Jon Campisi Feb. 11, 2014, 7:25am


A federal appeals panel has sided with a U.S. District Court judge in

Pittsburgh who dismissed a lawsuit brought against the National Football League by four fans who alleged the organization committed fraud when it sold them tickets but then failed to provide them with the seats for which they paid.

The three-judge panel of the U.S. Third Circuit Court of Appeals affirmed U.S. District Judge David S. Cercone’s dismissal of a lawsuit filed against the NFL by Pennsylvania residents Richard and Cheryl Pollock and Florida residents Paul and Cynthia Kutcher.

The plaintiff essentially argued that they suffered damages, both economic and emotional, because the NFL did not fulfill its obligation to give them access to particular seats during the 2011 Super Bowl game between the Pittsburgh Steelers and the Green Bay Packers.

The two couples sued after their seats at Cowboys Stadium in Dallas were in temporary sections that were built for the game, but that ended up being deemed unsafe and left unoccupied.

The plaintiffs wound up having to stand and watch the championship game, something they said caused their views to be obstructed, and diminished their ability to enjoy the professional sports contest.

The Third Circuit judges agreed with Judge Cercone’s reasoning in dismissing the complaint.

“We conclude that, in spite of Appellants’ efforts to express their claims as negligent misrepresentation against the National Football League and the Dallas Cowboys Football Cub, LTD., these disputes sound in contract,” the appeals panel wrote in its Feb. 10 non-precedential decision. “Moreover, their contention that the National Football League engaged in fraudulent misrepresentation and fraudulent inducement are based upon, essentially, the same acts as the negligence counts, and their assertions of injury and pleas for relief inextricably arise from the alleged breach of the contracts at issue.”

Cercone, the appeals panel noted, ruled that the plaintiffs’ had a remedy in contract law for any actual and consequential monetary losses.

The panel wrote that Cercone’s reasoning was sound.

“Appellants have exercised a great deal of creativity in construing their claims as sounding in tort and statutory fraud,” the Third Circuit judges wrote. “Yet, the inescapable fact is that the entire suit is grounded in their purchase of tickets, commonly regarded as revocable licenses, to a sporting event.”

The essence of the litigation was that the plaintiffs suffered damages because the NFL did not fulfill its obligation to give them access to particular seats during the Super Bowl game, as specified on their tickets, the appeals decision states.

“The contracts are inseparable from their claims,” the judges wrote.

The appeals court used the same reasoning to dismiss the claim that the NFL violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law.

“The cause is entwined in the contracts between the parties, which, in turn, are the bases for any entitlement to damages,” the ruling states. “Cloaking the claim as statutory fraud does not alter our conclusion that the District Court did not err by dismissing it.”

The appeals judges also determined that the couples were “without any legitimate basis to assert punitive damages, attorney’s fees, treble damages, or additional compensation for losing a ‘once in a lifetime opportunity’ to view the sporting event from their promised seats.”

“The District Court appropriately assessed Appellants’ losses to be far below the statutory minimum and this reasonably grounded its decision to dismiss,” the panel wrote.

The case was heard by Third Circuit Judges Thomas M. Hardiman, Anthony J. Scirica and Richard L. Nygaard.

Nygaard penned the decision.

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