Patriots fan Daniel Vitale is taking his favorite football team to court over what he says was slipshod handling of his American flag signed by Tom Brady. His case raises unique questions about legal responsibilities with collectibles.
On Wednesday, Vitale filed a complaint in a Boston federal court against NPS, a Patriots-related limited liability company that manages the Patriots Hall of Fame. He alleges fraudulent misrepresentation, negligence, breach of contract and violation of Massachusetts’ consumer protection statute. The case centers on Vitale loaning the flag to the Patriots Hall of Fame last year for a Brady exhibit and what he argues are damages that exceed $1 million.
A New Hampshire resident, Vitale says he acquired the flag in early 2020 as an investment. The complaint doesn’t indicate how much he paid but does say Vitale claims Brady’s signature in blue sharpie “was pristine and in near perfect condition.” It also indicates that the flag has a certificate of authenticity and a Tri-Star Authentic hologram located between Brady’s signature and a commemorative patch.
The flag was flown at Foxboro Stadium on Dec. 22, 2001, when the Patriots hosted the Miami Dolphins. It was Brady’s second season in the NFL; he had become the Patriots’ starter a few months earlier after an injury to Drew Bledsoe, and he went on to lead the Patriots to an upset victory over the St. Louis Rams in Super Bowl XXXVI that year, the first of Brady’s six Super Bowl wins with New England. Vitale says the flag represents “a priceless piece of sports memorabilia and historical artifact of the storied New England Patriots dynasty.”
In 2021, Vitale contacted the NFL Hall of Fame about displaying it. The HOF declined, citing a lack of space, but said they would be interested in displaying it down the line when both Brady and Bill Belichick retired. The HOF encouraged Vitale to see if the Patriots HOF would display it in the meantime. Vitale says the Patriots HOF was very interested. They wanted to take custody of the flag in a loan agreement and display it next to Brady’s stolen Super Bowl jersey.
According to Vitale, Patriots HOF curator Kurt Evans assured him the jersey would be “curated to the highest standard,” consistent with a museum, and that Vitale would have access to it. Vitale signed a loan agreement which, Vitale says, stipulated NPS would use “accepted professional library and museum techniques and standards.” The agreement also obligated NPS to alert Vitale of problems as soon as reasonably practicable. Vitale recalls feeling confident enough in these assurances that he also agreed to a hold harmless clause and declined to buy insurance.
Vitale turned over custody of the flag in June 2021 but later learned the NPS display case, its glass and lighting were not designed “to protect autographed sports memorabilia.” One problem, Vitale maintains, was a gap in the glass that permitted passage of unfiltered light and heat. When Vitale visited the Patriots HOF a few months later, his flag was no longer displayed. He also noticed “a heavily faded George Bush autograph,” which sparked an employee to allegedly tell Vitale “I know, I’ve been telling them for years that they need to switch out the lighting and glass. It is not the right stuff for this type of display.”
In January 2022, Vitale sought an update from Evans about the flag, which Vitale says Goldin Auctions, a sports memorabilia company, wanted to feature. According to Vitale, Evans said there was “slight fading,” which he attributed to the flag’s exposure to air and “not at all due to lighting or the glass since they both are museum-quality and protective.”
Vitale then went to see the flag and was shocked by the fading. He claims Evans “apologized profusely” for the fading and said he was sorry he didn’t tell Vitale earlier. Another NPS employee allegedly told Vitale that the Hall of Fame was not, in fact, a museum. Vitale concluded that no one “employed by NPS had any background or expertise in memorabilia preservation, museum standards or the like.”
Vitale demands a jury trial. He seeks compensation for diminished value in the flag and, as permitted by Massachusetts’ consumer protection statute, treble damages for willingly and knowingly engaging in unfair and deceptive acts. He’s represented by Michael Lambert of Sheehan Phinney Bass & Green, Pa.
The Patriots declined to comment on the litigation. However, attorneys for the team/NPS will soon answer the complaint and seek its dismissal.
There are several likely defenses, including a dispute of Vitale’s retelling of events. The Patriots could maintain that Vitale’s recollection of alleged statements by NPS employees is inaccurate or distortive. He might have also omitted information more favorable to the team. Only one side of the story has been told.
In addition, the team can question whether the Brady signature was in the sterling condition Vitale claims it to be. A blue sharpie is not as durable as a black one, making it less favorable for collectibles. To the extent Brady’s signature was prone to fading on account of its ink type, the Patriots can argue its handling was not the cause of fading. The more the Patriots can depict their custody of the flag as reasonable under the circumstances, the better they can maintain their conduct was lawful.
Although the loan agreement is not available in court records, Vitale refers to a hold harmless (liability exclusion) clause. The clause could enable the Patriots to argue Vitale waived away the possibility of raising at least some of his claims.
The case has been assigned to Chief Judge Chief Judge F. Dennis Saylor, IV. He is also the presiding judge in Barstool founder Dave Portnoy’s defamation lawsuit against Insider.