Court to Examine NFL's Super Bowl Ticketing Policies
The NFL's Super Bowl ticketing policies will be put under a microscope this week when New Jersey's Supreme Court considers claims that the league violated state consumer fraud laws leading up to the 2014 game at MetLife Stadium.
If Josh Finkelman's challenge succeeds and the case ultimately prevails as a class action, the NFL could be liable for millions in damages to him and other ticketholders, his attorney said.
“He was forced to pay thousands of dollars a ticket where the face value is $800,” Bruce Nagel said. “People were paying five to 10 times the face value of the tickets. That's not right.”
Finkelman's lawsuit, filed in the weeks after Super Bowl XLVIII, cuts to the core of an issue that has bedeviled sports fans for decades: the league's practice of releasing roughly 1 percent of available tickets through a lottery, with the rest going to the teams, sponsors and other insiders.
Finkelman claims the practice violates a New Jersey law — since repealed — that required 95 percent of tickets to be made available to the public.
His suit was dismissed twice by a U.S. District judge sitting in New Jersey who said Finkelman hadn't demonstrated the NFL's policies had caused him economic harm, partly since he hadn't entered the lottery.
But after Finkelman refiled the suit, the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled last December that the suit could go forward and directed New Jersey's Supreme Court to hear arguments on the applicability of the state law. Those arguments are scheduled for Thursday morning.
Finkelman “has overcome a very significant hurdle in that he's shown his legal standing to sue, meaning he's shown a cognizable injury,” said Daniel Wallach, a Miami-based attorney specializing in sports industry law. “But he now has a second obstacle that must be overcome.”
In his amended suit, Finkelman cited research by University of San Francisco sports economist Daniel Rascher alleging that insiders are more likely to re-sell tickets through brokers, who are more likely to charge higher prices than fans would charge to other fans. The NFL prohibits fans who win tickets through a lottery from re-selling tickets.
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If more tickets were available to the public, the suit contends, the prices on the secondary market would be lower.
The NFL called Rascher's theories speculative and wrote in a court filing that “there is simply no way of knowing whether the people and entities to whom the NFL distributed tickets to Super Bowl XLVIII were any less likely to sell their tickets on the secondary market than members of the general public would have been.”
An NFL spokesman didn't return a message seeking comment Wednesday.
According to Nagel, 95 percent of the roughly 82,000 tickets to the game could be subject to damages calculated by the difference between their face value and what the secondary market charged. That potential figure, well into the tens of millions, would be trebled under rules governing class actions, he said.
More hurdles await Finkelman if the state Supreme Court sides with him, however.
He would have to persuade a federal judge to grant class-action status, and survive additional motions by the NFL to throw the case out. Then he would have to prevail in front of a jury, unless the league opts to settle out of court.
“To use a football phrase, the game is barely in the middle of the first quarter, and the NFL remains a prohibitive favorite,” Wallach said.