Baseball Fans Aren't As Loyal As They Used to Be

In the classic scope of employment case, Manning v. Grimsley, plaintiff was hit by a fastball presumably thrown into the stands because relief pitcher Ross Grimsley had heard enough comments on his pitching abilities.  If you check his stats for that year, you'll find that he was among the league leaders in intentional torts.  But the point is, plaintiff, a Red Sox fan, did not sue the Red Sox for failure to maintain the fencing/netting separating players from fans.  Plaintiff sued the Baltimore Orioles who employed the irascible Grimsley.  

But Laiah Zuniga, injured by a foul ball at Wrigley Field, home to the Chicago Cubs, winners of the 2016 World Series, and, let's assume, many others, sued the home team!

In Zuniga v. Major League Baseball, decided last week, an Illinois Appellate Court upheld a trial court's ruling, denying defendants' (Major League Baseball and the Cubs) motion to compel arbitration.  My students in Section 4 will be outraged.  They call themselves the back-of-the-ticket readers, and they insist that they always read the fine print and will even take their business elsewhere if they don't like the terms they find there.  Ms. Zuniga would not last a day in Section 4.  She didn't read the back of her ticket, and so she did not see the warning about the need to stay alert because foul balls could come her way.  Nor did she take note of the clause providing for mandatory arbitration of disputes.  More shocking still, she did not visit the Cubs' website, where she could have read a more comprehensive version of the team's mandatory arbitration provision.  The opinion provides that arbitration agreement in full, but tbh, tl;dr.

The trial court denied defendants' motion to compel arbitration, finding it procedurally unconscionable.  Yes, you read that right.  In Illinois, a court can strike down a contract or a provision if it is substantively unconscionable, procedurally unconscionable or both.  The arbitration clause was in tiny print and thus was too difficult to read and understand, perhaps even for the intrepid members of Section 4.   

The Illinois Appellate Court agreed.  Its analysis was very context specific and detailed, akin to the "micro-analysis" that courts undertake in the context of wrap contracts, as discussed in Nancy Kim's work, about which we posted yesterday.  The court found enough procedural unconscionability in the back-of-the-ticket terms to render the arbitration provision unenforceable.  For good measure, the court also found elements of substantive unconscionability, in that plaintiff had inadequate time to opt out of the mandatory arbitration provision.  That double-whammy may be enough to deter defendants from appealing to the Illinois Supreme Court.  

If they nonetheless do so, I wonder if they have preserved an objection to the Illinois rule accepting either procedural or substantive unconscionability as sufficient to render a contract or some of its provisions unenforceable.  If any party would have the wherewithal and motivation to do so, it would be MLB and the Cubs. I can see the argument for refusing to enforce substantively unconcscionable contracts without more, although I think a court would always be able to find some procedural unconscionability if a contract is substantively unconscionable.  Why would a party agree to one-sided terms if they had bargaining power?  But if your only objection is procedural unconscionability, how are you harmed by terms that are not materially unfair?  In this case, it just doesn't seem plausible for plaintiff to argue that, but for the procedural unconscionability, she never would have accepted her ticket if she had known that her claims would be sent to arbitration.

I also wonder why plaintiff thinks she is better off in court than in arbitration.  In a court, she might come away with nothing based on assumption of risk, especially if she gets a jury unsympathetic to a plaintiff who failed to bleed Cubbie blue.  Can one request a change of venue to the South Side?  Moreover, she alleges that she was eating a sandwich that she bought at the stadium when she was hit by the foul ball.  To me, eating stadium food goes beyond assumption of risk.  It's reckless.  An arbitration is more likely to lead to some recovery, at least in my limited experience.  Thoughts welcome in the comments.

[Hat Tip to my former student, Don Dechert]