Professional Sports Franchises Enforce Measures to Keep Out Opposing Fans, but Are They Legal?

Elaine C. Naughton, KLJ Production Editor[1]

Earlier this month, the Nashville Predators faced off against the Chicago Blackhawks at Bridgestone Arena in Nashville, Tennessee. However, the roughly 470-mile journey was not the only obstacle for Chicago fans hoping to make the trip to see their team play. Prospective ticket buyers were warned that a “restricted sales area” had been implemented for that particular game.[2] This meant that sales would be restricted to residents of the Predators viewing area: Tennessee, Kentucky, Mississippi, Alabama, and Georgia.[3] Residency was verified based on the billing address of the credit card used to purchase tickets.[4] Although this type of geographic restriction on ticket sales is frustrating, tactics like this are not new.

The Nashville Predators began targeting Blackhawks fans in 2013 with their “Keep the Red Out” campaign and ticket bundling scheme.[5] Fans looking to buy a single-game ticket against the Blackhawks at the Bridgestone Arena were forced to purchase another single-game ticket against a different team during the same season.[6]  The Predators have since revised the “Keep the Red Out” campaign in a number of ways, including greater incentives for season ticket holders, more control over the secondary market for tickets, and geographic restrictions on ticket sales.[7]

Such restrictions are not unique to hockey. In 2014, the Seattle Seahawks were sued by a fan of the San Francisco 49ers for a similar geographic restriction placed on ticket sales for the NFC Championship game played that year in Seattle against the 49ers.[8] The plaintiff claimed the geographic restriction was unlawful for a number of reasons, including economic discrimination, public accommodation discrimination, and consumer protection violations.[9] The court disagreed and dismissed the case. [10]

The plaintiff in that case asserted a “free-standing” economic discrimination claim, which, according to the court, had no legal basis.[11] Assuming the plaintiff was trying to invoke the Privileges and Immunities Clause of the U.S. Constitution, the court stated that “recreational activities such as attending a football game” are not a privilege covered by the Clause.[12] As for the plaintiff’s federal public accommodation claim under Title II of the Civil Rights Act of 1964, state of residence is not covered as a basis of discrimination.[13] The equivalent Washington state law likewise did not extend its protection to discrimination on the basis of state of residence.[14] Finally, the plaintiff invoked the Washington Consumer Protection Act, which prohibits unfair or deceptive practices in trade or commerce.[15] However, the plaintiff failed to show that the geographic restriction had the capacity to deceive a substantial portion of the public.[16]

The outcome of this case does not necessarily foreclose the possibility of a successful lawsuit in another jurisdiction on different facts. Some of the weakness of this case stemmed from the plaintiff’s own pleadings. Furthermore, discrimination laws and consumer protection laws are likely to vary from state to state, just as the particular facts of another case may vary. Nevertheless, the legality of geographic restrictions may not be the most important issue raised by such ticketing policies.

While there are certainly legitimate reasons behind geographic restrictions, there are also some major criticisms. In the past, teams have restricted ticket sales after several attacks on opposing fans.[17] The Predators claim that the motive behind their ticketing policies is to better serve their fan base.[18] Both safety and serving the hometown fan base are perfectly valid reasons. On the other hand, critics of geographic restrictions have noted that such policies risk shutting out fans that have relocated to other states and fans that originally hail from other states.[19] A franchise has an obvious interest in cultivating a strong fan base, catering to their hometown crowd, or ensuring the safety of all patrons. However, these ticketing policies are effectively eliminating an aspect of competitive sports that has existed since the beginning. There has always been a crowd of hometown fans and opposing fans. Now the perception that there are too many opposing fans has led to efforts to keep them out completely, changing a fundamental aspect of competitive sports.

[1] J.D. expected May 2016.
[2] Steve Rosenbloom, Predators Wonks Are at It Again, Blackhawks Fans, Chi. Trib., Jan. 12, 2016, http://www.chicagotribune.com/sports/rosenblog/ct-blackhawks-fans-predators-tickets-rosenbloom20160112-column.html.
[3] Id.
[4] Id.
[5] Jimi Russell, Preds Roll Out New Ticket Policy, Nashville Predators (Aug. 15, 2013, 10:00 PM), http://predators.nhl.com/club/news.htm?id=680283.
[6] Id.
[7] George Scoville, New Variations on Nashville Predators “Keep the Red Out” Campaign Still Generally Bad Ideas, On the Forecheck, (Jan. 24, 2015 12:00 PM), http://www.ontheforecheck.com/2015/1/24/7871331/nashville-predators-opinion-grow-the-gold-keep-the-red-out-still-a-bad-idea.
[8] Williams v. NFL, No. C14-1089 MJP, 2014 U.S. Dist. LEXIS 155488, *3 (W.D. Wash. Oct. 31, 2014).
[9] Id. at *4.
[10] Id. at *11.
[11] Id. at *6.
[12] Id.
[13] Id. at *7.
[14] Id.
[15] Id.
[16] Id. at *8.
[17] Kavitha A. Davidson, Sorry, Violent NFL Fans, It’s Time You Lose, Bloomberg View, Jan. 14, 2014, http://www.bloombergview.com/articles/2014-01-14/sorry-violent-nfl-fans-it-s-time-you-lose.
[18] Russell, supra note 4.
[19] Kavitha A. Davidson, Tampa Bay’s Hockey Dress Code Insults Lightning Fans, Bloomberg View, June 1, 2015, http://www.bloombergview.com/articles/2015-06-01/tampa-bay-s-hockey-dress-code-insults-lightning-fans.