Because the majority's analysis incorrectly focuses on what the plaintiffs thought (or claim they thought) they were being offered, rather than the language of the offer itself, I dissent.
It is entirely understandable why some Bengals fans, caught up in the excitement of the new stadium and eager to own a "piece of the jungle," would have read the First Fans brochure, sent in their deposit, and felt that they had already purchased a COA. The fans' expectations, however, cannot take precedence over the language of the offer itself. When examined literally, the language of the First Fans brochure offered only three things in return for a nonrefundable deposit: (1) an opportunity to pick a desired seat location in a designated zone, (2) priority in seat assignments according to seniority among *Page 527 season-ticket holders when seat selection was ultimately made, and (3) an opportunity to accept the zone assignment according tothe terms of the COA. Completion of the purchase was expressly made conditional upon the fan accepting the terms of the COA contract. Because it is clear to me that the plaintiffs decided to go forward with the purchase of their seats after receiving their zone assignments and the COA, I would hold that the plaintiffs assented to the arbitration clause contained in the COA. Thus, although their substantive claims may well have merit, I believe the plaintiffs should be required to submit them to arbitration as they agreed.
It is well settled that an acceptance cannot materially alter the terms of the offer. I am at a loss to understand how the majority can simply wink at the plain language of the First Fans brochure that they quote. That language states clearly that fans wishing to receive a priority seat assignment needed to "submit an official COA application." According to Black's Law Dictionary, an application is "[t]he act of making a request for something." Black's Law Dictionary (5 Ed. 1991), 90. In the majority's view, however, this act of requesting something became the making of the contract itself — the handshake, if you will, that sealed the deal.
The brochure also required fans to include a deposit with their application. For the majority, this deposit was consideration for the COA itself. I cannot understand, however, how a deposit accompanying an application ("a request") for an opportunity to review a prospective zone assignment according to the terms of a COA that had yet to be exchanged between the parties could have had the binding effect the majority grants to it.
In my view, the only proper way to treat the deposit is as a non-refundable application fee to be applied to the purchase price of the COA if the applicant decided to go forward with the purchase after reviewing the zone assignment and the COA. While this view may be harsh, it is exactly what was explained to the fans in the brochure. The brochure told the fans that, in return for their application, they would receive a COA contract and that the "COA contract w[ould] outline all terms and conditions of the COA agreement." The fans were told also that if, after receiving the COA with its terms and conditions, they decided not to go forward with a purchase by making further payment, "you will forfeit all previous payments and all right to your COA(s)."
Concededly, these terms involved a potential forfeiture should the fans have paid their deposit and then discovered either the zone assignment or the terms of the COA were not to their liking. A forfeiture is generally not favored in the law. Indeed, the law is said to abhor a forfeiture. The exception, though, is when the parties freely contract for the potential forfeiture. In my view, the application sent in by the plaintiffs was analogous to the purchase of an option. An option is *Page 528 a traditional method in which an offer is kept open for a specific period of time if the purchaser pays the offeror a fee. If the purchaser pays the fee, the offeror cannot revoke the option. It is a collateral contract that is strictly construed in favor of the offeror and must be accepted in accordance with its terms. Brumm v. McDonald Co.Securities, Inc. (1992), 78 Ohio App.3d 96, 98, 603 N.E.2d 1141, 1142, fn. 1. See, also, Calamari and Perillo, Contracts, (2 Ed. 1977), Section 2-27, 88-91.
In an option contract, moreover, the fee is forfeited if the offeree does not exercise the option, as its very purpose is consideration for the privilege of keeping the offer open for a certain stated period of time. This practice is common, for example, in real estate transactions where the earnest money, deposited in escrow, is forfeited if the prospective purchaser backs out of the agreement to purchase.
Accordingly, I would hold that there was no purchase of the COA involved in the application process. The First Fans brochure was, in my view, a solicitation for applications for COAs accompanied by non-refundable application fees. This being so, I believe it is quite clear that each plaintiff, after receiving a COA and sending in the balance of the money due, expressed assent to the terms of the COA, including the arbitration clause. Significantly, none of the plaintiffs alleged that they intended to reject, or in any way repudiate, the terms and conditions of the COA once they received it along with their zone assignments. It is noteworthy that Reedy filed his complaint on September 15, 2000, three home games into the season, and five days after the first regular-season loss to the Cleveland Browns. It is, indeed, one of the ironies of this case that the arbitration clause has now become the focal point of controversy when there is no evidence that it was even remotely considered a sticking point in the past.
As noted, the fans had been told in the brochure that they must agree to the terms and conditions of the COA in order to complete the transaction. One of those terms was the arbitration clause that the plaintiffs now seek to avoid. That clause clearly stated the following:
Arbitration. Any dispute or controversy arising out of or in connection with the COAs and these terms or otherwise concerning the relationship between Licensor and Licensee or the Bengals and Licensee, whether arising in contract, tort, or otherwise, shall be submitted to, and decided by arbitration under the rules of the American Arbitration Association. Venue for any arbitration proceeding shall be a reasonable location within Hamilton County, Ohio. The losing party in any such proceeding shall pay the costs thereof, including reasonable attorneys' fees.
Furthermore, the fans were twice admonished that by sending in further payment they were expressing their acceptance of the COA's terms, first in the *Page 529 general summary that preceded the text and then in Paragraph 12, which stated, "[P]ayment by Licensee of the next installment of the COA Fee due hereunder after deliverance of these terms to Licensee shall constitute, and conclusively be deemed to be acceptance of these terms by Licensee." All the plaintiffs — presumably after having read the COA — sent in their remaining payments.
Since I believe that the COA was the only contract in this case, I do not find relevant the arguments advanced by the plaintiffs, and accepted by the majority, that the COA added terms to an earlier agreement between the parties. As I have noted, the First Fans brochure offered only a limited benefit to an applicant for a COA: an opportunity to review a proposed zone assignment, based upon priority among season-ticket holders, and to decide whether to accept the zone assignment according tothe terms of the COA. Clearly the COA, which had yet to be exchanged between the parties, was intended to be the actual contract of purchase. To suggest that the COA contained "additional" terms is to presume an earlier contract that existed only in the minds of fans who did not read carefully the terms of the brochure.
For similar reasons, I do not find persuasive the plaintiffs' argument that the arbitration clause was an unconscionable adhesion clause. When parties send in non-refundable money to apply for something to be sold to them under terms they have yet to see, they accept an inherent risk that some of those terms may not be to their liking. The risk, in my view, is calculated. The acceptance of that risk is an act of free will. Whether it was wise for the plaintiffs to have sent their deposit in under such circumstances is not for this court to decide.
The plaintiffs maintain that if the COA was to contain an arbitration clause precluding their judicial remedies, some reference to it should have been in the First Fans brochure. I agree that such a warning would have made their decision to apply for a COA more informed; however, I can find no law that required the County or the Bengals to include such a warning in the brochure. Significantly, the majority, which accepts this argument, cites no law to support it. The plaintiffs also appear to make the argument that the arbitration clause was unconscionable because it did not spell out the costs of arbitration to the consumer. This argument would have merit only if the plaintiffs were required to advance extraordinary costs to arbitrate their small individual claims, or if their ability to hire a lawyer was substantially impaired because expensive hearing fees were required in advance. Williams v. Aetna Fin.Co. at 473, 700 N.E.2d at 866. Neither of these two factors has been demonstrated in this case.
While the right to a jury trial is a constitutional right of the highest importance, public policy, as the majority has noted, also favors arbitration when the parties agree to it, as I am convinced they did here. Kelm v. Kelm (1993), 68 Ohio St.3d 26, *Page 530 27, 623 N.E.2d 39, 40-41. In this case, arbitration would provide the parties with a much more expeditious means of resolving their individual disputes than the proposed class action that has already disrupted the selling of tickets for the 2001 season. The majority has enjoined the Bengals, during the course of this litigation, from conducting the team's normal business with owners of 2001 seat licenses. The effect of their holding today is to prolong this disruption as the parties gear up for a protracted litigation that will only further intrude upon the business affairs of the Bengals and the National Football League.
In sum, I believe that the majority and the trial court have improperly exalted the unjustified expectations of the plaintiffs over the language of the offer contained in the First Fans brochure. Throughout its decision, the majority hastens to point out that the plaintiffs' expectations were not unreasonable. I agree that their expectations were not unreasonable — no one is accusing the plaintiffs of dealing in absurdities. The question, though, is not whether the plaintiffs' expectations were reasonable, but whether they were legally justified. The answer to that question lies not in what was in the plaintiffs' minds, but in what was said in the brochure.
I would hold, therefore, that the First Fans brochure offered merely an opportunity to review the COA and a zone assignment, in exchange for a non-refundable application fee that would be applied to the purchase price should an applicant decide to accept the terms of the COA, including the arbitration clause. Since all the plaintiffs agreed to those terms when they tendered full payment after receiving their COAs, I would reverse the judgment of the trial court and grant the stay pending arbitration pursuant to R.C. 2711.02.
Please Note:
The court has placed of record its own entry in this case on the date of the release of this Decision.