By Sheilla Dingus
August 25, 2016
A festive day of excitement quickly became a day of despair for 22,000 people on August 7, when they attended an ill-fated Hall of Fame football game which could more aptly be described as non-game since the event failed to take place. Football fans from Wisconsin, Indiana, and various other parts of the country poured into Canton, Ohio for the heralded first game of the NFL’s preseason. Numerous fans had taken precious vacation time from work to attend the game. Many traveled hundreds, of miles and some more than 2,000 miles to see their favorite players take the field after a long off-season. Area hotels filled, restaurants enjoyed an abundance of out of town customers, and the Hall of Fame, its greatest number of visitors for the year. The typically sold-out game failed to disappoint its host town, bringing in legions of fans, but unfortunately, through no fault of it’s own, Canton, Ohio could not reciprocate its visitors with a favorable, fun-filled experience.
At 8:00 a.m. that fateful day, a decking was scheduled to be removed from the field so that it could be prepared for the game. For reasons yet to be explained, it wasn’t removed until 2:45 p.m., at which time the NFL and HOF directed ground crew began to paint the midfield logo and end zone lettering for the scheduled game. No currently known or explained events can account for the nearly seven-hour delay in field preparation. All that can be currently determined is that for unknown reasons, despite, as stated in the complaint filed by Attorney Michael J. Avenotti, “the NFL. . .unfortunately has a history of scheduling games on unsafe playing surfaces. Indeed, it was only in July 2016 that the NFL established the Field Surface & Performance Committee, a committee intended to provide guidance regarding the safety and performance of NFL surfaces.” It seems both the league and Hall of Fame management failed to take the recommendations of the committee seriously, despite turf problems last year when Pittsburgh Steelers kicker Shaun Suisham suffered a career-ending injury as a result of improperly prepared turf.
Not only was the field ill-prepared, unknown to the fans, insufficient seating had been installed in preparation for the masses scheduled to arrive, despite litigation headed by Avenatti, for the same problem in Super Bowl XLV.
As the day wore on the field crew, running hours behind began to panic when the paint on the used turf covering the field failed to dry as game time approached. They attempted to heat the field to speed the drying process, but instead of rectifying the situation, this resulted in the melting of the rubber pellets that comprise the turf, creating a mess that was sticky and slimy in some places and hard as concrete in others. As a final attempt to correct the problem, about 2.5 hours prior to game time, the workers applied an enzymatic substance to the field, which a Packers employee noted could cause chemical burns upon contact with skin, and alerted his team to the danger.
What happened immediately afterrward was later recounted by Indianapolis Colts’ punter Pat McAfee. Players were
“told to get the f*** off the field, like everybody off the field. Everybody get off the field, everybody get off the field. So we go inside and Vinatieri, he’s like an NFLPA executive member, so there’s a lot of sh*t going on, with the NFLPA saying, Hey listen, if that field tore an ACL last year, ruined a guy’s career last year, they tried to fix the field but if that field isn’t good, then you guys can’t be playing on this sh*t, right? And it wasn’t just the NFLPA, it was the medical doctors from both teams. The guy that did my knee surgery was on the field saying no f***ing way … Everybody was all in with no way this is happening.”
A decision was made to cancel the game at least two hours prior to its scheduled start. The players knew the scoop but were for all practical purposes placed on lock-down with communication outside the locker room forbidden. The network was presumably advised of the situation, however the gates were opened for the fans, who were completely oblivious to what was taking place. As they anticipated the game, they shopped and purchased souvenirs – pricey t-shirts and hats; they bought $10 game programs and consumed $8 beers alongside pizza and polish sausages. The luckier of the fans found their seats while others gasped in frustration as they discovered their reserved seat did not exist. Finally everything came to a head at 8:00 p.m. when the cancellation of the game was finally announced. In shock and anger, the beleaguered fans battled the inevitable traffic jams to return from an event that never took place. The NFL begrudgingly only offered to refund the face value of the tickets, and not surprisingly, some of the fans decided to take legal action.
I caught up with Michael Avenatti, the attorney representing the fans, yesterday, and he graciously granted an interview, shedding light on events following the fiasco.
I first asked him how he became involved with the fans and he related that the initial plaintiffs located him through Google on the Monday following the non-game, and asked him to represent them because of his litigation in the seating debacle of Super Bowl XLV.
Avenatti originally filed the HOF Game suit in Ohio district court, and shortly thereafter made an offer to settle with the NFL for $450 per fan, a dollar amount much lower than most attendees had lost as a result of the cancelled game. The NFL waited until the deadline had nearly expired to respond, and then declined to accept Mr. Avenatti’s generous concession. Instead their counter-offer made a mockery of the fans’ plight. I asked Avenatti if this was anticipated. “Yeah, unfortunately it was the anticipated response…The league has a history of being cheap with it’s hard-working, paying fans, but I think this case is ultimately going to cost them far in excess of that amount,” he related. I wasn’t surprised by the response either; sadly it seems that the league is fonder of paying legal fees than in acknowledging its fan base in any meaningful way.
Fortunately in this specific scenario, the NFL may not have as much wiggle room as they normally find, as the Hall of Fame game tickets were not printed with the standard disclaimer found on pre-season or regular season tickets for games played in franchise stadiums. I verified this with Avenatti. “That is correct,” he said. “The language that is on those tickets is not going to save the league and the Hall of Fame unfortunately… I believe the League and Hall of Fame will be facing an uphill battle in trying to limit the damages…. I believe that number will be far in excess of $450,” [the nominal monetary amount the plaintiffs had initially agreed to settle for.]
While the original complaint against the NFL and Hall of Fame was filed in Ohio, on August 23, the plaintiffs filed a Notice of Voluntary Dismissal without Prejudice, which was accepted and so ordered by the Court. Avenatti then immediately refilled the complaint with the Central District of California. I asked him about the venue change to the Ninth Circuit, to which he understandably said that he “wasn’t at liberty to go into the details of the decisions that were made.” I tried to probe a little, stating that I believed the Ninth Circuit to be one of the more class-friendly jurisdictions, and since establishing class certification is a major litigation challenge it seemed as if it would be a favorable move but again, he (no doubt wisely) declined comment except to state that he believes “the Ninth Circuit to be a fair circuit for all parties.”
It is anticipated that the NFL will object to the jurisdiction chosen for the suit, and this appears to be anticipated and preempted by Mr. Avenatti through the classes established in the re-filing, specifically the “Cancelled Game California Subclass.” The other designated class in the suit is a broader, “Cancelled Game Class.” The original named plantiff, Greg Herrick is representative of both. The petition further states propriety of venue as such:
I learned yesterday that the presiding judge assigned is Terry J. Hatter Jr., a federal judge in senior status and former chief judge for the circuit. A Los Angeles Sentinel article paints a very favorable portrait:
“Growing up on the Southside of Chicago, Judge Terry J. Hatter Jr. knows the rough-and-tumble life of the inner city. So when he rules from the bench, he combines the law with real life experiences to arrive at fair and equal justice, based on reality. He has been a federal judge for the United States District Court for the Central District of California for over 30 years, and is the first African American to serve as Chief Judge of that district (1998-2001). Since 2005, he has assumed senior status.”
The piece goes on to state, “his strong work ethic is matched by his fairness in applying the law equally to all.” When I asked Avenatti his impressions of the Judge, once again he was understandably cautious in his response, alluding only to the generally recognized fact that he is “very well respected.”
Moving on from case strategies to clear-cut fact, I noted that Pat McAfee’s comments were prominently brought out in the amended filing, to which Avenatti responded, “McAfee described in great detail what happened before the game and unless he’s lying, and there’s no indication that he is… they were told not to tweet about it and not to say sh*t, and that’s a real problem for the league in that sense.” I injected that it seemed to me he’d found the smoking gun in the case but he was a bit more conservative in his response, “I don’t know about the smoking gun but I will tell you that there’s a lot of people are coming out of the woodwork with a lot of facts on this case on the Hall of Fame issues….so many people who live out there and so many people who know about the timeline.” Regarding the NFL and Hall of Fame management he strongly reiterated his stance, “They have yet to explain why they didn’t tell the fans at the same time they told the players and the network. They refused to answer our questions,.” emphasizing that “sooner or later the league is going to have to explain.”
Continuing with that line of thinking, I told Avenatti that I loved the fact that he’d called upon Roger Goodell to hang on to his cell phone. Avenatti replied, “That’s gonna continue because we want to see what he knew and what went on …we expect that there will be some text messages that were sent in connection with this game that are not going to be positive for the league and the HOF.” I interjected at that point that I found it pleasantly ironic that he was using the strategy Goodell employed against Tom Brady in his Second Circuit appeal against the Commissioner now, to which Avenatti, simply noted, “I’m going to put that in the category of using his standard on him.”
As we wrapped up the interview, I asked if there was anything that he’d like to add. He concluded the conversation with the following statement, “It is an honor and a privilege for me and our firm to represent the fans – 22,000 individuals…and we look forward to adjudicating it on their behalf… and to seek a fair and reasonable outcome as opposed to making them eat whatever the league gives to them.”
I sincerely hope he is successful in that endeavor.
Here’s a link to the amended California filing for those who would like to read the document for themselves.
Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.