Buyer beware! You might get more than you bargain for next time you use a ticket to enter a sporting event, concert, or VIP lounge. Most people do not realize that they can enter into a valid contract and be subject to its terms when they buy a ticket and use it to gain access to an event.

In the case of Abrogast v. Chicago Cubs Baseball Club, LLC, the Appellate Court of Illinois found that a photographer entered into a valid contract when he used a media credential to attend a Chicago Cubs baseball game, but that the arbitration clause written on the back of the credential was unenforceable and unconscionable.[1]

Facts of the Case

Charles Abrogast (“Plaintiff”) was injured while working as a credentialed photographer during a Chicago Cubs baseball game at Wrigley Field when he tripped on a stack of pallets that photographers would stand on to take pictures of the game from a designated photo well.[2]

Plaintiff later sued the Chicago Cubs claiming that the stack of pallets that he fell on was a hazardous condition on the premises that the Cubs knew or should have known about.[3] Plaintiff also claimed that the Cubs were negligent because they allowed this hazardous condition to exist on their premises, failed to warn of the existence of this hazard, and failed to construct a safe platform for photographers to stand on to take photographs.[4]

In response, the Cubs filed a motion to dismiss plaintiff’s lawsuit under Illinois Code of Civil Procedure section 2-619(a)(1) arguing that plaintiff entered into a valid and enforceable arbitration agreement with the Cubs, which required the matter to be resolved through a binding arbitration in New York rather than an Illinois court.[5]

As a professional photojournalist and a staff photographer for the Associate Press for at least 10 years, plaintiff had obtained access to Wrigley Field using a “media credential” with plaintiff’s name and photograph on the front that he was required to wear at all times.[6] Although the media credential gave plaintiff a license to take photographs of the game, it also contained terms and conditions on the reverse side which included a clause requiring plaintiff to arbitrate the dispute with the Cubs.[7]

Disputed Arbitration Clause & Cubs’ Motion to Compel Arbitration

The arbitration clause on the reverse side of Plaintiff’s media credential stated the following:

FOR MEDIA BEARERS AND ACCESS BADGE BEARERS ONLY: Unless prohibited by federal law, Bearer and the MLB Entities agree to arbitrate any and all Claims, except for Claims concerning the validity, scope or enforceability of this MANDATORY ARBITRATION AGREEMENT & CLASS ACTION WAIVER No. 1-23-0361 – 5 – (the ‘Arbitration Agreement’), through BINDING INDIVIDUAL ARBITRATION. *** BEARER AND THE MLB ENTITIES ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ALL DISPUTES SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS ….”[8]

The trial court denied the Cubs’ motion to dismiss as well as their motion to compel arbitration.[9] The Cubs appealed the trial court’s decision, and the Appellate Court of Illinois affirmed the trial court’s ruling. The Appellate Court found there was a genuine issue of material facts as to whether a contract ever existed between plaintiff and the Cubs, and left the resolution of the contract formation issues to the trial court.

However, on remand, the Cubs filed a Motion to Compel Arbitration pursuant to section 2(A) of the Uniform Arbitration Act to determine whether the Cubs had an enforceable arbitration agreement with plaintiff.[10] The trial court granted the Cubs’ request to conduct a summary proceeding to determine whether the parties entered into a valid arbitration agreement, which allowed the parties to conduct limited discovery on the validity and enforceability of the arbitration clause.[11]

Trial Court Finds Media Credential Creates Valid Contract Between Plaintiff and the Cubs

In support of their motion to compel arbitration, the Cubs argued that a valid contract was created between them when plaintiff used the “media credential” to gain access to the Wrigley Field.[12] The Cubs argued that the media credential plaintiff used to enter the game was a revocable license which created an agreement granting plaintiff admission to the baseball game in exchange for plaintiff’s acceptance of the terms and conditions on the media credential.[13]

The Cubs also argued that since a valid contract existed with plaintiff, that plaintiff should be equitably estopped from denying the formation of a contract on the grounds that his employer, the Associated Press, had obtained the credentials from the Cubs for him.[14] According to the Cubs, under the “direct benefits” theory of equitable estoppel adopted by federal courts, plaintiff directly benefitted from using the media credential to cover games at Wrigley Field as a “salaried photographer” and to “generate revenue” for the Associated Press.[15]

The trial court found that a valid contract existed between plaintiff and the Cubs and the terms and conditions on the back of the media credential were clear and unambiguous.[16] The court noted that since plaintiff used the media credential for three months before the incident, he had sufficient time to review and understand the terms and conditions.[17] The trial court also held that the arbitration clause was not procedurally unconscionable because the express language of the arbitration agreement was clear and unambiguous.[18] Therefore, the trial court granted the Cubs’ motion to dismiss and motion to compel arbitration.

Plaintiff Appeals Ruling to Appellate Court

However, plaintiff appealed the ruling of the trial court on two grounds: (1) there was no valid contract formed; and (2) if a contract was formed, then it was unconscionable. The appellate court upheld the trial court, finding that the trial court did not abuse its discretion in finding that a valid contract was formed based on the parties’ objective conduct, but found that the contract terms were unconscionable.[19]

Procedural Unconscionability

“Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it . . . . ”.[20] In rendering its decision, the appellate court considered the circumstances and manner in which the contract was formed, and determined that each party had a reasonable opportunity to understand the contract’s terms.

The appellate court also considered whether important terms were hidden or written in a very fine print, and found that the arbitration clause was  “buried” in the 22nd paragraph of the 25-paragraph agreement on the back of plaintiff’s media credential.[21] The appellate court found that there was nothing that would have made plaintiff aware of the need to discover or review the arbitration clause.[22]

Although the appellate court agreed that a contract was formed through plaintiff’s use of the media credential to access Wrigley Field, it also held that the arbitration provision was procedurally unconscionable because plaintiff cannot fairly be said to have been aware that he was agreeing to a binding arbitration simply by using the media credential.[23]

Substantive Unconscionability

“Substantive unconscionability concerns the actual terms of the contract and examines the relative fairness of the obligations assumed.”[24] Substantive unconscionability exists when contract terms are so one-sided as to oppress or unfairly surprise an innocent party or there is “an overall imbalance in the obligations and rights imposed by the bargain.”[25]

The appellate court referenced the decision in Zuniga v. Major League Baseball, in which the court found substantive unconscionability because the arbitration provision allowed an unreasonably short seven-day period for an injured person to opt out of arbitration, and required the ticket holder to include an account number in the request to opt-out, which the plaintiff did not have.[26] In Zuniga, the plaintiff had also suffered from an eye-related injury that prevented her from reading during the opt-out period.[27]

Here, the appellate court noted that plaintiff was hospitalized during the seven-day opt-out period and did not possess an account number, so the arbitration clause was also substantively unconscionable and further supported their conclusion that the Cubs’ arbitration clause was unenforceable.[28]

Appellate Court Finds Arbitration Clause Was Unconscionable

The appellate court reversed the trial court’s ruling that had granted the Cub’s motion to compel arbitration and remanded the case to the trial court for further proceedings. While the trial court did not abuse its discretion in finding that a contract was formed between the parties, the arbitration provision was procedurally and substantively unconscionable.

Takeaway

A valid contract can be formed when a ticket (or media credential) is used to access an event, but the terms and conditions of that contract may be unenforceable if they are unconscionable. Here, a contract was formed with the Cubs through plaintiff’s use of the media credential to access the event for his benefit, but the arbitration clause was unconscionable and unenforceable.

This means that you should always read the fine print whenever you buy a ticket, and if a party is attempting to enforce the terms of the ticket, those terms should be clear, conspicuous, and reading and understanding them must be reasonable under the circumstances. The ticketholder must also have sufficient time to decide whether to opt-out of the arbitration clause for the seller to enforce arbitration against them.

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Sources

[1] Arbogast v. Chicago Cubs Baseball Club, LLC, 2024 IL App (1st) 230361-U (unpublished opinion).

[2] Arbogast v. Chicago Cubs Baseball Club, LLC, 2021 IL App (1st) 210526, ¶ 3.

[3] Id.

[4]  Id.

[5] Id. at ¶ 4.

[6] Id. at ¶ 5.

[7] Id.

[8] Id. at ¶ 6.

[9] Id. at ¶ 14.

[10] Arbogast v. Chicago Cubs Baseball Club, LLC, 2024 IL App (1st) 230361-U, ¶ 3 (unpublished opinion).

[11] Id. at ¶ 14

[12] Id. at  ¶ 19

[13] Id.

[14] Id.

[15] Id. at ¶ 24

[16] Id.

[17] Id. at 23

[18] Id. at ¶ 24

[19] Id. at ¶ 41-51

[20] Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 22 (2006) (quoting Razor v. Hyundai Motor America, 222 Ill. 2d 75, 101 (2006)).

[21] Arbogast v. Chicago Cubs Baseball Club, LLC, 2024 IL App (1st) 230361-U, ¶ 48 (unpublished opinion).

[22] Id.

[23] Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 28 (2006)

[24] Id.

[25] Id.

[26] Zuniga v. Major League Baseball, 2021 IL App (1st) 201264 (2021).

[27] Id.

[28] Arbogast v. Chicago Cubs Baseball Club, LLC, 2024 IL App (1st) 230361-U, ¶ 51-54 (unpublished opinion).