Zuniga was hit in the face with a foul in Wrigley in 2018. We have already discussed such cases and decisions through the standard MLB defense. She was eating a sandwich at the time and didn’t see the ball that left her with facial fractures (and four days in the hospital).
Zuniga used a paper ticket her father won in an office raffle. After she filed a lawsuit, MLB and the Cubs argued that she had no legal right to sue. MLB cited the tiny imprint on the back of the ticket stating that “baseballs could be hit in the stands, that the crowd should remain vigilant and that the cubs and other units would not be held responsible for any injuries resulting from this.”
The language also states that any legal dispute against the MLB or the Cubs arising out of their participation in Wrigley Field “must be resolved through binding arbitration … in Chicago, Illinois.”
Cook County Circuit judge Kathy Flanagan, however, ruled with Zuniga, arguing that the conditions on the ticket were “incomprehensible”.
Now the appellate court has approved. In a letter to the court, Judge James Fitzgerald Smith stated that arbitration clauses are generally enforceable even when consumers are presented in a “take-it-or-leave-it” rule. Smith declined to enforce this provision, however:
It does not appear that the ticket itself or any other circumstance was sufficient to alert the plaintiff. We also wonder how far before attending a game a person can reasonably be burdened with the need to read the terms and conditions on the back of a baseball ticket, and we believe MLB and the Cubs are the most realistic opportunity a person has , overstate reading the full Arbitration Rules on a cell phone as soon as he or she is in the excitement of entering Wrigley Field and realizes the need to do so. Given that the Cubs have struck off any information that a person has the right to terminate the arbitration within seven days, it seems an inappropriately short amount of time for a person whose injuries are as serious as the plaintiff has a reasonable opportunity after the game to find out about the right to end the arbitration and to take the necessary measures.
That decision doesn’t even address the fact that most of the tickets in use today are electronic or digital, which adds further questions of notice and understanding for fans. Few people believe that fans read or understand what works like a liability contract without input or bargaining power from fans. The MLB mandates these waivers and onerous arbitration terms to protect itself from lawsuits.
This opinion could significantly change this unequal negotiating position. However, concerns remain that despite greater disclosure, fans will have little influence or rights over such disputes. In particular, the court recognized that such authoritative language is enforceable. The only problem was that “in this case there are factors that make it difficult or tedious to find or obtain the arbitration provision at the time the ticket is used, so we cannot legitimately say that the plaintiff knew what she agreed. ”Legislation could change this unequal bargaining position with large consumer protection provisions for such lawsuits.
For now, however, this is a win for fans who are too often treated as “lovable losers” by MLB.
Here is the opinion: Zuniga v. MLB
Kudos to Olga Jablonski for referring the case.