Petition for Writ of Mandamus Conditionally Granted and Memorandum

Opinion filed July 15, 2021.

In The

Fourteenth Court of Appeals 

NO. 14-20-00769-CV

IN RE HOUSTON ASTROS, LLC AND HOUSTON ASTROS 

MANAGEMENT, INC., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

152nd District Court

Harris County, Texas

Trial Court Cause No. 2020-10637

MEMORANDUM OPINION

On November 12, 2020, relators Houston Astros, LLC and Houston Astros 

Management, Inc. (collectively, “the Astros”) filed a petition for writ of mandamus 

in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In 

the petition, relator asks this court to compel the Honorable Robert Schaffer, 

presiding judge of the 152nd District Court of Harris County, to set aside his 
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September 2, 2020 order denying the Astros’ Rule 91a motion to dismiss the 

plaintiffs’ claims.

1

 We conditionally grant the petition.

BACKGROUND

During baseball games, pitchers and catchers use a series of “signs” to 

communicate the type of pitch being thrown, and the intended speed, movement, and 

location of the pitch. Olson v. Major League Baseball, 447 F. Supp. 3d 159, 164 

(S.D.N.Y. 2020). Keeping the signs secret from batters is critical to a pitcher’s 

success because such knowledge or which pitch is coming improves the batter’s 

chances of hitting the ball. Id. While sign-stealing is not prohibited per se, Major 

League Baseball (“MLB”) rules and regulations prohibit using electronic devices to 

view or convey information. Id. All MLB member clubs have entered into an 

operating agreement pursuant to which the teams agree to be bound by the rules and 

regulations of MLB, including its electronic sign-stealing rules. Id. 

In November 2019, former Astros pitcher Mike Fiers publicly alleged in an 

article published by The Athletic that the Astros had engaged in prohibited signstealing methods in 2017. Rob Manfred, the Commissioner of the MLB, initiated 

an investigation covering the period of 2016 to 2019. On January 13, 2020, Manfred 

issued his report, in which he concluded that the Astros had been involved in stealing 

opposing teams’ signs by electronic means in violation of MLB rules. The MLB 

imposed sanctions on the Astros. 

1

See Tex. R. Civ. P. 91a. The real parties in interest are Adam Wallach, Roger Contreras, 

Kenneth Young, and all others similarly situated. 
3

In a consolidated proceeding, the plaintiffs sued the Astros on behalf of 2016, 

2017, 2018, and 2019 full and partial season ticket holders for knowingly, 

intentionally, and deceptively selling season tickets with full knowledge that Astros 

employees and representatives were surreptitiously engaged in a sign stealing 

scheme in violation of MLB rules. The plaintiffs claim that, had they known about 

the Astros’ sign stealing scheme and subsequent MLB investigation, they never 

would have purchased season tickets, post-season tickets, or other goods and/or 

services from the Astros. 

The plaintiffs allege claims for fraud by nondisclosure, violations of the 

Deceptive Trade Practices Act, money had and received, and unjust 

enrichment/assumpsit. They seek damages and equitable relief for (1) the amounts 

they paid for 2016, 2017, 2018, and 2019 season tickets, 2017, 2018, and 2019 postseason tickets, parking, promo packs, ticket printing services and/or other goods 

and/or services purchased from the Astros; (2) the diminished value of personal seat 

licenses; (3) treble damages; (4) punitive damages; and (5) attorney’s fees, litigation 

expenses, and court costs. 

The Astros filed a Rule 91a motion to dismiss. The Astros argued that the 

plaintiffs have no justiciable interest in a baseball game of a particular nature and 

quality and free from violations of MLB rules. In other words, the plaintiffs cannot 

maintain a lawsuit for their disappointment over how the Astros played the game. 

The plaintiffs responded to the motion to dismiss, asserting that this case is 

not about what happened on the field, but the Astros’ “intentionally deceiving season 

ticketholders, their most coveted patrons, into purchasing tickets, parking, 

concessions, and other goods and services at supra[-]premium prices over multiple 
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years.” The plaintiffs assert that they never would have purchased tickets had they 

known that the Astros were cheating. 

The trial court denied the Astros’ Rule 91a motion to dismiss. 

MANDAMUS STANDARD OF REVIEW

Ordinarily, to be entitled to a writ of mandamus, relators must show that the 

trial court clearly abused its discretion, and that they lack an adequate remedy by 

appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per 

curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary 

and unreasonable as to amount to a clear and prejudicial error of law or if it clearly 

fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B.

Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per 

curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. 

proceeding) (per curiam). Mandamus relief is appropriate when the trial court 

abuses its discretion in denying a Rule 91a motion to dismiss. In re Farmers Tex. 

County Mut. Ins., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding). 

RULE 91A STANDARD OF REVIEW

“Under Rule 91a, a party may move for dismissal on the ground that a cause 

of action has no basis in law.” Id. “Dismissal is appropriate under Rule 91a ‘if the 

allegations, taken as true, together with inferences reasonably drawn from them, do 

not entitle the claimant to the relief sought ... [or] no reasonable person could believe 

the facts pleaded.’” City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) 

(quoting Tex. R. Civ. P. 91a.1). “Whether the dismissal standard is satisfied depends 

‘solely on the pleading of the cause of action.’” Id. (quoting Tex. R. Civ. P. 91a.6). 
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The appellate court reviews the merits of a Rule 91a motion de novo because the 

availability of a remedy under the facts alleged is a question of law and the rule’s 

factual-plausibility standard is akin to a legal-sufficiency review. Id.; see also

Farmers Tex. County Mut. Ins., 621 S.W.3d at 266 (“We review the merits of Rule 

91a ruling de novo; whether a defendant is entitled to dismissal under the facts 

alleged is a legal question.”). The dismissal grounds under Rule 91a have been 

analogized to a plea to the jurisdiction, which requires a court to determine whether 

the pleadings allege facts demonstrating jurisdiction. City of Dallas, 494 at 724–25. 

“In ruling on a Rule 91a motion to dismiss, a court may not consider evidence but 

‘must decide the motion based solely on the pleading of the cause of action, together 

with any [permitted] pleading exhibits.’” Farmers Tex. County Mut. Ins., 621 

S.W.3d at 266 (quoting Tex. R. Civ. P. 91a.6). 

ANALYSIS

The Astros contend that the plaintiffs’ claims based on the sign-stealing 

controversy are not legally recognized causes of action.2 Specifically, the Astros 

assert that the plaintiffs’ claims are based on what happened on the field of play. 

While this issue has not been addressed in Texas, the Third Circuit Court of Appeals 

2 Attached to the motion to dismiss were copies of 2016, 2017, 2018, 2019, and 2020 game 

tickets, copies of the auto-renewal recurring payment authorization, and copies of the Astros’ 

season ticket terms and conditions for 2017, 2018, 2019, and 2020. These documents were not 

attached to the plaintiffs’ consolidated complaint and, therefore we may not consider this evidence 

in our review of the trial court’s ruling on the Rule 91a motion to dismiss. See Farmers Tex. 

County Mut. Ins., 621 S.W.3d at 266 (stating court may not consider evidence attached to Rule

91a motion to dismiss, but “must decide the motion based solely on the pleading of the cause of 

action, together with any [permitted] pleading exhibits.” (quoting Tex. R. Civ. P. 91a.6). 
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addressed analogous facts involving a cheating scandal of a National Football 

League (“NFL”) team. See Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2020). 

In Mayer, the plaintiff, a New York Jets season ticket holder, sued the New

England Patriots and its head coach Bill Belichick for claims arising from the 

“Spygate” scandal. Id. at 225.3 The Spygate scandal arose when it was discovered 

that the Patriots were surreptitiously videotaping the signals of their opponents. Id. 

On September 9, 2007, the Jets and Patriots played the season opener in Giants 

Stadium. The plaintiff had tickets and parking passes to the game, which the Patriots 

won. Id. at 226. ESPN.com then reported that the NFL was investigating 

accusations that a Patriots employee was videotaping the signals given by Jets 

coaches at this game. Id. NFL security reportedly confiscated a video camera and 

videotape from an employee during the course of the game and the employee was 

accused of aiming his camera at the Jets’ defensive coaches while they were sending 

signals out to the team’s players on the field. Id. The NFL found that the Patriots 

had violated NFL rules by videotaping the signals. Id. 

The plaintiff brought the following claims against the Patriots and Belichick: 

(1) tortious interference with contractual relations; (2) common law fraud; 

(3) violations of the New Jersey Deceptive Business Practices Act; (4) violations of 

New Jersey’s racketeering statute; (5) violations of the Racketeer Influenced and 

Corrupt Organizations Act; (6) the infringement of the rights of ticket-holders as 

third-party beneficiaries; (7) breach of implied contract or quasi-contract; and 

3 The plaintiff in Mayer also sued the NFL for breach of contract for the destruction of 

videotapes. 605 F.3d at 229–30. The NFL filed its own motion to dismiss. Id. at 229. 
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(8) violations of the New Jersey Consumer Fraud Act. Id. at 228. The plaintiff also 

sued the NFL for breach of contract for the destruction of the videotapes. The 

plaintiff sought damages for Jets tickets holders for all games in Giants Stadium 

between the Jets and the Patriots since Belichick became head coach in 2000. Id. 

The Patriots and Belichick filed a motion to dismiss for failure to state a claim. 

Id. at 229. The district court granted the motions to dismiss. Id. The issue was 

whether the plaintiff had stated an actionable injury resulting from the videotaping 

program undertaken by the Patriots and Belichick. Id. at 230. 

On appeal, the court observed that, “[a]t their most fundamental level, the 

various claims alleged here arose out of the repeated and surreptitious violations of 

a specific NFL rule.” Id. at 225–26. The court concluded that, at best, the plaintiff 

possessed nothing more than a contractual right to a seat from which to watch an 

NFL game between the Jets and the Patriots. Id. at 230. In reaching its conclusion, 

the court took the “license approach.” The ticket stub unambiguously stated that 

“[t]this ticket only grants entry into the stadium and a spectator seat for the specified 

NFL game.” Id. at 231. The stub further made clear that the Jets and the owners of 

the stadium retained the sole discretion to refuse admission or to eject a ticket holder. 

Id. Because the plaintiff was never barred or expelled from any game at Giants 

Stadium, much more was needed to establish a cognizable right, interest, or injury 

than these kinds of inapposite statements. Id. at 231–32. 

The appeal was “concerned with the alleged existence of a very specific but 

very different and unusual right: namely, the right of a ticket-holder to see an 

‘honest’ game played in compliance with the fundamental rules of the NFL itself 

(which was then allegedly denied to [the plaintiff] and his fellow ticket-holders 
8

because of the secret and illicit videotaping program undertaken by the Patriots and 

Belichick).” Id. at 232. 

The court stated that the plaintiff possessed either a license or, at best, a 

contractual right to enter Giants Stadium and to have a seat from which to watch a 

professional football game. Id. at 236. The plaintiff was allowed to enter the 

stadium and witnessed the “specified NFL game[s]” between the Jets and the Patriots 

and, therefore, suffered no cognizable injury to a legally protected right or interest. 

Id. The court recognized that the plaintiff alleged that he was the victim, “not of 

mere poor performance by a team or its players, but of a team’s ongoing acts of 

dishonesty or cheating in violation of the express rules of the game.” Id. 

The NFL’s Commissioner ultimately took action, finding that the Patriots and 

Belichick were guilty of violating the applicable NFL rules, imposing sanctions in 

the form of fines and loss of draft picks, and “characteriz[ing] the whole episode as 

a calculated attempt to avoid well-established rules designed to encourage fair play 

and honest competition.” Id. at 236–37. The court explained that it is not the role 

of judges and juries to second guess the decision taken by a professional sports 

league purportedly enforcing its own rules. Id. at 237. “In fact, we generally lack 

the knowledge, experience, and tools in which to engage in such an inquiry. Id. 

Here, the plaintiffs contend that their claims are based on statements off-thefield of falsely portraying the Astros as a team that has integrity for example with its 

“Earn History” slogan, instead of a team that had been cheating for years. The 

plaintiffs claim that they were induced into purchasing season tickets by the Astros’ 

misrepresentations. The plaintiffs, however, asserted in their consolidated petition 

that “Astros fans, including Plaintiffs, once filled with pride and honor for their 
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Team, are grappling with embarrassment, disappointment, shame, and disgrace for 

a team they once believed represented their community, represented them.” 

From their consolidated petition, it is clear that the plaintiffs’ claims arise 

from the way the Astros’ played the game and the plaintiffs’ “embarrassment, 

disappointment, shame, and disgrace” of the sign-stealing scandal despite their 

attempts to couch their claims in terms of off-the-field misrepresentations. See 

Mayer, 605 F.3d at 233 (“Reduced to its essence, the current appeal before us is 

concerned with the alleged existence of a very specific but very different and unusual 

right: namely, the right of a ticket-holder to see an ‘honest’ game played in 

compliance with the fundamental rules of the NFL itself[.]”). 

In Texas, a ticket to a baseball game is a revocable license. Cf. Hegar v. Am. 

Multi-Cinema, Inc., 605 S.W.3d 35 (Tex. 2020) (stating that theater transfers to its 

patrons revocable license to watch film). The plaintiffs have not asserted that they 

were denied the right of entry into Minute Maid Park or to sit in the seats for which 

they purchased tickets. See Antonio Le Mon v. Nat’l Football League, 277 So.3d 

1166, 1168–69 (La. 2019) (holding that New Orleans Saints fans did not belong to 

class of persons with cause of action to recover from alleged fraud and deceptive 

trade practices committed by NFL and its officials during game―ticket merely 

granted license to right to entry and seat at game and fans did not allege denial of 

these rights); Ibe v. Nat’l Football League, No. 3:11-CV-248-M, 2014 WL 4906886, 

at *5 (N.D. Tex. Sept. 30, 2014) (stating that in event of revocation of ticketholder’s 

license, his only remedy lies in breach of contract (citing Kelly v. Dent Theaters, 

Inc., 21 S.W.2d 592, 594 (Tex. App.―Waco 1929, no writ); Deprez v. Brewer, No. 
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05-94-01540-CV, 1995 WL 547094, at *3 (Tex. App.―Dallas Sept. 8, 1995, no 

writ))). 

CONCLUSION

The plaintiffs claim that the Astros misrepresented how they played the 

game―that they played with integrity instead of cheating. In their consolidated 

petition, the plaintiffs expressed their disappointment and shame over the Astros’ 

stealing opposing teams’ signals. Claims based on how a sports team plays the game 

are not cognizable. See Mayer, 605 F.3d at 233. Therefore, plaintiffs have not 

alleged legally cognizable claims on which they may recover damages. 

Furthermore, the plaintiffs cannot maintain their claims because they were only 

granted a revocable license to enter Minute Maid Park to watch the games in the 

seats for which they had purchased tickets and do not allege that they were denied 

those rights. See Antonio Le Mon, 277 So.3d at 1168–69. 

We hold that the trial court abused its discretion by denying the Astros’ Rule 

91a motion to dismiss and the Astros do not have an adequate remedy by appeal. 

See Farmers Tex. County Mut. Ins., 621 S.W.3d at 266. Accordingly, we 

conditionally grant the Astros’ petition for writ of mandamus and direct the trial 

court to set aside the September 2, 2020 order denying the Astros’ Rule 91a motion 

to dismiss. We further order the trial court to grant the motion and dismiss the 

plaintiffs’ claims for 2016, 2017, 2018, and 2019 season tickets, 2017, 2018, and 

2019 post-season tickets, parking, promo packs, ticket printing services and/or other 
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goods and/or services purchased from the Astros.

4

 We are confident that the trial 

court will act in accordance with this opinion and the writ will issue only if the court 

fails to do so. 

PER CURIAM

Panel consists of Justices Wise, Bourliot, and Wilson.

4 The plaintiffs also sued the Astros for a refund for 2020 season tickets and incidentals. 

Because the Astros subsequently offered refunds on those games, their petition for writ of 

mandamus does not include claims for refunds for the 2020 season.