Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed July 15, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00769-CV
IN RE HOUSTON ASTROS, LLC AND HOUSTON ASTROS
MANAGEMENT, INC., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
152nd District Court
Harris County, Texas
Trial Court Cause No. 2020-10637
MEMORANDUM OPINION
On November 12, 2020, relators Houston Astros, LLC and Houston Astros
Management, Inc. (collectively, “the Astros”) filed a petition for writ of mandamus
in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In
the petition, relator asks this court to compel the Honorable Robert Schaffer,
presiding judge of the 152nd District Court of Harris County, to set aside his
September 2, 2020 order denying the Astros’ Rule 91a motion to dismiss the
plaintiffs’ claims.1 We conditionally grant the petition.
BACKGROUND
During baseball games, pitchers and catchers use a series of “signs” to
communicate the type of pitch being thrown, and the intended speed, movement, and
location of the pitch. Olson v. Major League Baseball, 447 F. Supp. 3d 159, 164
(S.D.N.Y. 2020). Keeping the signs secret from batters is critical to a pitcher’s
success because such knowledge or which pitch is coming improves the batter’s
chances of hitting the ball. Id. While sign-stealing is not prohibited per se, Major
League Baseball (“MLB”) rules and regulations prohibit using electronic devices to
view or convey information. Id. All MLB member clubs have entered into an
operating agreement pursuant to which the teams agree to be bound by the rules and
regulations of MLB, including its electronic sign-stealing rules. Id.
In November 2019, former Astros pitcher Mike Fiers publicly alleged in an
article published by The Athletic that the Astros had engaged in prohibited sign-
stealing methods in 2017. Rob Manfred, the Commissioner of the MLB, initiated
an investigation covering the period of 2016 to 2019. On January 13, 2020, Manfred
issued his report, in which he concluded that the Astros had been involved in stealing
opposing teams’ signs by electronic means in violation of MLB rules. The MLB
imposed sanctions on the Astros.
1
See Tex. R. Civ. P. 91a. The real parties in interest are Adam Wallach, Roger Contreras,
Kenneth Young, and all others similarly situated.
2
In a consolidated proceeding, the plaintiffs sued the Astros on behalf of 2016,
2017, 2018, and 2019 full and partial season ticket holders for knowingly,
intentionally, and deceptively selling season tickets with full knowledge that Astros
employees and representatives were surreptitiously engaged in a sign stealing
scheme in violation of MLB rules. The plaintiffs claim that, had they known about
the Astros’ sign stealing scheme and subsequent MLB investigation, they never
would have purchased season tickets, post-season tickets, or other goods and/or
services from the Astros.
The plaintiffs allege claims for fraud by nondisclosure, violations of the
Deceptive Trade Practices Act, money had and received, and unjust
enrichment/assumpsit. They seek damages and equitable relief for (1) the amounts
they paid for 2016, 2017, 2018, and 2019 season tickets, 2017, 2018, and 2019 post-
season tickets, parking, promo packs, ticket printing services and/or other goods
and/or services purchased from the Astros; (2) the diminished value of personal seat
licenses; (3) treble damages; (4) punitive damages; and (5) attorney’s fees, litigation
expenses, and court costs.
The Astros filed a Rule 91a motion to dismiss. The Astros argued that the
plaintiffs have no justiciable interest in a baseball game of a particular nature and
quality and free from violations of MLB rules. In other words, the plaintiffs cannot
maintain a lawsuit for their disappointment over how the Astros played the game.
The plaintiffs responded to the motion to dismiss, asserting that this case is
not about what happened on the field, but the Astros’ “intentionally deceiving season
ticketholders, their most coveted patrons, into purchasing tickets, parking,
concessions, and other goods and services at supra[-]premium prices over multiple
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years.” The plaintiffs assert that they never would have purchased tickets had they
known that the Astros were cheating.
The trial court denied the Astros’ Rule 91a motion to dismiss.
MANDAMUS STANDARD OF REVIEW
Ordinarily, to be entitled to a writ of mandamus, relators must show that the
trial court clearly abused its discretion, and that they lack an adequate remedy by
appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per
curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law or if it clearly
fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B.
Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per
curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). Mandamus relief is appropriate when the trial court
abuses its discretion in denying a Rule 91a motion to dismiss. In re Farmers Tex.
County Mut. Ins., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding).
RULE 91A STANDARD OF REVIEW
“Under Rule 91a, a party may move for dismissal on the ground that a cause
of action has no basis in law.” Id. “Dismissal is appropriate under Rule 91a ‘if the
allegations, taken as true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought ... [or] no reasonable person could believe
the facts pleaded.’” City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016)
(quoting Tex. R. Civ. P. 91a.1). “Whether the dismissal standard is satisfied depends
‘solely on the pleading of the cause of action.’” Id. (quoting Tex. R. Civ. P. 91a.6).
4
The appellate court reviews the merits of a Rule 91a motion de novo because the
availability of a remedy under the facts alleged is a question of law and the rule’s
factual-plausibility standard is akin to a legal-sufficiency review. Id.; see also
Farmers Tex. County Mut. Ins., 621 S.W.3d at 266 (“We review the merits of Rule
91a ruling de novo; whether a defendant is entitled to dismissal under the facts
alleged is a legal question.”). The dismissal grounds under Rule 91a have been
analogized to a plea to the jurisdiction, which requires a court to determine whether
the pleadings allege facts demonstrating jurisdiction. City of Dallas, 494 at 724–25.
“In ruling on a Rule 91a motion to dismiss, a court may not consider evidence but
‘must decide the motion based solely on the pleading of the cause of action, together
with any [permitted] pleading exhibits.’” Farmers Tex. County Mut. Ins., 621
S.W.3d at 266 (quoting Tex. R. Civ. P. 91a.6).
ANALYSIS
The Astros contend that the plaintiffs’ claims based on the sign-stealing
controversy are not legally recognized causes of action.2 Specifically, the Astros
assert that the plaintiffs’ claims are based on what happened on the field of play.
While this issue has not been addressed in Texas, the Third Circuit Court of Appeals
2
Attached to the motion to dismiss were copies of 2016, 2017, 2018, 2019, and 2020 game
tickets, copies of the auto-renewal recurring payment authorization, and copies of the Astros’
season ticket terms and conditions for 2017, 2018, 2019, and 2020. These documents were not
attached to the plaintiffs’ consolidated complaint and, therefore we may not consider this evidence
in our review of the trial court’s ruling on the Rule 91a motion to dismiss. See Farmers Tex.
County Mut. Ins., 621 S.W.3d at 266 (stating court may not consider evidence attached to Rule
91a motion to dismiss, but “must decide the motion based solely on the pleading of the cause of
action, together with any [permitted] pleading exhibits.” (quoting Tex. R. Civ. P. 91a.6).
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addressed analogous facts involving a cheating scandal of a National Football
League (“NFL”) team. See Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2020).
In Mayer, the plaintiff, a New York Jets season ticket holder, sued the New
England Patriots and its head coach Bill Belichick for claims arising from the
“Spygate” scandal. Id. at 225.3 The Spygate scandal arose when it was discovered
that the Patriots were surreptitiously videotaping the signals of their opponents. Id.
On September 9, 2007, the Jets and Patriots played the season opener in Giants
Stadium. The plaintiff had tickets and parking passes to the game, which the Patriots
won. Id. at 226. ESPN.com then reported that the NFL was investigating
accusations that a Patriots employee was videotaping the signals given by Jets
coaches at this game. Id. NFL security reportedly confiscated a video camera and
videotape from an employee during the course of the game and the 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. Id. The NFL found that the Patriots
had violated NFL rules by videotaping the signals. Id.
The plaintiff brought the following claims against the Patriots and Belichick:
(1) tortious interference with contractual relations; (2) common law fraud;
(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; (6) the infringement of the rights of ticket-holders as
third-party beneficiaries; (7) breach of implied contract or quasi-contract; and
3
The plaintiff in Mayer also sued the NFL for breach of contract for the destruction of
videotapes. 605 F.3d at 229–30. The NFL filed its own motion to dismiss. Id. at 229.
6
(8) violations of the New Jersey Consumer Fraud Act. Id. at 228. The plaintiff also
sued the NFL for breach of contract for the destruction of the videotapes. The
plaintiff sought damages for Jets tickets holders for all games in Giants Stadium
between the Jets and the Patriots since Belichick became head coach in 2000. Id.
The Patriots and Belichick filed a motion to dismiss for failure to state a claim.
Id. at 229. The district court granted the motions to dismiss. Id. The issue was
whether the plaintiff had stated an actionable injury resulting from the videotaping
program undertaken by the Patriots and Belichick. Id. at 230.
On appeal, the court observed that, “[a]t their most fundamental level, the
various claims alleged here arose out of the repeated and surreptitious violations of
a specific NFL rule.” Id. at 225–26. The court concluded that, at best, the plaintiff
possessed nothing more than a contractual right to a seat from which to watch an
NFL game between the Jets and the Patriots. Id. at 230. In reaching its conclusion,
the court took the “license approach.” The ticket stub unambiguously stated that
“[t]this ticket only grants entry into the stadium and a spectator seat for the specified
NFL game.” Id. at 231. The stub further made clear that the Jets and the owners of
the stadium retained the sole discretion to refuse admission or to eject a ticket holder.
Id. Because the plaintiff was never barred or expelled from any game at Giants
Stadium, much more was needed to establish a cognizable right, interest, or injury
than these kinds of inapposite statements. Id. at 231–32.
The appeal was “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 [the plaintiff] and his fellow ticket-holders
7
because of the secret and illicit videotaping program undertaken by the Patriots and
Belichick).” Id. at 232.
The court stated that the plaintiff 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. Id. at 236. The plaintiff was allowed to enter the
stadium and witnessed the “specified NFL game[s]” between the Jets and the Patriots
and, therefore, suffered no cognizable injury to a legally protected right or interest.
Id. The court recognized that the plaintiff 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.” Id.
The NFL’s Commissioner ultimately took action, finding that the Patriots and
Belichick were guilty of violating the applicable NFL rules, imposing sanctions in
the form of fines and loss of draft picks, and “characteriz[ing] the whole episode as
a calculated attempt to avoid well-established rules designed to encourage fair play
and honest competition.” Id. at 236–37. The court explained that it is not the role
of judges and juries to second guess the decision taken by a professional sports
league purportedly enforcing its own rules. Id. at 237. “In fact, we generally lack
the knowledge, experience, and tools in which to engage in such an inquiry. Id.
Here, the plaintiffs contend that their claims are based on statements off-the-
field of falsely portraying the Astros as a team that has integrity for example with its
“Earn History” slogan, instead of a team that had been cheating for years. The
plaintiffs claim that they were induced into purchasing season tickets by the Astros’
misrepresentations. The plaintiffs, however, asserted in their consolidated petition
that “Astros fans, including Plaintiffs, once filled with pride and honor for their
8
Team, are grappling with embarrassment, disappointment, shame, and disgrace for
a team they once believed represented their community, represented them.”
From their consolidated petition, it is clear that the plaintiffs’ claims arise
from the way the Astros’ played the game and the plaintiffs’ “embarrassment,
disappointment, shame, and disgrace” of the sign-stealing scandal despite their
attempts to couch their claims in terms of off-the-field misrepresentations. See
Mayer, 605 F.3d at 233 (“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[.]”).
In Texas, a ticket to a baseball game is a revocable license. Cf. Hegar v. Am.
Multi-Cinema, Inc., 605 S.W.3d 35 (Tex. 2020) (stating that theater transfers to its
patrons revocable license to watch film). The plaintiffs have not asserted that they
were denied the right of entry into Minute Maid Park or to sit in the seats for which
they purchased tickets. See Antonio Le Mon v. Nat’l Football League, 277 So.3d
1166, 1168–69 (La. 2019) (holding that New Orleans Saints fans did not belong to
class of persons with cause of action to recover from alleged fraud and deceptive
trade practices committed by NFL and its officials during game―ticket merely
granted license to right to entry and seat at game and fans did not allege denial of
these rights); Ibe v. Nat’l Football League, No. 3:11-CV-248-M, 2014 WL 4906886,
at *5 (N.D. Tex. Sept. 30, 2014) (stating that in event of revocation of ticketholder’s
license, his only remedy lies in breach of contract (citing Kelly v. Dent Theaters,
Inc., 21 S.W.2d 592, 594 (Tex. App.―Waco 1929, no writ); Deprez v. Brewer, No.
9
05-94-01540-CV, 1995 WL 547094, at *3 (Tex. App.―Dallas Sept. 8, 1995, no
writ))).
CONCLUSION
The plaintiffs claim that the Astros misrepresented how they played the
game―that they played with integrity instead of cheating. In their consolidated
petition, the plaintiffs expressed their disappointment and shame over the Astros’
stealing opposing teams’ signals. Claims based on how a sports team plays the game
are not cognizable. See Mayer, 605 F.3d at 233. Therefore, plaintiffs have not
alleged legally cognizable claims on which they may recover damages.
Furthermore, the plaintiffs cannot maintain their claims because they were only
granted a revocable license to enter Minute Maid Park to watch the games in the
seats for which they had purchased tickets and do not allege that they were denied
those rights. See Antonio Le Mon, 277 So.3d at 1168–69.
We hold that the trial court abused its discretion by denying the Astros’ Rule
91a motion to dismiss and the Astros do not have an adequate remedy by appeal.
See Farmers Tex. County Mut. Ins., 621 S.W.3d at 266. Accordingly, we
conditionally grant the Astros’ petition for writ of mandamus and direct the trial
court to set aside the September 2, 2020 order denying the Astros’ Rule 91a motion
to dismiss. We further order the trial court to grant the motion and dismiss the
plaintiffs’ claims for 2016, 2017, 2018, and 2019 season tickets, 2017, 2018, and
2019 post-season tickets, parking, promo packs, ticket printing services and/or other
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goods and/or services purchased from the Astros.4 We are confident that the trial
court will act in accordance with this opinion and the writ will issue only if the court
fails to do so.
PER CURIAM
Panel consists of Justices Wise, Bourliot, and Wilson.
4
The plaintiffs also sued the Astros for a refund for 2020 season tickets and incidentals.
Because the Astros subsequently offered refunds on those games, their petition for writ of
mandamus does not include claims for refunds for the 2020 season.
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