February 3, 2013
by Chuck Haven
On November 29, 2012, with the San Antonio Spurs (“Spurs”) slated to play their fourth game in five nights, Coach Greg Popovich sent home four of his players. Among those sent home were Tim Duncan, Tony Parker, and Manu Ginobili- the three most readily identifiable Spurs players over the last several years. While the game ended up being a close one, the fans were disappointed that they paid premium prices to see the Spurs backups play against the Miami Heat (“Heat”). The Spurs were fined $250,000 by National Basketball Association (“NBA”) commissioner, David Stern, who stated that the Spurs violated the NBA policy that teams must alert the league when players will not be traveling to road games.
Coach Greg Popovich (Photo by Morry Gash, AP)
One fan that attended the game, attorney, Larry McGuinness, (“McGuinness”) decided to bring a class-action suit in Miami-Dade County, alleging that the Spurs “intentionally and surreptitiously” sent their players home without alerting the NBA, the Heat, or the fans. McGuinness alleges that Popovich and the Spurs had made the decision to send their players home for this game before the season even started, and that not alerting the 16,000 people who paid for tickets to the game injured the fans who paid an increased ticket price to see what they believed would be a game filled with superstars on each team.
McGuinness claims that this is actionable under the Florida Deceptive and Unfair Practices Act, which requires proof of: 1) a deceptive act or unfair practice; 2) causation; and 3) actual damages.
Deceptive Act or Unfair Practice
A deceptive act is exactly what it sounds like, but an unfair practice is defined as one that offends established public policy and is immoral, unethical, oppressive, unscrupulous, or is substantially injurious to consumers. Given that, a deceptive act is the much easier standard to prove, and it is likely that McGuinness will pursue this path. This seems to be a strong argument, as the Spurs failure to alert the public that their players would not be present before the day of the game certainly appears to have deceived the fans. While the Spurs may argue that they did not actively deceive the fans, it seems that the failure to at least alert the league, which they have a duty to do, will qualify as a deceptive act.
The issue of whether actual damages were suffered also seems to fall in favor of McGuiness. At NBA games fans buy tickets to see stars, and the ticket prices reflect that. According to the Heat’s website, to see a team full of stars that might only come to town once per season (i.e. the Los Angeles Lakers) will cost $175 per ticket to sit in the 400 level seating area. A talented team like the Spurs commands a similar ticket price; arguably fans paying these prices for tickets expect to see the big name players in action. To purchase tickets for similar seats against an opponent without an all-star on the roster (think Charlotte Bobcats), costs only $20 per ticket. The $150 dollar discrepancy in ticket price increases as the seats get closer to the court. It is this difference in price that will likely be claimed as the damages suffered.
The Spurs will likely bring forth the argument that the fans still experienced a close game, and that is what fans really want to see. However, Commissioner Stern’s comments may cut against the Spurs defense. Commissioner Stern has stated that first and foremost fans pay to see stars. What stars are on the court very much determines the demand for the tickets; this is how teams set the ticket prices for the game. The closeness of the game is much less a factor in ticket-buying decisions, and it is therefore likely that the result of the game will not prevent the court from finding injury to McGuinness.
The Spurs may further argue that there is no guarantee that any players will play in any particular game, and when a star doesn’t play fans are not entitled to refunds. While this may be true, the reason for this lack of guarantee is because of how common it is for players to be injured. In this case, the players sent home did not miss the game due to injury, but instead were sent home because it was predetermined that they would receive an extra day of rest. The fact that this was not an unforeseeable injury that prevented someone from playing but instead was premeditated decision differentiates it from the risk of not seeing certain players out due to injury which fans implicitly accept when buying tickets.
The issue of causation is where McGuinness may find his biggest hurdle. The main question is “Did the Spurs’ allegedly deceptive act cause the injury to the plaintiffs?” McGuinness will likely argue that had the Spurs disclosed that the players would not be active, the ticket prices would have been significantly lower. However, it was actually the decision of the Heat to charge premium ticket prices for certain games that caused the higher ticket prices. It is not the responsibility of the Spurs to sell the Heat’s tickets, and it is unlikely that the Spurs were even aware of the ticket prices for this particular game. For a court to rule that the Spurs were the cause of the injury, they would be holding the Spurs responsible for the decision of other NBA teams to charge premium ticket prices for certain games. It seems unlikely that the Spurs would be the only party held liable.
A much more persuasive argument could be made if the Heat and NBA were attached as co-defendants in this lawsuit. It could be stated that, if it is a common practice in the preseason to plan out when players will be rested, then this should always be announced before the season begins. That way when the fans decide to purchase single game tickets during the season they will have a more accurate understanding of the product for which they purchased tickets. The NBA allowing a culture where fans can be misinformed like this, and the Heat benefitting from the Spurs partaking in this practice, seems to be a much stronger argument for recovery.
 In re Florida Cement and Concrete Antitrust Litigation, 746 F.Supp.2d 1291.