In a ruling that raises questions about how teams can use paper game tickets to preempt personal injury litigation, an Illinois appellate court rejected an appeal by Major League Baseball and the Chicago Cubs over the use of a binding arbitration clause.
The case involves Laiah Zuniga, a woman in her late 20s who received ticket from her dad to the Cubs-New York Mets game at Wrigley Field on Aug. 27, 2018. While Zuniga was seated in the club box outfield section, a foul ball hit her in the face. The impact fractured bones and caused orthopedic, nerve and dental injuries. Zuniga required four days of hospitalization, followed by a couple of weeks of home care. During that time, she couldn’t engage in reading or other eye-straining activities.
Through her attorney, Tracy Brammeier of the Clifford Law Group, Zuniga sued MLB and the Cubs for negligence. Zuniga argued, among other things, that MLB and the Cubs disregarded known safety hazards and ignored “new research [showing] the risk of fans being hit and seriously injured by a foul ball at baseball games has increased since 1992”—including at Wrigley Field.
MLB and the Cubs moved to dismiss the lawsuit on grounds that Zuniga had assented to a binding arbitration clause. If enforceable, such a clause would bar Zuniga from proceeding in court; her only remedy would be through arbitration, a private forum generally thought to favor business defendants—some commentators argue, excessively so.
The front of Zuniga’s ticket featured Cubs-related artwork and information about the game: seating, pricing, a barcode and admonitions about refund and exchange policies. Printed on the ticket’s back was an advertisement, as well as six paragraphs of fine print summarizing “terms and conditions.”
The first paragraph noted that by using the ticket, the holder “agrees to the terms and conditions” that were readable in their entirety by either visiting www.cubs.com/ticketback or physically visiting the Chicago Cubs administrative office.
The third paragraph began with “WARNING,” in boldface type, and then mentioned in all caps that spectators should pay attention to baseballs and that the Cubs aren’t liable for spectator injuries.
Then two paragraphs later, it read in regular font: “Any dispute/controversy/claim arising out of/relating to this license/these terms shall be resolved by binding arbitration, solely on an individual basis, in Chicago, Illinois.”
In sworn testimony, Zuniga—who said she has never bought a baseball game ticket—acknowledged that she hadn’t read the fine print. However, she expressed that even if she had, she would not have known that “arbitration” meant she could not pursue a jury trial.
Had Zuniga pulled up the Cubs’ terms and conditions website, she could have read the eight-paragraph, more than 1,000-word “mandatory arbitration agreement and class action waiver,” which allows the ticketholder to reject arbitration if they notify the Cubs’ general counsel in writing within seven days of the game. The holder would have to write, “I reject the Arbitration Agreement contained in my Event Ticket” and include their “account number” with MLB.
Zuniga insisted this arrangement is unconscionable. She stressed, as the court put it, the “tiny type did nothing to highlight the importance of the arbitration provision.” Zuniga also criticized the “need to visit a separate website to ascertain the full terms and conditions being agreed to.” Further, she noted she couldn’t read due to her foul ball-inflicted eye injury and didn’t have an “account number” with MLB or the Cubs.
Appellate Judge James Fitzgerald Smith agreed with Zuniga. He emphasized that arbitration clauses are generally enforceable, even in instances when consumers are denied a chance to negotiate (a take-it-or-leave-it scenario, sometimes called a contract of adhesion) and even when clauses rely on legalese that might perplex an ordinary person. Yet Judge Smith reasoned that the Cubs’ approach was “procedurally unconscionable.”
Those reasons included:
— Zuniga couldn’t contractually accept the actual arbitration clause since it wasn’t on the ticket; at best, she acquiesced to a brief summary of that clause.
— The ticket used “very small type”, which Judge Smith estimated was only four-point font.
— The ticket used bold and all caps for certain summary terms but not for the arbitration clause summary.
— The summary “uses rather dense legal language to summarize the arbitration provision… while omitting any explanation that this means that a person who uses a ticket is giving up his or her legal right to a jury trial in court of any claim involving the Cubs or MLB.”
— Having to physically visit a team administrative office to read the actual clause is a strange and time-consuming demand of a fan, particularly since the ticket doesn’t even mention where the office is located.
— It is unreasonable, the judge opined, to expect a paper ticket holder—”who is quite likely in the commotion outside the baseball stadium at the time he or she looks at the ticket”—to jump on an Internet-ready device, manually type in the website address “and then read on that device terms and conditions that, when printed, comprise four-and-a-half single-spaced pages.” This point, Judge Smith stressed, distinguishes Zuniga’s situation from that of online consumers who are presented with terms and conditions as part of their online experience (and are given the choice to click “I accept”).
To be clear, Judge Smith’s ruling doesn’t establish that MLB and the Cubs are negligent. In fact, there’s a good chance they’ll eventually prevail. Courts often apply the so-called “Baseball Rule,” a legal doctrine that expresses so long as a ballpark meets industry safety standards (such as with safety netting and public address warnings), it is not liable for foul ball injuries. It remains to be seen how persuasively Zuniga can develop a theory of negligence. One thing is for certain: That pursuit will be before a court and, if it goes to trial, seen by a jury—not an arbitrator.