Super Bowl Tickets Not the Ticket to Federal Class Action, as Third Circuit Finds No Standing for Uninjured Plaintiffs

“[T]he disappointment of wanting to attend a concert or athletic event only to discover that the event has sold out,” does not confer constitutional standing. That was the take away from the Third Circuit Court of Appeals recent precedential decision, Finkelman v. Nat’l Football League. Addressing the always-thorny contours of constitutional standing to bring a federal lawsuit, the Court held, in the face of high Super Bowl ticket prices, that neither non-purchasers of tickets nor purchasers of “scalped” tickets at elevated prices, had standing to sue under Article III. This opinion sets up yet another obvious roadblock in the path of plaintiffs looking to bring claims—whether or not as class actions—when their perceived injuries are either non-existent or so tenuous as to make “difficulties in alleging an injury-in-fact . . . insurmountable.”

The Plaintiffs, football fans who wanted to attend Super Bowl XLVIII at New Jersey’s MetLife Stadium in February 2014, claimed that “the NFL distributed 99% of Super Bowl tickets to NFL teams and League insiders.” The fraction that was left for the general public was only offered via lottery, the prize being the ability to buy a ticket to the Super Bowl for $800.00 per ticket.

Neither Plaintiff entered the lottery. Instead, one plaintiff purchased two tickets in the resale market for $2,000.00 each and the second plaintiff didn’t buy any at all because they were too expensive. Both Plaintiffs, however, sued the NFL under the New Jersey Ticket Law, which declares it an “unlawful practice” under the New Jersey Consumer Fraud Act “for a person, who has access to tickets to an event prior to the tickets’ release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5% of all available seating for the event.”

In taking up the District Court’s dismissal of the case, the Third Circuit focused squarely on “whether plaintiffs have alleged facts which, if true, would be sufficient to establish Article III standing.” As explained by the Court, “[t]o establish Article III standing, a plaintiff must demonstrate (1) an injury-in-fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Without satisfying Article III, federal courts do not have the authority to handle the case.

Ultimately, the Court determined that neither plaintiff had standing to sue. The Plaintiff who hadn’t even purchased a ticket, suffered no out-of-pocket loss and was thus easily and quickly determined not to have suffered an “injury-in-fact” and therefore to lack standing. This Plaintiff attempted to make a secondary argument, that he suffered a “lost opportunity” through his inability to attend the Super Bowl. However, the Court rejected this as well: “[T]here is . . . an insufficient connection between [Plaintiff’s] claimed injury (the loss of an opportunity to attend the Super Bowl) and the challenged conduct (withholding tickets).” The Third Circuit bluntly explained that “[i]f the Court were to credit [Plaintiff’s] concept of injury, everyone who contemplated buying a Super Bowl ticket but decided against it would have standing to bring a claim under the Ticket Law.”

The Plaintiff who had paid for tickets was given slightly more consideration by the Third Circuit. However, his case, too, was thrown out. The Court first assumed that this Plaintiff indeed bought two $2,000.00 tickets in the resale market, which each had an $800.00 face value. It then proceeded, somewhat uniquely among courts addressing standing, to focus on causation and whether the price differential was caused by the NFL’s alleged misconduct. The Court articulated (and rejected) two arguments on behalf of this Plaintiff. First, the Plaintiff could not fairly allege that the NFL thwarted his ability to buy a face-value ticket because this Plaintiff never actually entered the NFL-sponsored ticket lottery. “As a result,” the Third Circuit explained, “there was always a zero percent chance that he could procure a face-price ticket.” A zero percent chance that was of the Plaintiff’s own making.

Second, the Court considered the argument that “[i]nstead of thinking of [Plaintiff’s] injury as his inability to acquire a face-price ticket, we might focus instead on the increased price he allegedly paid for his tickets on the resale market.” Meaning, “but for the NFL’s alleged wrongdoing, the price [Plaintiff] paid for a resold ticket would have been cheaper.” Unfortunately for the Plaintiff, the Third Circuit noted that “[d]emand for tickets to the Super Bowl is so high that those tickets command . . . several times their face price in the resale market,” and “while it might be the case that the NFL’s withholding increased ticket prices on the resale market, it might also be the case that it had no effect on the resale market.” Simply put, the Plaintiff’s argument—that the NFL’s ticket-sales policies unlawfully inflated the face-value of the tickets he bought on resale—was “conjectural and speculative.”

Although this case does not tread remarkably new legal ground, it illustrates the importance of standing in federal litigations and underscores the reality that, whether or not an injury-in-fact is established, plaintiffs must still allege sufficient causation (and redressability) to pass through the gates of Article III.

In any case, although the Third Circuit has made its decision here, federal courts’ interpretations of Article III standing are continually in flux. The Supreme Court heard oral argument this term in Spokeo, Inc. v. Robins on the foundational question of whether Congress can itself confer Article III standing by statute on plaintiffs who haven’t suffered any concrete injuries. A decision on that question—which could affect the law as it currently stands here in New Jersey and in the Third Circuit—will be announced by early summer.