Technical Foul: Can NBA Fans Sue When Teams Rest Their Star Players?

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Image via David Banks/ Getty Images Sport /Getty Images

It has been four days since Cavs fans young and old, convened at The Staples Center in Los Angeles, only to shout “We want Lebron” to no avail.  The disappointment was so profound that most major sportscasters are still talking about it today.

For most people, a weekday in mid-August is simply just another late summer’s work day. Most students are preparing for the fall school year and most working individuals are slogging through the dog days of summer, praying for cooler days to arrive. However, there is a coterie of individuals who are glued to ESPN while simultaneously refreshing the NBA’s official website in anticipation of the NBA’s schedule release for the next season. When the moment finally arrives, basketball fanatics eagerly yank out their credit cards and pay hundreds or even thousands, of dollars for individual and season tickets.  Fans attempt to buy prime seats to see their favorite players drain threes from 20 feet from behind the three-point line, or rock the rim with thunderous dunks. Imagine the disappointment of those diehards if they spent thousands of dollars for jerseys, travel fees, hotel rooms, concessions and game tickets only to watch Lebron James in an exquisitely tailored Tom Ford suit on the sidelines.

Gotham City’s own Kelly Chapman attended Saturday’s Clippers vs. Cavs Game at the Staples Center.  “As a Cavs season ticket holder in Cleveland, I have seen Lebron and the guys play for many years, so it didn’t bother me.  But, I don’t think anyone with a heart could miss the sadness on the faces of so many children who sat there hoping Lebron would come off of the bench and play.  It was heartbreaking for sure.  It begs the question, can you humor us and play for just 10 minutes?  Hubby and I saved up $1200 for a special night out with the kids.”

Nonetheless, there is a growing trend in the NBA whereby head coaches have opted to rest or bench certain star players for entire games against particular teams. Usually, these rest games are late in the season, closer to the NBA playoffs.  The coach may view it as an opportunity to refresh the players or to avoid injury and wear and tear from the strain of constant physical activity.  The controversial practice has been derided by players of yesteryear, who proudly suffered through a full 82 game season complete with back-to-back games and the playoffs. To be clear, the benching of the players is not because of any nagging or debilitating injury which would preclude them from playing in the game, it is simply so the player can refresh themselves.

This practice became popular a few years ago following the example of revered Head Coach of the San Antonio Spurs, Greg Popavich. At the time, Popavich’s roster consisted of aging future Hall-of-Famers who no doubt appreciated the short downtime. The Spurs thrived and continued winning championships well into the 2010’s, unseating the Los Angeles Lakers as the gold standard of NBA franchises. While there is no way to tell if Popavich’s theory of resting players contributed to the consistent winning streak, other NBA teams certainly took note and followed suit, much to the chagrin of the NBA commissioner, certain team owners, and fans. And as such, Tyronn Lue who is the head coach of reigning NBA Champs, the Cleveland Cavaliers rested all-stars Lebron James, Kyrie Irving and Kevin Love against perennial championship contenders L.A. Clippers last Saturday. The announcement was made just hours prior to tip-off. The nationally televised weekend game was highly anticipated as a potential preview of this year’s NBA finals. Of course, this irked fans at home, ticket paying customers in the arena, paying advertisers and NBA commissioner Adam Silver.

Naturally, when an event doesn’t meet a ticket purchasers expectations, they may think ‘who can I sue?’. Before deciding whether or not this is practical, viable or even capable of being decided by legal principles or by a court of justice, an attorney must analyze what law to sue under, if any. If a suit against the NBA or a team is viable, it will most likely be filed utilizing the state’s Deceptive Trade Practices laws. On a broader front, both the legislature and the courts have prohibited an entire range of actions generically called “deceptive trade practices” which is often defined “as an activity in which an individual or business engaged in that is likely to mislead or lure the public into purchasing a product or service.”  False advertising and odometer tampering are two examples of deceptive trade practices.  A number of states have adopted the standardized Uniform Deceptive Trade Practices Act (UDTPA).  However, not in California where the Cavs v. Clippers game took place. The Uniform Act does not add or detract from the law of any one state. It covers almost all the prohibitions and issues addressed in state laws.

Just like any suit that makes its way through the civil courts, the burden is on the petitioner to provide proof of certain elements. Under the UDTPA, a petitioner must prove the following two elements: (1) a deceptive act or unfair practice and (2) actual damages. Therefore, it is beneficial to analyze each prong in connection with this particular scenario. Obviously, NBA teams advertise upcoming games in order to entice individuals to purchase tickets. In fact, games in which some of the NBA’s top stars are coming to town are accentuated even more. Fans hear radio spots, and see television ads and billboards placed all around town, with the image of the visiting players emblazoned on them. Also, in certain cases, consumers are required to pay a premium ticket price for these highly anticipated games, because the organization is aware that the public will pay more to see top-notch talent.

Legally, the act of advertising these games and including the rested player is only deceptive if the organization knew or should have known that the team would rest this individual before the game started. Certainly, there’s always the possibility that a player will be injured and will not be available at tip-off. The paying customer “assumes the risk” of this occurrence when they purchase the ticket. Also, there is never a guarantee that all players will play in the game and some venues have this fact emblazoned on the tickets within the fine print. Ultimately, it would be a difficult, but not impossible task for a consumer to prove that he/she was misled by advertisements stating that a certain player would be present for the game. Attorneys know that the respondent can bring in evidence of thousands of times that players remained on the bench for a plethora of reasons. Therefore, the consumer knew or should have known that there was no promise of that athlete actually being on the floor that night. The respondent could easily retort “buy at your own risk”.

In the alternative, plaintiffs could argue that they have suffered damages (loss of money) due to respondent’s violations of the UDTPA since they did not receive the “benefit of the bargain”. The benefit of the bargain rule is a principle that any party who breaches a contract (in this case the game ticket) must pay the aggrieved party an amount that puts that person in the same financial position that would have resulted if the contract had been fully performed. Petitioners would contend that they are out of hundreds of dollars spent on game tickets and sometimes travel money and hotel rooms. The NBA will no doubt counter that the game still took place as promised and paid for. Thus, the benefit of the bargain is to attend the game, not necessarily see specific players perform. In other words, when an individual buys a ticket to a game, what they have actually purchased is a license granted to them by the team to see the specified contest, and nothing more.

Although a court case against an NBA team may ultimately fail in a civil court, this hasn’t stopped individuals from trying. Notably, a Florida attorney Larry McGuinness sued the NBA in 2013, on behalf of all ticket buyers (class action suit) when the 13-3 San Antonio Spurs traveled to Miami to face the 10-3 Heat for a late November game and Popavich again sat his star players.  Larry McGuinness sued the Spurs claiming that fans had “suffered economic damages” due to having to pay that premium ticket price to see a Spurs team devoid of its star players. McGuinness voluntarily dismissed this suit prior to taking the Spurs to court. Perhaps it was because David Stern acted and fined the Spurs $250,000 for Popovich’s decision. Or perhaps he learned what few rights ticket holders actually possess.

For the NBA’s part, the conglomerate is keenly aware of this issue. Therefore, the NBA has begun fining teams if the teams do not notify the league of which players will not be playing, within a certain time period. However, for a fan to hear even the day prior doesn’t help them with off-loading the tickets at a good price.  Additionally, NBA commissioner Adam Silver recently released a memo to all NBA teams warning of continuing this practice. Within this letter, Silver expressed a sentiment in which most fans do not consider, but the NBA is intimately concerned with legality. Silver expressed that advertisers may pull their money from marquee games if they aren’t sure whether or not the stars would be playing. This could potentially open the NBA up to lawsuits by these advertisers as well.

While most fans would most likely chalk up a disappointing missed opportunity to see their favorite player in the flesh as simply tough luck, several other fans are becoming more vocal about the situation.  Again, the frustration is being aired on sports show as this article is being penned.  But, in conclusion, it may be a long shot for a consumer to successfully sue the NBA for this continuing practice. However, since the NBA is a business which relies on advertisement and paying fans in order to make a profit, the way to affect change may be to withhold money from teams who regularly prevent their star players from playing in certain games. It remains to be seen whether or not this trend of resting players will become a routine practice, but what is certain is that come June and July when the playoffs start, this will all be a distant memory.

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Chad Jordan, Esq
Chad H. Jordan is a graduate of Texas Southern University, Thurgood Marshall Law School, in Houston, Texas. The Louisiana born and bred attorney, grew up with an equal love of law and music. The son of an attorney, Chad soaked up the unique culture and music that exists in New Orleans. After his graduation from law school in 2009, Chad has stayed close to his love of music by writing about the latest releases for such prominent blogs as Hypebeast and Hypetrak. Through out his tenure as an attorney, Chad has developed an expertise in negotiating and drafting contracts for recording artists, and drafting and negotiating sports agency agreements.

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