to be here thank you and we thank you for serving on this panel we have we still have one vacancy on our court until about a month ago we had two vacancies without the service of all of our senior judges and many others that we can ask to help us we would not be able to get it stay anywhere near current and so we think you'd rather mothers  i guess i should state on the record before we start this i just saw this yesterday that i'm a season ticket holder a long time pittsburgh steelers i take it that  aware i at least have some if not the interest past experience with the issue before this court but i don't see any conflict unless those of you feel that there is assuming we get back to the district court term i will gladly make sure you're not a part of the class ok thank you so any problem with that follow the up of these the principle area we allege with respect to the district court decision is its misapplication of schubert and bauer those decisions do not preclude the relief to the contrary she would actually recognizes a right of the refund of the ticket price belmore was an action soley against the venue owner who the court held could not be responsible for whatever breach the participants in the event on to talk in addition  a interestingly notes that there could be no wrong because there was no violation of the formula one league rules in any event the notion of having six teams versus thirteen was within the rules so barry says first of all this action against the venue holder which is not our case and secondly there was no violation of the league rules in the first place it's undisputed that the n f l was violated here the commissioner makes it clear this was a won't fal act by his own comments and by the own internal discipline they impose level of earth or what type again you're going to see one that was had files in it or or whatever well to the extent the district court said that we submit that the court is an error because there is a fundamental understanding of the contract between the ticket holder and whoever sells the ticket who has a third party relationship with the ticket holder such as the patriots that understanding is a game played on a neutral and level playing field between two contestants who will come at this game as no you're on it because those are game day violations that are part of the game if a player commits a facemask violation there is a response by the referee on the field and that's part of the game in fact the player might intentionally foul for some tactical advantage in the game and that's remedied by a penalty so game day violations on the field violations not the same as a concerted pattern by the management of a team to omit a fundamental violation of the contractual understanding  ticket holder would have so what is that understand a ticket holder is spending hundreds of dollars for a season ticket or any individual game ticket rather to see this match that's played on a neutral playing field no one would spend this money same as the failure of a referee to make a call that someone else thinks he should have made here we have actions that precede the game we have a conspiracy by the patriots to steal illicitly signals of the other team thereby undermining in subverting the fundamental understanding of the game that the ticket holder bargains for this is a business the ticket holders paying vast amounts of money for the right to see this game he does so because a certain understanding he's not spending this money to buy tickets  bill that way but let me ask you and i could give you a whole host of hypotheticals but you can imagine for a crooked referee to a system that had run a bring this kind of action against either a participant or league as a whole well i think each case we obviously be highly factual but we're dealing here not with the actions of a player we're dealing here with the actions of the executive management of the team that bind the team itself the corporate entity of the team we're not suggesting that any right of action attaches to a player who misses a field goal attempt well who intentionally interferes with another player thereby blocking reception of a pass that's a part of the game we're dealing here with the executive management's actions that conceal information that the average ticket holder would want to know how it is suppose after halftime one side decides that we're not going to take the field because the other side is fouling so much we're not going to take the four for whatever reason we're not going to take the field and they don't take the field they default of the play of the team it does take the field would the ticket holder have a cause of action under those circumstances when management of the team says we're going to forfeit it if we don't like the other guys are playing well firstly i've never heard of such a situation happening the players want their own opportunity to play just to meet their own statistics so i management team says we're not going to take the field and half well that's an interesting question because clearly the teams have a duty to play the game if they sold tickets to a game the question is i think in this case whether there was a premeditat deception that existed outside of the game and in fact here we have a seven year pattern of this conduct this is not a matter of a player suddenly losing his grip well like mike tyson in committing the act he did it all right it's a horrendous violation no question that if i fail it's the fundamental understanding the ticket holder has no vast sums changed hands why would someone do that knowing it's a rigged game certainly they pay less knowing it's a rigged game now professional wrestling i think is the best example we could use to contraindicate this problem that's billed as entertainment it's fundamental and they're going to show the ticket which says this game is played under n f l under the n f l the understanding of the ticket holder the fan if you will be is that there is a regulated game with certain minimal regulations so it's not entertainment like well like wrestling this is why i think i should take the invitation go right there now i think the distinction is the type of event because clearly a rock concert is not an opera that and there are fundamental understanding as it may differ between the two classes of ticket then show up and find this an understudy them have brought outside of the performance and that's analogous to this case meditated pattern of intentional deception by omission of the facts known to the participant so i would say you're on to the answer is yes is a course of action under those circumstances you know the question is is this a license or a ticket in the instant case the new jersey courts and we're governed by new jersey law had departed from that dictum that was in shubert that says well you only get a license to see the event the quota says that's not valid any entertainments a business i think we need to move from the notion of saying fraud cannot lie in the entertainment context the problem roddy's managers in my hypothetical knew in advance that he'd be lip sinking and nevertheless so tickets to the public and the o ticket rock legal rights any ticket to an opera no of course not it depends though on the factual premise of the case as it's developed in the trial court when one makes an allegation that probably should have been singing right and that's the fundamental universal understanding of the opera ghar that's a fact finding that the trial court will make when madonna sings it may well be understood by everyone that she's going to be lip sync well it may not be in the ten year factor then it is going simply to see the spectacle of madonna i'm dating myself madonna's not that current anymore but the fact remains is a fact conta it's a factual specific question well it did order to get yourself out of a third party got a fishery vote here you have no contract with the patriots or the  if say the yankees through their third base coach you're their home through somebody and in some pre designed location steal the sign plash is what the pitch is going to be to somebody on the bench the flash that the batter so he has an advantage you know whether or not  a curve ball fastball slider or whatever coming out the pictures and how does it differ the answer is very simple that the ability of a player on the field to see signs and match those signs is something he was she is permitted to do now not the player if they this was a systematic and it happens in baseball somebody tips off a coach in the dugout the coach in the dugout motions to the player and the batter present there's only one waiver on that ticket and that's the waiver of claims against the n f l for torts arising out of body searches at the stadium that's the only way for an interesting lawyer and we can beat the supplemental if necessary requires express waiver of any cause of action by a party there's nothing in that ticket that weighs any other client except that tort claim for body search violations and so the n f l intended what the jets and the patriots through through the franchise system intended any other way for their expected to give notice in that ticket that was not done now they want to have it both ways they want to be free to be free of the remedy and never have gone on record and advised people of the loss of rights that's why this case is significant that they has the best some minimal bedrock or th governs this vast economic enterprise the n f l is a multi billion dollar industry the average family will spend thousands of dollars to season tickets this is not mere entertainment going to a movie for nine dollars we're talking about a nature investment by the ticket holder and th ticket holders fundamental understandings and nothing in that ticket waves the traditional remedies were fraud is premeditated outside of that game mr effort here mr there thank you your honors my name the shop all fine i represent the national football league i want to spend my time addressing judge brown's decision that said there was no legal cognize wimble injury suffered by the plaintiffs here regardless of the nature of any of the claims that they have played in the complaint mr goldberg representing the patriots and mr bell object will argue with regard to the specific elements of each of the claims raised and whether they stated cause of action let me first say your honors that counsel is very much wrong to suggest this is not an on field violation the taping occurred on the field referee could have called an unsportsmanlike that would not have precluded the commissioner and the league office from discipline at this point in the team in the coach for these violations there is not exclusive jurisdiction over the field versus over the well you know our i don't respectfully think it makes it different because each of these events occurred at a particular game a selection of complaint jets patriots games and to the extent that they each occurred when they were admitted to the game as a fan pursuant to the ticket the back of the ticket basically says you're admitted only to the stadium for the specified event and as for the purpose of having a i play baseball primarily and we try to figure out signals of the pitcher and attack at that's what we did videotape it was all right on field and that's a big difference if you know when someone you know throw a certain type of your honor in football happens all the enclosure they do videotape sidelines they do have the ability of having if you will market intelligence in terms of knowing what the other teams cause are and they do have the ability to collect this kind of game that's not the game they thought there are maybe i can put it this way every fan that ghosts or game has the expectation that there will be rules infractions and there are certain rules infractions of a certain nature that can give a team  competitive advantage that makes it in their words a coup dishonest games are not a fair competition let me give you an example were to pass interference on the field is intentionally gauged and in many instances by by league year in order to get a competitive advantage for the future is is i don't see off the field violations of the salary cap under the collective bargaining agreement where the team tries to get an advantage fact your honor the point here is these are subjective expectations that's the point of a legally cognize of all interest in injury decision in the court below and in the other decisions like studio casinos no different than this case i would submit because there were rules in boxing that basically said if you bite the earth your opponent are disqualified the referee can disqualify you we have rules here if you if you videotape the even before they did it and why shouldn't they why should this ticket holder of course because rules infractions are part of the game also in whatever form they take and when they are uncovered the league disciplines and exercises its jurisdiction and the reason it will become unmanageable because as noted by bowers it's not a bike a studio as noted by the court below there will be one case after another where there's a disappointed fan who is simply going to say i've got a lawsuit would you make the same argument if one of the teams took money to throw the game no i would make the same i would make a distinction between and i would make the distinction because you are  different and i would want and i would suggest that that might fall in the category of those cases the evidence between this and that in one case the team took money to throw the case in our situation here a team particular game the video ok taping was caught before the end of the first quarter and it stopped so it did not have an impact on that particular game the claim goes back for the claim goes back to others and there's there there is no i think really beg to differ that there's a qualitative difference between a sustained program of fixing games by the exchange of money those are criminal actions under the under the criminal law were going to be called that i would submit there's a fundamental difference the difference is the certainty of outcome there's no certainty of outcome by taking the signals of there is certainty of outcome when you're exchanging money there outcome in this kind and certainly coach belichick put on a defense when the when the commissioner was trying to get to assess the penalty you know he it was his view that he had the right to to use videotape the signals as long as he did not use them in those games why and if the rest of it was no different than studying the films and the and the and the plays or interviewing players and understanding the normal doing what i'll call the rights of first refusal right to have an option those cases the courts have recognized are separate bundles of legal rights that that are possessed by a fan and season ticket holder as opposed to what goes on on the field of play what goes and their dissatisfaction with the quality of the game and he underpinning of the shinseki the fact that they recognize that there was a contractual right well they did but it's a different i believe the court would would rule that the contractual right there is different than there were ten the right to that that you get on admission to the stadium there are two fundamental different rights one is the right to hire season  sorry ok you're you're explaining my answer my question the right to buy your season ticket package versus the right of entry the rights you have upon entry to the stadium and to that specific game which is to have a quote spectator seat and as judge brown said they got what they pay for now you can you can you can be upset help out as a commissioner was with regard to with regard to what occurred but that doesn't mean it's a civil injury which is what judge well made that type of money if they had known in advance that one team knew the signals of the other team and they weren't going to see that they thought they were paying for your honor i think you'll disagree with my answer but i think even what i know about professional sports in the thirty years i've been practicing it yes i think they would have bought their season ticket packages and i think had they had first of all had it been known it would've happened but meant that the idea that that you can separate this these kinds of events into one bucket versus another in the concert area that counsel referred to i would i would simply take the time to really refer you to we cited in brown said he said regardless of whether this is a license or contract this is not legally cognize of all injury as a matter of law that's the issue that he decided counsel really is not addressing that issue he hasn't court my name is daniel goldberg i represent coach bell a check in the new england patriots i want to start briefly by referring to the rule that's been discussed so far here today because i think that it's important to recognize that this is a this is not a created rule interpreted a rule and enforced rule it says that there is no videotaping from the sidelines or other areas except for areas that are totally enclosed which are not accessible during a game to staff members the n f l does not prohibit scouting in advance of teams it does not prohibit using binoculars to assess what the opposing coaches are calling it does not excess it is not decided to draw the line was at the videotaping from the sidelines what coach bela check understood that rule to be was that you're not to use those videotapes in the game in question and there is no allegation in this case that the patriots ever used the videotape for the game in question in fact the allegations are very clear they use that for the next game what is asserted that's right and that's exactly because their teams scout other teams because coaches change teams players change teams with knowledge of the playbooks forget about signal calling that's why every team for every game and every season works on changing their signals it's why when you watch a game  because they know there are a lip readers out there the coaches are always talking in to their play card because this is known so now the n f l that's the way your client does it not all the coaches dark well from my observation  that is the context for this line drawing this is this is just counts is not a question of somebody violating the criminal law or society's law and exposing themselves to criminal activity this is a question of the line drawn by the l and whether a fan coming to a game has a right to expect that a game will be free of either on fuel or off field infractions this will actually is an interesting combination between the two the rule itself prohibits on field game day videotaping the way that then for the patriots it was these films were used was not not during a game so it's kind of an interesting mix but submit that it doesn't matter for purposes of the legal analysis because as mr girlfight pointed out there are lots of off field activities which get punished and which can impact the competitive balance you mentioned a few tampering with players there is no requirement in the n f l that you disclose it as a team that a player you've hired in fact you had communications with during the previous season if you're caught for tampering you pay a fine it may include money we're going to intentionally try to draw you offsides we're going to intentionally commit pass interference if we think that you're going to go for a touchdown on a long long play there's no requirement of that and if any team does that whether it's the steelers  patriots or the jets there is no cause of action that's created as a result so what is it that is alleged here what's alleged here is that mr mayor a season ticket holder so he bought his tickets for the entire season he attends the first game of the two thousand and seven season and sometime during the first quarter the patriots are determined by n f l personnel to have a videographer on the field is removed from the field and afterwards the patriots are assessed the penalty now the question was posed about contract vs license so let's pause for a moan and see what's really at issue in this case because in contrast to oshinsky which dealt with the i think rather narrow question of whether season ticket holders have a contractual were at least net have a contractual right of renewal what the plaintiff complains about is his use of a particular ticket to a particular game he's not saying that he lost the season tickets or he didn't get the right to renew what did that ticket to that particular game say if said which right here on this board which is part of the record appendix the first thing that it says is what rights do you have as a ticket holder and right at the outset case whether this is a revocable license and indeed it has all the language and addition of a revocable license or whether it's a contract there is no contractual provision here saying you get to see an infraction free game there's nothing in the ticket that rights where there are no rights well yeah but that's no he's claiming it's part of the contract itself he doesn't have to have that specifically in the your agreement that is part of his inalienable right of a contract or under whatever code it comes under contracting not uniform or whatever that he had a right to see a game that wasn't one sided rig because one side knew the signals of the other side and so that the fact that you have this disclaimer here didn't really address what is cause of action is claiming whether it was whether it spells correctly or not well actually he says this is implied in the nature of the contract  this this this ticket and this question would be a matter of new jersey law as to whether you can imply that term in the contract and as we cited in our main brief new jersey law is very clear in terms of when the very limited  not overruled by the usher in the case is very clear tickets to entertainment events are revocable licenses and that's consistent also with the language just what about the the count the allegation of what the assertion is is that there was a thorough your to disclose or in advance now under common law forward rules for an omission of information to constitute common law for audit there either roles people in our in our division twice yes but there is nothing in that contract between the two teams which were between the n f l which creates a contractual obligation of teams not to  what it's what is very clear and it does go to the common law fraud issue is there can be no reasonable alliance on some notion that there will be an infraction free game the notion of honest here on her wrist with all respect to that question it depends it really does depend what is deemed to be honest is it honest if you've tampered with a nother team's player in order to hire that player isn't honest if a coach you have hired over the summer and there are no rules against this disclose is that here's what the playbook of the team that i just came from will be this happens all the time there are no league rules against it if the violation here goes to the foundation of the play on the field if you know the other man's signals him giving the signals as is is of no consequence if you're going to be able to dissipate the next play anyone that that's competed knows that and i agree with you everyone spies on everyone it's done at every level up from through high school all the way through professional but this was done with a lot of ability and a lot of alacrity and isn't it seems to be fundamentally unfair what you're seeing again which maybe not rig i want to pay for but you know that you're playing someone who's making you play with one hand pot on your back because they know every everything you're going to run with all respect to your question your honor i will tell you having been involved in this issue once it came to the fore deeply there were precious little benefits that came from this because it teams routinely change their signal calling game to game because teams know that they've been scouted and exams well my only point is that it is an n f l rule it is for the n f l to interpret it is for the n f l to punish the game otherwise this was a whopper of a penalty with respect to commissioner goodell and i do have great respect for him he has seen it as a very important part of his charges commissioner to make it very clear he will act with a heavy hand whenever he sees anything so bad the n f l thought this went to the heart of the of the of the game well what the n f l decided was that it was a serious violation of their rules as they interpret it and that's fine but that doesn't answer the question as to whether every time the n f l makes that decision a fan has a right of action to sue both the n f l and the opposing team what's your best argument i know you're looking at this point that they that there is a contract here let's assume there is a contract th but not of but not of their but not of their issue they claim third party beneficiary of a contract between as they say the jets and the patriots and were the n f l and it's not even clear what that is the first point is the point that i it you'd have to not only find that there was a contract but you would have to find that there was a contract provision which said he created a cause of action that is there is a contractual duty to comply with all n f l rules contracts for good good good faith contract these apps absolutely not because because when you're playing professional sports no one would and this comes to another aspect of these claims there could be no reasonable reliance on some notion that you're going to see an infraction free game and then the question was posed by the panel to my brother earlier was where do you draw the line if the commissioner thinks it's serious then all the jets fans can sue for one hundred eighty four million dollars but if the commission doesn't think it's so serious they get no this is for the n f l to apply and interpret and it's for the teams and bear in mind as as happens every year the n f l looks at its rules and sometimes it changes those rules just as it did in the wake of the tom brady's injury for example they changed the wall about how you could hit a quarterback so these rules are changeable that's why i go back to my comment these are not society's laws they are not statutory laws are not criminal laws these are simply n f l rules about how to play the game ok and if you violate i think mr goldberg and we understand your position thank you very much and we thank you and we'll hear from mr blair on rebuttal consider that arrangement in evaluating the adequacy of your complaint when you never alleged that in the complaints elf well no the complaint does a ledger revenue sharing arrangement it it does state that there are contracts between the jets and the patriots to share revenue for these games as well as contracts between the jets the patriots and the the proceedings is what is the nature because that goes to the to the extent that the patriots benefit from this conduct this fraud to that extent is possible to maintain an action for fraud  fraud well but by virtue of the fact that all of these omissions were kept from the the ticket holders who purchased these tickets for the games i mean york jets season ticket or the patriots well we pledge that they do by virtue of the revenue sharing contracts that all n f l teams half which hasn't been denied by our adversaries and their papers and that and that is that is the liability arises once they took possession of the videotapes and then decided to destroy them therefore further perpetuating the fraud but i think an important important point that wasn't addressed by the other side i think is critical is the new jersey consumer fraud statute doesn't it doesn't all require these these different duties that we don't concede at all that there isn't a duty that the pitchers has but the only thing that the new jersey consumer fraud statu by senator specter and are in the complaint it indicates that seventy five percent of the time there's an indication seventy five percent the time the patriots knew what off what what defensive pattern the other team was running if that's the case you can't by definition have a fair contest but more importantly that has to be critical information that any consumer would want to know before purchasing these tickets and i must said i differ with my adversaries in that the world wide wrestling entertainment is billed as entertainment and makes no no claims that the matches are fair or even and therefore it's completely a different matter so under the consumer hold or might want this information or that information but for purposes of our case to know that a team could have the other put the other team single seventy five percent of the time and also we allege in our in our case that you saw in the complaint there are a number of actions that the patriots took to conceal what they were doing they would they took the the light off the top of the camera they eliminated that light so no one could see what they doing they were doing which indicates an intent that's and that's an element of fraud in new jersey they they directed their videographer to only report to one person in the patriots organization to keep this this videotape in program surreptitious and secret and all of those things indicate intent to defraud and they they certainly indicate that in contrast to what our adversary suggests the coastal check in the team were not under the  misapprehension that this that this rule was being it here too they were in fact doing something which went to the fundamental fairness of the game and didn't want to be caught doing it and we think we ought to have an opportunity to prove in court to a fact finder that that that is the case i don't know i'm sorry but we every day when they  well there's assumption that that that had a deleterious effect on the jets there's no question about it and the question is whether or not that has a recognizable course of action or back to basics whether you just bought a seat opponent because in that case i believe the actual holding of that is that a ticket to a performance is a contract and it was simply it was the point that was denied in that case i think the return of rejection  there is but i would i would i would suggest if you read that in connection with the lead better case which is what schubert was based on and then the subsequent case which was the first versus the first peter's case that case seemed to make clear that was a king's bench case that was cited in houston and i think which is a new jersey supreme court case that case suggests the tickets are contracts so there may be some supreme court for them to decide the other hand i think that it's very clear that the consumer fraud claims ought to stand just because it's inconceivable that this conduct would be material r unfair performance i mean and it doesn't matter how you frame the contract license or whether or not you have a cause of action if you see a regain it's you know it's  game as far as i'm sure it is rigged if i know the other guys one guy don't buy singles correct and whatever so you say as well that's all a matter for the n f l and the n f l punish the team but that is that that leaves that leaves the ticket holder out in the cold that means that means that no consumer of r are there they're paying the freight and we've we've suggested various theories under which they can recover and they do in other in other areas of commerce in the nation we don't see why this is different just because