a contractual right to a “regulation Formula One race” as well as
a right “to have the race stewards properly interpret the
applicable regulations on the spot.” Id. at 321 But, among other

19
things, the appellate court found that a six-car race was not
actually prohibited or otherwise nonsensical under the Formula
One rules. Id. at 322. Accordingly, there was no reason to
claim, “as the plaintiffs in all seriousness do, that no race
occurred.” Id. Furthermore, the court further discussed the
limited scope of the underlying ticket or license. It therefore
noted that a sporting contest is not invalidated merely because of
a player’s poor effort. Id. Insofar as plaintiffs themselves
received a “regulation race,” “they admit that they had no
additional right to a race that was exciting or drivers that
competed well.” Id. (citations omitted). In discussing the
promissory estoppel claim, the court likewise observed that
numerous factors, ranging from a driver’s sudden illness to an
accident shipping a car to the track, could prevent a full
complement of cars from racing at a particular location on a
particular day. Id. at 324.

Quoted by the Bowers court, the New York Appellate
Division in Castillo confronted a seemingly unique situation of
its own. The plaintiffs sought a refund of the money they paid to
see a boxing match after one of the boxers, Mike Tyson, was
disqualified for biting his opponent’s ear. Castillo, 701
N.Y.S.2d at 424. Invoking (like Mayer himself) a long list of
legal theories, the plaintiffs “claim that they were entitled to
view a ‘legitimate heavyweight title fight’ fought ‘in accordance
with the applicable rules and regulations’ of the governing
boxing commission.” Id. But the Appellate Division upheld the
trial court’s dismissal of the complaint Id. at 424-25. Among
other things, it noted that there was nothing in any contract
promising a fight that did not end in a disqualification. Id. at
424. On the contrary, the rules themselves “provide for
disqualification and it is a possibility that a fight fan can
reasonably expect.” Id. In specifically rejecting the unjust
enrichment claim, the Appellate Division reasoned “that
plaintiffs received what they paid for, namely, ‘the right to view
whatever event transpired.’” Id. at 425.

As highlighted by the District Court itself as well as both
the Seventh Circuit and the New York Appellate Division,
numerous other decisions provide yet further support for this

20
reasoning. For instance, the Seventh Circuit stated the
following, admittedly in a case involving a debt collection
arrangement: “That the Chicago Cubs turn out to be the doormat
of the National League would not entitle the ticket holder to a
refund for the remaining games, any more than the star tenor’s
laryngitis entitles the opera goer to a refund when the understudy
takes over the role.” Seko Air Freight, Inc. v. Transworld Sys.,
Inc., 22 F.3d 773, 774 (7th Cir. 1994). On the contrary, the fan’s
remedy would be to “head south for Comiskey Park and the
White Sox.” 4 Id. We believe that the New Jersey Supreme

4
Other courts have made similar statements as to the
absence of a cause of action arising out of bad performance or,
more generally, the subjective expectations of the ticket-holders.
See, e.g., Brotherson, 604 F. Supp. 2d at 1296 (“Plaintiffs may
have enjoyed Sonics games less as it became more likely that the
team would leave Seattle at the end of the season, but that is at best
the sort of mental injury that the [Washington consumer protection
statute] does not recognize.”); Charpentier, 75 Cal. App. 4th at 314
(rejecting claim of breach of covenant of good faith and fair
dealing because “plaintiff did not buy the right to watch a good
team or to have enlightened (in his opinion) management decisions
made” (citation omitted)); Strauss, 401 N.Y.S.2d at 235-38 (finding
class action was not appropriate where season ticket-holder filed
suit against New York Nets because the team traded Julius Erving
to the Philadelphia 76ers); Bickett, 472 N.Y.S.2d at 248
(“Obviously, ‘diminished quality’ lies in the eyes of the
beholder.”); Beder, 717 N.E.2d at 725 (“That the Browns
performed poorly after the announced move to Baltimore cannot
serve as a basis from which to find that the Browns breached their
contract with season ticket holders. To allow recovery under such
a theory would enable any ticket holder not satisfied with the
performance of whatever entertainment the ticket procured to seek
a refund for such a subjective and unreasonable response.”
(citations omitted)); Stern, 1996 WL 761163, at *6 (“Additionally,
to the extent that appellant sought a refund for his 1995 tickets
based on the poor performance by the team after the November 6,
1996 announcement [of its relocation], we refuse to recognize such
a cause of action.”).

21
Court would follow the reasoning adopted by both the District
Court as well as by the overwhelming weight of the case law.

The District Court, in turn, properly applied this
reasoning in the present circumstances. Mayer possessed either
a license or, at best, a contractual right to enter Giants Stadium
and to have a seat from which to watch a professional football
game. In the clear language of the ticket stub, “[t]his ticket only
grants entry into the stadium and a spectator seat for the
specified NFL game.” (SA4.) Mayer actually was allowed to
enter the stadium and witnessed the “specified NFL game[s]”
between the Jets and Patriots. He thereby suffered no cognizable
injury to a legally protected right or interest.

Accordingly, we need not, and do not decide, whether a
ticket-holder possesses nothing more than a license to enter and
view whatever event, if any, happens to transpire. Here, Mayer
undeniably saw football games played by two NFL teams. This
therefore is not a case where, for example, the game or games
were cancelled, strike replacement players were used, or the
professional football teams themselves did something
nonsensical or absurd, such as deciding to play basketball. See,
e.g., Bowers, 489 F.3d at 322 (“But, while a six-car race under
the Regulations may be less rich, interesting or challenging than
a twelve-car race, it is not prohibited or nonsensical under the
rules (like a soccer match between three teams or a basketball
team getting a first down).”); Miami Dolphins, 545 So.2d at 295-
96 (upholding enforcement of fee abatement provision in club
seat license agreement because Miami Dolphins used
replacement players during strike); Skalbania, 443 N.E.2d at
354-63 (affirming certification of season ticket-holder class
where Indiana Racers did not finish season because of team’s
business collapse); Bickett, 472 N.Y.S.2d at 882-84 (rejecting
claims arising out of cancellation of games by Buffalo Bills due
to strike).

Furthermore, we 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

22
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. There are also rules governing the off-field conduct of the
football team, such as salary “caps” and the prohibition against
“tampering” with the employer-employee relationships between
another team and its players and coaches. Mayer further does
not appear to contest the fact that a team is evidently permitted
by the rules to engage in a wide variety of arguably “dishonest”
conduct to uncover an opponent’s signals. For example, a team
is apparently free to take advantage of the knowledge that a
newly hired player or coach takes with him after leaving his
former team, and it may even have personnel on the sidelines
who try to pick up the opposing team’s signals with the
assistance of lip-reading, binoculars, note-taking, and other
devices. In addition, even Mayer acknowledged in his amended
complaint that “[t]eams are allowed to have a limited number of
their own videographers on the sideline during the game.”
(A21.)

In fact, the NFL’s own commissioner (like the boxing
officials in Castillo and the various parties in Bowers) did
ultimately take action here. He found that the Patriots and
Belichick were guilty of violating the applicable NFL rules,
imposed sanctions in the form of fines and the loss of draft
picks, and rather harshly characterized the whole episode as a
calculated attempt to avoid well-established rules designed to
encourage fair play and honest competition. 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

23
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 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.’”). Under the circumstances,
public policy considerations evidently weigh against Mayer and
his various claims. See Garifine, 461 A.2d at 1137-38.

In conclusion, this Court will affirm the dismissal of
Mayer’s amended complaint. Again, it bears repeating that our
reasoning here is limited to the unusual and even unique
circumstances presented by this appeal. We do not condone the
conduct on the part of the Patriots and the team’s head coach,
and we likewise refrain from assessing whether the NFL’s
sanctions (and its alleged destruction of the videotapes
themselves) were otherwise appropriate. We further recognize
that professional football, like other professional sports, is a
multi-billion dollar business. In turn, ticket-holders and other
fans may have legitimate issues with the manner in which they
are treated. See, e.g., Charpentier, 75 Cal. App. 4th at 314 (“It is
common knowledge that professional sports franchisees have a
sordid history of arrogant disdain for the consumers of the
product.” (footnote omitted)). Significantly, our ruling also does
not leave Mayer and other ticket-holders without any recourse.
Instead, fans could speak out against the Patriots, their coach,
and the NFL itself. In fact, they could even go so far as to refuse
to purchase tickets or NFL-related merchandise. See, e.g.,
Bowers, 489 F.3d at 321 (noting possible effects of bad
reputation on future prospects of sport); Seko, 22 F.3d at 774
(stating that, “instead of going to the Cubs game, the fan may

24
head south for Comiskey Park and the White Sox”). However,
the one thing they cannot do is bring a legal action in a court of
law.

V.

For the foregoing reasons, we will affirm the District
Court’s order dismissing Mayer’s amended complaint in its
entirety.

25