After a spectator at a Chicago Cubs game, who was hit in the face by a baseball, sued, the team and MLB moved to compel arbitration. The Illinois trial court rejected the motion, finding that the arbitration provision was procedurally unconscionable and therefore unenforceable. The Illinois appellate court agreed, pointing to the fact that the fine print on the back of the ticket failed to include all of the arbitration terms and conditions, and that expecting a ticketholder to access a separate website to view the full terms and conditions while navigating the commotion of a baseball game was so onerous that it could not be said that the plaintiff had fairly agreed to the conditions.
Laiah Zuniga was hit in the face by a foul ball while attending a Chicago Cubs baseball game at Wrigley Field. Zuniga obtained entry to the ballpark by presenting a paper ticket created by the Cubs’ ticket office. Zuniga had been given the ticket earlier that day by her father, who won it in a raffle at his workplace. The front of the ticket contained artwork depicting one of the Cubs players; information about the opponent, the date and time of the game, the seat location, the ticket price, a barcode, and small print that stated that the ticket was subject to terms/conditions on the reverse side.
On the back of the ticket was an advertisement as well as six paragraphs of fine print. The fine print made reference to terms and conditions available either on the Cubs’ website or available at the Cubs administrative office. The ticket did not specify where the administrative office could be found. The fine print contained a warning that baseballs could be hit into the stands and that spectators should stay alert and disclaimed liability for any injuries resulting from such occurrences. The final paragraph specified that any disputes would be resolved by binding arbitration.
In an affidavit, Zuniga stated that she had not read the fine print on the back of the ticket, had never read any ticket terms and conditions and had never visited the terms and conditions on the Cubs’ website. The record in the case also detailed the fact that the arbitration clause in the terms and conditions on the Cubs’ website was substantially longer than that contained on the back of the ticket, reaching four pages in length.
After the injury, Zuniga filed a complaint in the circuit court and Major League Baseball and the Cubs filed a motion to compel binding arbitration. Zuniga’s response argued that the arbitration provision was inapplicable because the Cubs were named only as a respondent in discovery and MLB was neither a party to the agreement nor a third party beneficiary of it. Zuniga also argued that the arbitration provision was unconscionable because it was too onerous to expect a ticketholder to notice the website address on the ticket and then use a device with internet access to find and read the full text of the terms and conditions. The trial court rejected Zuniga’s first argument but held that the arbitration provision was procedurally unconscionable and denied the motion to compel. MLB and the Cubs then appealed.
The appellate court began by stating that the trial court relied on the doctrine of procedural unconscionability. The panel noted that a contract term can be invalidated on the basis of “substantive” unconscionability, “procedural” unconscionability”, or a combination of the two. The panel stated that a provision is substantively unconscionable when terms are inordinately one-sided in one party’s favor, while it is procedurally unconscionable when the term is so difficult to find, read, or understand that the plaintiff could not fairly be said to have been aware that they were agreeing to it.
The panel then agreed with the trial court that the provision was procedurally unconscionable. The panel stated that factors that indicated that included that the paper ticket possessed by Zuniga did not contain the actual terms and conditions of the contract and that the context in which a ticket holder was directed to access the full terms and conditions was not one where they were already using the internet and could merely click a hyperlink to access and read those terms and conditions. The panel found that the need to take extra steps to access the terms and conditions in the context of attending a baseball game greatly diminished the ease with which a ticketholder could actually read the arbitration provision to which they were purportedly agreeing. The panel, therefore, affirmed the decision of the trial court.
Read the Court’s full opinion here.
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