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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 1 of 22

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TOMMY BADEAUX AND CANDIS * CIVIL ACTION NO. 19-cv-566
LAMBERT, individually and o/b/o NEW *
ORLEANS SAINTS SEASON TICKET *
HOLDERS, NEW ORLEANS SAINTS * SECTION M, DIVISION 5
NATIONAL FAN BASE a/k/a THE WHO *
DAT NATION, ANY PARTY WITH *
INTEREST THAT HAS BEEN AFFECTED * JUDGE SUSIE MORGAN
BY THE OUTCOME, *
* MAGISTRATE JUDGE MICHAEL
Plaintiffs, * NORTH
*
versus *
*
ROGER GOODELL as COMMISSIONER *
OF THE NATIONAL FOOTBALL *
LEAGUE, NATIONAL FOOTBALL LEAGUE *
And NFL PROPERTIES, LLC, Successor -in- *
Interest to NFL PROPERTIES, INC. *
*
Defendants. *
*
*****************************

NFL DEFENDANTS’ BRIEF REGARDING CAFA JURISDICTION, STANDING, AND
RIGHT OF PLAINTIFFS TO SEEK EXTRAORDINARY WRIT OF MANDAMUS

The NFL Defendants—the National Football League (“NFL”), NFL Properties LLC

(“NFL Properties”), and Roger Goodell as Commissioner of the NFL (“the Commissioner”;

collectively with the NFL and NFL Properties, “the NFL Defendants”)—respectfully provide this

brief to address the issues identified in this Court’s January 26, 2019 Order (R. Doc. 4), jurisdiction

under the Class Action Fairness Act (“CAFA”), Plaintiffs’ standing to bring this action, and

Plaintiffs’ right to seek the extraordinary writ of mandamus.

I. Introduction

The NFL is a League of 32 professional football teams, each with its own nation of fiercely

loyal fans. NFL games are played according to a uniform set of playing rules, agreed to and
Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 2 of 22

established by a vote of all of the NFL’s teams. As part of those rules,1 the teams have agreed that

the decision to call a penalty on any given play in any game is up to the officials on the field, with

any dispute being resolved by the Referee as head of the officiating crew. NFL Rule 15, § 1, Arts.

3, 5. And, because the officials on the field are humans, like the players and coaches, errors will

happen. The NFL parties do not dispute that they have previously advised the Saints, including the

club’s head coach, that one or more penalties—for pass interference or illegal helmet-to-helmet

contact—were mistakenly not called late in the NFC Championship Game, and that the NFL would

like its officials on the field to make these calls. This was acknowledged immediately after the

game to the coach of the New Orleans Saints by NFL Senior Vice President of Officiating Al

Riveron. However, overruling the Referee on the field and directing that a penalty be called is not

within the Commissioner’s discretion under NFL Rules 15, 17, or any rule. Specifically, Rule 15,

§ 1, Article 3 provides that “[t]he Referee is to have general oversight and control of the game[,]”

and that “[t]he Referee’s decisions upon all matters not specifically placed under the jurisdiction

of other officials by rule are final.”2 In light of this Referee finality in Rule 15, then Rule 17 is

inapplicable3; but even if it Rule 17 applied, it is unequivocally a discretionary mechanism.

Accordingly, no ticketholders or fans have a legally cognizable right to ask a Court to order the

Commissioner to act on an officiating omission.

1
2018 Official Playing Rules of the National Football League (“NFL Rules”), available at
https://operations.nfl.com/media/3277/2018-nfl-rulebook_final-version.pdf and attached hereto as
Exh. A.
2
See Exh. A, at 62 (emphasis added).
3
NFL Rule 17, § 2, Art. 2 (Exh. A, at 67) (“The Commissioner will not apply authority in cases
of complaints by clubs concerning judgmental errors or routine errors of omission by game
officials. Games involving such complaints will continue to stand as completed.”) (emphasis
added).

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2019 will mark the NFL’s centennial season. Throughout that time, one constant is that the

results of a game are conclusive and not subject to protest or challenge. To our knowledge, no

game has ever been replayed. This has been true despite war, depression, natural disasters, civil

disorder, terrorism, or pandemic. And it has certainly been true notwithstanding errors in the

enforcement of playing rules or even the deliberate evasion of those rules. Plaintiffs here seek an

extraordinary order from this Court requiring the Commissioner to exercise his discretionary

authority under NFL Rule 17, a rule providing the Commissioner the discretion to take corrective

action if a “calamity” occurs that is so “extraordinarily unfair or outside the accepted tactics

encountered in professional football,” to overrule the final decision of the Referee on the field and

order the first replaying of a game in 100 years (as well as damages they claim arise from the

outcome of an athletic event). But even if Rule 17 gave the Commissioner such discretionary

power, which it does not, a long line of authority cautions against the courts becoming a forum to

litigate such decision-making. While the putative class of Plaintiff ticketholders and fans’

disappointment and even anger over the outcome of last week’s game is entirely understandable,

it does not present a legal claim that can be remedied by this Court. The Plaintiffs’ Petition should

therefore be dismissed with prejudice.

Courts, including this court, have made clear time and again that, regardless of the level of

fans’ dissatisfaction in the outcome of a game, who played in the game, or how the game is

conducted, there is no room for the courts to resolve fans’ desire for a different outcome of an

athletic event. See, e.g., Mancina v. Goodell, 2013 WL 393041, *2-3 (E.D. La. 1/30/2013)

(Berrigan, J.) (“The plaintiff has not provided legal support for the argument that a sport fan has

rights greater than those of a spectator, regardless of how ardent his team devotion may be.”).

The Commissioner’s discretion under NFL Rule 17 to take “corrective measures,” even to direct

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the re-playing of all or a portion of a game, is just that—discretion—and not a mandate or a

ministerial act a Court can require him to undertake.

The Petition brought by Plaintiffs Tommy Badeaux and Candis Lambert “individually and

on behalf of New Orleans Saints Season Ticket Holders, New Orleans Saints National Fan Base

a/k/a The Who Dat Nation and any party with interest that has been affected by the outcome,”4

asks this Court to mandate the extraordinary step of ordering a replay of the NFC Championship

Game, and for damages to all putative class member Saints fans. The consequences of ordering a

replay of the NFC Championship Game or any portion of the game cannot be overstated. See

Mayer v. Belichick, 605 F.3d 223, 236-37 (3d Cir. 2010) (“At the very least, a ruling in favor of

Mayer could lead to other disappointed fans filing lawsuits because of ‘a blown call’ that

apparently caused their team to lose or any number of allegedly improper acts committed by teams,

coaches, players, referees and umpires, and others. This Court refuses to countenance a course of

action that would only further burden already limited judicial resources and force professional

sports organizations and related individuals to expend money, time, and resources to defend

against such litigation.”). The Plaintiffs can point to no case that has held to the contrary, and they

ask this Court to be the first.

The petition filed in Civil District Court for the Parish of Orleans meets all of the

requirements for this Court’s CAFA jurisdiction. See 28 U.S.C. § 1332(d). The two named

plaintiffs explicitly seek to bring their claims in a representative capacity on behalf of classes of

ticketholders, fans, and others. They expressly seek monetary damages for all NFC Championship

Game ticketholders, which indisputably amounts to more than $16 million put in controversy by

the Petition; in addition to mandamus relief the value of which would independently eclipse $5

4
Petition, at 1, 4 (R. Doc. 1-1, at 2, 5).

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million; plus even further unquantified categories of damages, all of which together make clear

that the sum or value of the matter put in controversy by Plaintiffs’ Petition is far greater than

CAFA’s amount-in-controversy threshold. And there similarly should be no dispute that CAFA’s

requirement for minimal diversity of citizenship is met. Having jurisdiction over Plaintiffs’ claims,

and as further set forth below, this Court should respectfully find that Plaintiffs lack standing to

bring any of their claims, and that, even if they had standing to bring such claims, they have no

right to the mandamus relief they seek.

II. This Court Has Jurisdiction Under CAFA.

This Court has directed the NFL Defendants to “establish the Court’s jurisdiction under

the Class Action Fairness Act, including the individual amount in controversy requirement.”

CAFA provides a basis for federal courts’ original jurisdiction when a Plaintiffs’ suit is a “civil

action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of

interest and costs, and is a class action in which—(A) any member of a class of plaintiffs is a

citizen of a State different from any defendant[.]” 28 U.S.C. § 1332(d)(2). The initial pleading

filed by Plaintiffs in Civil District Court for the Parish of Orleans, State of Louisiana, and served

on the Commissioner on January 22, 2019, entitled “Petition for Writ of Mandamus” (herein, “the

Petition”), meets each of these requirements.

A. Plaintiffs’ Petition is a CAFA Class Action.

First, the Petition unequivocally is a CAFA “class action.” See 28 U.S.C. § 1332(d)(1)(B)

(defining “class action” to mean “any civil action filed under rule 23 of the Federal Rules of Civil

Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought

by 1 or more representative persons as a class action”). In determining whether an action is a “class

action” subject to CAFA, courts do not look to the label applied to the action by a plaintiff but to

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the substance of what the plaintiffs seek to effect. See La. ex rel. Caldwell v. Allstate Ins. Co., 536

F.3d 418, 424 (5th Cir. 2008) (“It is true that the words ‘class action’ or ‘mass action’ do not appear

in Louisiana’s complaint. However, that does not end our inquiry. It is well-established that in

determining whether there is jurisdiction, federal courts look to the substance of the action and not

only at the labels that the parties may attach.”) (citing Grassi v. Ciba-Geigy, Ltd., 894 F.2d 181,

185 (5th Cir. 1990), abrogated on other grounds, Miss. Ex rel. Hood v. AU Optronics Corp., 571

U.S. 161, 176 (2014); see also Williams v. Employers Mut. Cas. Co., 845 F.3d 891, 899 (8th Cir.

2017) (holding that CAFA applied to a suit brought in a representative capacity even though the

complaint did not expressly reference a state’s class action statute but only a state’s substantive

statute that did not otherwise provide for suits in a representative capacity: “If we interpreted ‘any

civil action filed under Rule 23’ or a state-law analogue to refer only to cases that specifically

mention Rule 23 or a state-law analogue…, a plaintiff could avoid federal jurisdiction for a lawsuit

that resembles a class action in all respects simply by omitting from the complaint the name of the

rule or statute under which she proceeds.”).

In both the preamble paragraph to the Petition and in the Petition’s Prayer for Relief, as

well as in the Petition’s caption, Mr. Badeaux and Ms. Lambert allege that they are bringing the

action in a representative capacity, both “individually and on behalf of New Orleans Saints Season

Ticket Holders, New Orleans Saints National Fan Base a/k/a The Who Dat Nation and any party

with interest that has been affected by the outcome.”5 Additionally, when verifying the allegations

of the Petition in their sworn Verifications, Mr. Badeaux and Ms. Lambert verified the allegations

5
Petition, at 1, 4 (R. Doc. 1-1, at 2, 5) (emphasis added).

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of the “Petition for Writ of Mandamus and/or Class Action Damages.”6 On the face of the Petition,

therefore, it was Plaintiffs’ sworn intent to bring their claims as a class and in a representative

capacity. Mr. Badeaux and Ms. Lambert could only purport to bring their claims in a representative

capacity in Louisiana court, as reflected multiple times in the Petition and in their Verifications,

pursuant to the state analogue to Rule 23, Louisiana Code of Civil Procedure articles 591, et seq.

See, e.g., La. C.C.P. art. 592(A) (establishing as the only prerequisite to moving for certification

of a class the filing of an “initial pleading demanding relief on behalf of or against a class”)

(emphasis added). Neither the Louisiana mandamus statute nor any other statute applicable to the

claims pled by Plaintiffs provide an alternative path for bringing their claims in the representative

capacity they seek.

B. Plaintiffs and Defendants Comprise CAFA’s Required Minimal Diversity of
Citizenship.

Unlike the complete diversity requirement for 28 U.S.C. § 1332(a), the diversity of

citizenship requirement in CAFA only requires that at least one Plaintiff be a citizen of a different

state from at least one Defendant. 28 U.S.C. § 1332(d)(2)(A); see also Hollinger v. Home State

Mut. Ins. Co., 654 F.3d 564, 569 (5th Cir. 2011). Additionally, for CAFA purposes only, the

citizenship of unincorporated associations will be deemed to be only those states where they have

their principal place of business and under whose laws they are organized. 28 U.S.C. §

1332(d)(10).

6
Petition Verifications (R. Doc. 1-1, at 7, 8) (emphasis added). No post-filing attempts by a
plaintiff to change the class-nature of their petition would be effective to alter CAFA jurisdiction.
See La. v. Am. Nat. Property Cas. Co., 746 F.3d 633, 639 (5th Cir. 2014) (“The statute defines class
action as any civil action filed under Rule 23 or a state class action statute. Thus, federal
jurisdiction under the statutory provision of CAFA is explicitly concerned with the status of an
action when filed—not how it subsequently evolves. And, it is undisputed that this action was filed
as a class action, consistent with the standards of the statute.”) (internal citations omitted; emphasis
in original).

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Here, there should be no dispute that named Plaintiffs Mr. Badeaux and Ms. Lambert are

citizens of the State of Louisiana. The NFL Defendants are not citizens of the State of Louisiana,

and minimal diversity is therefore satisfied. Defendant NFL Properties LLC is a Delaware Limited

Liability Company with its principal place of business in New York City.7 The NFL is an

unincorporated association comprised of 32 separately owned and independently operated NFL

Member Clubs, with its principal place of business in New York City, as well.8 The Commissioner

also is domiciled in and a citizen of New York. Accordingly, because the NFL Defendants are all

citizens of New York (and, additionally as to NFL Properties LLC, Delaware), while Mr. Badeaux

and Ms. Lambert are citizens of Louisiana, CAFA’s requirement of minimal diversity is met.

C. Plaintiffs’ Petition Meets CAFA’s $5 Million Amount-In-Controversy
Threshold.

The final element for CAFA jurisdiction is that “the matter in controversy” alleged in the

Petition “exceeds the sum or value of $5,000,000[.]” 28 U.S.C. § 1332(d)(2). “The required

demonstration concerns what the plaintiff is claiming (and thus the amount in controversy between

the parties), not whether the plaintiff is likely to win or be awarded everything he seeks.” Robertson

v. Exxon Mobil Corp., 814 F.3d 236, 240 (5th Cir. 2015) (internal quotation marks omitted).

Where, as here, the case is removed from a state jurisdiction that does not require
the plaintiff to specifically plead the amount in controversy, the defendant may
satisfy this burden by demonstrating that it is ‘facially apparent’ from the petition
that the claims are above the jurisdictional amount. Under these circumstances, the
defendant need not prove the jurisdictional amount to a legal certainty. It is enough
that the defendant demonstrates that the plaintiff's claim ‘more likely than not’
meets the jurisdictional requirement.

7
See Citation for Service (R. Doc. 1-1, at 11) (identifying the address of the NFL’s “corporate
offices”).
8
See Clarett v. NFL, 306 F. Supp. 2d 379, 383 (S.D.N.Y. 2004).

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JMCB, LLC v. Bd. of Commerce & Indus., 293 F. Supp. 3d 580, 587 (M.D. La. 2017) (internal

citations and quotation marks omitted). “If it is not apparent from the face of the complaint, then

the court may rely on summary judgment type evidence to ascertain the amount in controversy.”

Royal Alice Properties, LLC v. Atkins, 2013 WL 4434951, *4 (E.D. La. 8/14/2013). “[T]hat the

removing party bears the burden of proving the amount in controversy does not mean that the

removing party cannot ask the court to make common-sense inferences about the amount put at

stake by the injuries the plaintiffs claim.” Robertson, 814 F.3d at 240.

Plaintiffs’ Verifications confirm that their Petition is, in part, a Petition “for Class Action

Damages.” Exh. A, at Verifications. The various categories of damages and remedies in Plaintiffs’

Petition each independently support that the CAFA amount-in-controversy threshold is exceeded.

The first category consists of Plaintiffs’ allegation of “monetary loss for ticket holders, who

purchased tickets with the presumption of integrity and fairness[.]” Petition, ¶ 8. As NFL Executive

Vice President and Chief Financial Officer Joseph Siclare attested, “The average ticket price to

attend the 2019 National Football Conference Championship Game in New Orleans, Louisiana,

on January 20, 2019, was approximately $230,” with more than 72,000 ticketholders attending the

game.9 Accordingly, just this one category of damages alleged on the face of the Petition is more

than $16.5 million, more than three times the CAFA threshold. The Court need look no further to

examine CAFA amount-in-controversy.

In addition to this category of damages, Plaintiffs categorized six other types of

compensable injuries they claim to have suffered: “[p]ast, present and future mental anguish and

emotional trauma”; “[p]ast, present and future loss of faith in the National Football League”;

“[p]ast, [p]resent and future loss of enjoyment of life”; “[p]resent and future loss of entertainment”;

9
Affidavit of Joseph Siclare (Jan. 25, 2019), at ¶ 2 (R. Doc. 1-2, at 3).

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“[d]istrust of the game which has become the National pastime”; and “[o]ther damages itemized

at the trial of this matter.” Petition, ¶ 11(a)-(g). While the class of “New Orleans Saints National

Fan Base a/k/a The Who Dat Nation” may be difficult to ascertain, just one change.org petition

promoting exactly the same relief sought in Plaintiffs’ lawsuit—a common-sense barometer of

how many people may be in the “Who Dat Nation,” at least as to this particular issue—contained

760,569 signatures.10 If that number is indicative of the “Who Dat Nation” class, then the six

categories of damages would need to only average $6.57 per person to reach CAFA’s $5 million

threshold.11

Independently, the value of the mandamus relief sought by Plaintiffs, the rescheduling of

the NFC Championship Game or some portion thereof,12 is well in excess of CAFA’s $5,000,000

threshold, based on the costs associated with organizing and re-playing all or a portion of the NFC

Championship Game and the delays this would necessarily cause in conducting Super Bowl LIII.

See Affidavit of Joseph Siclare, at ¶ 3; see also Royal Alice Properties, 2013 WL 4434951 at *4

(calculating the value of the requested mandamus relief for purposes of jurisdictional amount-in-

controversy); Hamp’s Constr., LLC v. Tag-Miss. Enters., LLC, 2009 WL 2356671, *2-3 (E.D. La.

7/27/2009) (valuing damages and requested injunctive relief separately for determining amount in

10
https://www.change.org/p/we-want-an-nfc-championship-rematch-sunday-jan-27-after-refs-
missed-call.
11
Admittedly, taking the Plaintiffs’ allegations and applying logic and common sense as directed
by Robertson devolves into something that feels absurd, but as noted above the required
demonstration concerns what the plaintiff is claiming (and thus the amount in controversy between
the parties), not whether the plaintiffs are likely to win or be awarded everything they seek.
12
Plaintiffs seek “a writ of mandamus be ordered by th[e] Court[,]” Petition at 4 (Prayer for Relief),
presumably to direct Mr. Goodell as Commissioner of the NFL to reverse the Game’s result or to
reschedule the Game either from its “‘beginning or from the point at which the extraordinary act
occurred.’” Petition, ¶ 4 (quoting NFL Rule 17, § 2, Art. 3).

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controversy); Cheek v. Horton, 2008 WL 3500369, *2 (E.D. La. 8/11/2008) (“According to the

Supreme Court, in cases seeking equitable relief, such as an accounting, it is well established that

the amount in controversy is measured by the value of the object of the litigation.”) (internal

quotation marks and citations omitted); Waters v. Ferrara Candy Co., 873 F.3d 633, 634 (8th Cir.

2017) (considering the value of “unspecified injunctive relief” in determining the amount in

controversy).13 Thus, entirely independent of the damages claims sought by Plaintiffs, the value of

the requested mandamus relief renders it facially apparent from the Petition that the total amount-

in-controversy exceeds CAFA’s $5,000,000 threshold. And when combined with all of the relief

sought by Plaintiffs, it eclipses that threshold by several multiples.14

III. Plaintiffs Have No Standing to Pursue Claims for Dissatisfaction with the Outcome
of a Football Game.

At its essence, this suit was filed because the Plaintiffs, fans and ticketholders of an athletic

event, disagree with the outcome of that game. It is well settled that this kind of dispute implicates

no legally cognizable rights. The Plaintiffs, therefore, lack Article III standing. See McConnell v.

Fed. Election Comm’n, 540 U.S. 93, 227-28 (2003), overruled on other grounds, Citizens United

v. Fed. Election Comm’n, 558 U.S. 310 (2010) (finding lack of Article III standing based on the

lack of a “legally cognizable right”); see also Gulf Restoration Network v. U.S. Army Corps of

Engineers, 2016 WL 4987256, *4 (E.D. La. 9/19/2016).

13
Plaintiffs also seek the further catch-all category of “all general and equitable relief.” Petition,
Prayer for Relief.
14
Furthermore, Plaintiffs’ Petition does not fit within either of the exceptions to CAFA jurisdiction
at 28 U.S.C. §§ 1332(d)(3) or (4). Both of them require that a defendant be “a citizen of the State
in which the action was originally filed,” in addition to meeting other requirements. Under the
citizenship definition applicable under 28 U.S.C. § 1332(d)(10), none of the NFL Defendants are
in-state Defendants, so neither of these exceptions to CAFA will apply.

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This Court was recently called on to reaffirm this fundamental principle of law in another

controversy between fans and ticketholders of the New Orleans Saints on one hand and the NFL

and its Commissioner on the other, with regard to the 2012 “Bountygate” dispute. Regarding the

suspension of certain Saints personnel in the wake of an NFL investigation into payment of

“bounties” for deliberately causing injuries to opposing teams’ players, this Court ruled that Saints

season ticketholders did not have any legally cognizable rights to assert against the NFL and the

Commissioner arising from alleged “diminishment of ticket value, emotional damage and damage

to the ‘competitive quality’ of the Saints.” Mancina v. Goodell, 2013 WL 393041, *1 (E.D. La.

1/30/2013). Much as in this matter, a Plaintiff sought remedies against the NFL Defendants on

behalf of a class of Saints fans and ticketholders for disagreement with how the NFL and the

Commissioner administered the NFL Rules with regard to the Saints. The Mancina Court

recognized that a ticket to a Saints game only provided a limited set of rights:

This ticket only grants entry into the stadium and a spectator seat for the specified
NFL game. Admission may be refused or ticket holder ejected in the sole discretion
of the Saints and/or the venue manager, without refund if the ticket holder is
disorderly or fails to comply with these ticket terms or any security measures or is
engaging in illegal activity including, but not limited to, ticket scalping.

Id. at *2. The Court analyzed that “the only issue is whether the ticket provides any of the ‘rights’

upon which the plaintiff has sued,” and “adopt[ed] in full the reasoning of” the Third Circuit in

Mayer v. Belichick:

“Significantly, our ruling also does not leave [plaintiff] without any recourse.
Instead, fans could speak out against the [defendant] their coach, and the NFL itself.
In fact, they could even go so far as to refuse to purchase tickets or NFL-related
merchandise.... However, the one thing they cannot do is bring a legal action in a
court of law.”

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Mancina, 2013 WL 393041 at *2 (quoting Mayer, 605 F.3d at 237).15

In Mayer, the Third Circuit affirmed the dismissal of a fan suit by the District of New

Jersey arising from a New York Jets fan’s claims that the surreptitious videotaping of opposing

teams’ signals by the New England Patriots and the alleged failures of the NFL to prevent or

adequately sanction that misconduct had breached New York Jets season ticketholders’

expectations of observing a fair game. 605 F.3d at 225. The court held that the plaintiff fans and

ticketholders, even if “victims” of unfairness, had not been deprived of any legally cognizable

right and therefore did not have standing, and held in terms that are directly applicable here that

bringing such suits is a waste of judicial resources:

[W]e do recognize that Mayer alleged that he was the victim, not of mere poor
performance by a team or its players, but of a team’s ongoing acts of dishonesty or
cheating in violation of the express rules of the game. Nevertheless, there are any
number of often complicated rules and standards applicable to a variety of sports,
including professional football. It appears uncontested that players often commit
intentional rule infractions in order to obtain an advantage over the course of the
game. For instance, a football player may purposefully commit pass interference
or a “delay of game.” Such infractions, if not called by the referees, may even
change the outcome of the game itself. …

15
The Mancina Court classified the ticketholders’ and the fans’ dilemma as “suffering,” but also
observed that the ticketholder had no more right than the ticketless fan, and that those ephemeral
rights were not actionable:
The Court has a more fundamental problem with the plaintiff’s assumption that his
bona fide mental suffering entitles him to a cause of action merely because he has
purchased a season ticket. First, as this Court has previously stated, even if the
process surrounding “Bountygate” was initially procedurally flawed, it resulted in
a revised discipline accepted by those involved based on the finding that “conduct
detrimental” to the game of football had occurred. See Vilma v. Goodell, 2013 WL
192436 (E.D. La. 2013). In addition, the only distinction between a ticket holder
who is a fan and a ticketless fan is the ticket holder’s right to entry and seating at
the game granted by the license. The Court rejects the notion that any mental
suffering resulting from the Saints’ last season is peculiar to a ticket holder because
he was able to purchase and utilize one of those prized season tickets. Rather, that
agony has been much more widely felt by the Who Dat Nation.

2013 WL 393041 at *3.

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At least in this specific context, it is not the role of judges and juries to be second-
guessing the decision taken by a professional sports league purportedly enforcing
its own rules. In fact, we generally lack the knowledge, experience, and tools in
which to engage in such an inquiry. For instance, there appear to be no real
standards or criteria that a legal decision-maker may use to determine when a
particular rule violation gives rise to an actionable claim or should instead be
accepted as a usual and expected part of the game. At the very least, a ruling in
favor of Mayer could lead to other disappointed fans filing lawsuits because of
“a blown call” that apparently caused their team to lose or any number of
allegedly improper acts committed by teams, coaches, players, referees and
umpires, and others. This Court refuses to countenance a course of action that
would only further burden already limited judicial resources and force professional
sports organizations and related individuals to expend money, time, and resources
to defend against such litigation. See, e.g., Bickett, 472 N.Y.S.2d 245, 122 Misc.2d
at 883 (“Buffalo News sports editor, Larry Felser, in his column of May 30, 1983
warned of the dire consequences of permitting such a theory of recovery to exist,
‘If the fan (plaintiff) wins against the Bills, every lawyer in Western New York
could use the precedent to finance a vacation to the Riviera.’”).

605 F.3d at 236-37 (emphases added). The Plaintiffs’ action here is precisely the “blown call”

claim the Mayer court warned against.

“The uniform weight of established case law holds that a failure to satisfy the subjective

expectations of spectators at a sporting event is not actionable under law.” Bowers v. Fed’n

Internationale de L’Automobile, 461 F. Supp. 2d 855, 859 (S.D. Ind. 2006), aff’d 489 F.3d 316

(7th Cir. 2007). In addition to Bowers, Mancina, and Mayer, these cases include:

 Castillo v. Tyson, 701 N.Y.S.2d 423, 424–25 (N.Y. App. Div. 2000) (dismissing action for

refund of ticket price for Holyfield-Tyson bout in which Mr. Tyson was disqualified for

biting Mr. Holyfield’s ear; “plaintiffs received what they paid for, namely, the right to view

whatever event transpired”);

 Charpentier v. Los Angeles Rams Football Co., 89 Cal. Rptr. 2d 115, 124 (1999)

(dismissing claim for breach of covenant of good faith and fair dealing for failure to state

a claim because “plaintiff did not buy the right to watch a good team or to have enlightened

(in his opinion) management decisions made”);

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 15 of 22

 Strauss v. Long Island Sports, Inc., 60 A.D. 2d 501, 510 (N.Y. App. Div. 1978) (finding

that complaint by fan regarding non-participation by certain professional basketball players

“does not state a cause of action”: “Assuming, as plaintiff does, that every person who

bought a season ticket did so in the expectation that Dr. J would play for the Nets, any such

expectation was un-reasonable as a matter of law…..”); and

 Bickett v. Buffalo Bills, Inc., 472 N.Y.S.2d 245, 248 (N.Y. Sup. Ct. 1983) (dismissing for

failure to state a claim, rejecting the argument that plaintiff could state a cause of action

based upon the “poor performance” and “diminished quality” of the Bills during player

strike replacement games, observing that “diminished quality lies in the eye of the

beholder”).

These cases almost uniformly focus on the lack of cognizable rights by ticketholders, who

at least could assert (though unsuccessfully) a contract claim based on their tickets. Courts have

held (as in Mancina and Mayer) that the only contractual obligation imparted by the ticket is

admission to the stadium to view a football game. 605 F.3d at 236. Similarly, as to Saints games,

a Saints ticketholder has a (revocable) license only allowing entrance to the stadium and a place

from which to watch the specific game. Ticketless fans, or in the parlance of Mancina and the

Petition here, “the Who Dat Nation,” have even less of a cognizable interest, having no ticket and

therefore not even the contractual entitlement for entry to the game. The interests identified in the

Petition (faith in the NFL, trust in the “National pastime”), have never been identified by any court

as cognizable and protectable interests at law.

Accordingly, regardless whether the cause of action is in negligence (Petition ¶ 9) or

alleged failure to enforce the NFL Rules (Petition ¶ 10), or whether the chosen remedy is damages

or mandamus, these Plaintiffs in this Petition do not have a right of action.

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 16 of 22

IV. Plaintiffs Have No Right to a Writ of Mandamus.

In addition to damages, Plaintiffs seek the issuance of a writ of mandamus. In the Rule to

Show Cause accompanying their Petition, they make clear that they seek a writ of mandamus

compelling the Commissioner “to implement Rule 17, section 2, Article 1 and 3, wherein the

commissioners [sic] power under this section 2 include … the reversal of a game’s result or the or

the rescheduling of a game either from the beginning or from the point of which the extraordinary

act occurred.”16 However, mandamus is not available to them. There are only two circumstances

stated in the Louisiana Code of Civil Procedure where a corporation or a limited liability company

can be compelled to act:17

A writ of mandamus may be directed to a corporation or an officer thereof to
compel either of the following:
(1) The holding of an election or the performance of other duties required by the
corporation’s articles of incorporation or bylaws, or as prescribed by law.
(2) The recognition of the rights of the corporation’s members or shareholders.
B. A writ of mandamus may be directed to a limited liability company or a member
or manager thereof to compel either of the following:
(1) The holding of an election or the performance of other duties required by the
limited liability company’s articles of organization or operating agreement, or
as prescribed by law.
(2) The recognition of the rights of the limited liability company’s members.

La. C.C.P. Art. 3864 (emphasis added).

16
R. Doc. 1-1, at 9.
17
The NFL is not a corporation or limited liability company. It is an unincorporated association
comprised of the 32 separately owned and independently operated NFL member clubs, and Article
3864 does not even apply to it. The undersigned have located no Louisiana court decisions
allowing a writ of mandamus against a private non-corporation or non-LLC to compel actions
regarding the internal rules of that private unincorporated association. See Dunlap v. Ramsey &
Dunlap, 184 So. 710, 711 (La. 1938) (finding no authority for maintaining an action for dissolution
of a partnership as a summary mandamus proceeding); accord Fraser v. Patrolmen’s Benev. Ass’n
of City of New York, 578 N.Y.S.2d 574, 574 (N.Y. App. Div. 1992) (“… it being well established
that mandamus does not lie against a private association”). Plaintiffs’ Petition contains zero
allegations as to the duties or obligations of the only LLC named as a defendant, NFL Properties.

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 17 of 22

The mandamus remedy under Louisiana law is available only to members of a corporation

or limited liability company, to compel the inner workings of the entity among its members. But

here, Plaintiffs are not parties with standing to direct the inner workings of the NFL. Plaintiffs are

ticketholders and fans. Their sole connection to the NFL is by way of having purchased a ticket to

witness a game between two member clubs of the NFL, granting them a license to watch the game.

See, e.g., Mayer, supra. Plaintiffs are not shareholders or members of the entity that they seek to

compel, and lack standing to compel the association to do anything.

The limitations on the writ of mandamus in regular commercial disputes has been made

clear. For example, the writ does not lie to compel corporations, or their board of managers, to

perform obligations arising simply from contracts. State ex rel. Arbour v. Bd. of Mgrs. Of

Presbyterian Hosp. of New Orleans, 59 So. 108, 109 (La. 1912). Mandamus may be used to compel

a corporation to transfer stock, to compel it to hold regular meetings required by its charter, and to

compel it to permit shareholders to examine corporate books, but mandamus cannot be used to

compel performance of contractual obligations. Hebert v. Abbey Healthcare Group, Inc., 1994-

1280 (La. App. 3 Cir., 5/17/1995), 657 So. 2d 278, 280. Plaintiffs’ purported “standing” stems

solely from their status as ticketholders, and some contractual right they perceive to be satisfied

with the outcome of the game, but they are not included within any right to use mandamus to

compel the NFL to satisfy an obligation that arises simply from their tickets to watch the game.

Furthermore, “[m]andamus will not lie in matters in which discretion and evaluation of

evidence must be exercised; the remedy is not available to command the performance of an act

that contains any element of discretion, however slight.” State through Morrell v. City of New

Orleans through Landrieu, 2017-110 (La. App. 4 Cir. 12/21/2017), 234 So. 3d 1071, 1079 (internal

quotation marks and citations omitted); see also Hoag v. State, 2004-857 (La. 12/1/2004), 889 So.

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 18 of 22

2d 1019, 1024. Mandamus can be used only to compel performance of duties that are ministerial—

those duties that require no exercise of judgment or discretion in their performance. Mandamus is

to be used only when there is a clear and specific legal right to be enforced or a duty which ought

to be performed. It never issues in doubtful cases. Thornton ex rel. Laneco Const. Sys. Inc. v.

Lanehart, 97-1995 (La. App. 1 Cir. 12/28/98), 723 So. 2d 1118, 1123 (internal citations omitted).

This is certainly true here where mandamus is not even provided for against private unincorporated

associations. La. C.C.P. art. Article 3864; Fraser, 578 N.Y.S.2d at 574.

Plaintiffs challenge what is at its heart a discretionary call on the playing field by a referee,

and cannot seek to overturn that by compelling the NFL to reverse the game’s result, overrule the

referee, or hold another game. The rules agreed to by all 32 of the NFL’s member clubs confirm

that the decision whether to call a penalty is a discretionary matter left to the Referee on the field.

NFL Rule 15, § 1, states:

…ARTICLE 3. REFEREE’S AUTHORITY. The Referee is to have general
oversight and control of the game. The Referee is the final authority for the score.
If there is a disagreement between members of the crew regarding the number of
down, any decision, or the application, enforcement, or interpretation of a rule,
the Referee’s decision will be final. The Referee’s decisions upon all matters not
specifically placed under the jurisdiction of other officials by rule are final.

… ARTICLE 5. GAME ADMINISTRATION SUPPORT FROM NFL
OFFICIATING STAFF. The Replay Official and designated members of the
Officiating department at the League office may consult with the on-field officials
to provide information on the correct application of playing rules, including
appropriate assessment of penalty yardage, proper down, and status of the game
clock. In addition, if the designated members of the Officiating department
determine that a foul for a non-football act called on the field is flagrant, then they
can instruct the on-field officiating crew to disqualify the player(s) who committed
the foul. … The Officiating department does not have the authority to instruct the
on-field game officials to assess a penalty against a player.18

18
NFL Rules, at 62 (emphases added).

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 19 of 22

The NFL Rules thus specifically preclude directing the officials on the field to call a penalty; they

similarly bar anyone from second-guessing the final on-the-field decision of the Referee. This

housing of discretion with the Referee as to whether to call a penalty is similarly recognized in

NFL Rule 17, the rule relied on by Plaintiffs. But plaintiffs ignore the language in Article 2 of

Section 2 of Rule 17, which makes clear that the rule has no application here:

ARTICLE 2. NO CLUB PROTESTS. The authority and measures provided for in
this entire Section 2 do not constitute a protest machinery for NFL clubs to avail
themselves of in the event a dispute arises over the result of a game. The
investigation called for in this Section 2 will be conducted solely on the
Commissioner’s initiative to review an act or occurrence that the Commissioner
deems so extraordinary or unfair that the result of the game in question would be
inequitable to one of the participating teams. The Commissioner will not apply
authority in cases of complaints by clubs concerning judgmental errors or
routine errors of omission by game officials. Games involving such complaints
will continue to stand as completed.19

Plaintiffs would have this Court hold that a ticketholder or a fan (or some undefined “other”

interested person) has the right to demand that courts order the after-the-fact correction of

judgmental errors or errors by game officials even where the teams and players involved expressly

do not have such rights. This flies in the face of Mancina, Mayer, and all the cases leading up to

those decisions.

Even if the Commissioner were permitted to deem a particular missed call a “calamity”

under NFL Rule 17, § 2, Article 1, that reliance on Rule 17 unequivocally would be a discretionary

act, and therefore not subject to mandamus. Under NFL Rule 17,

The Commissioner has the sole authority to investigate and take appropriate
disciplinary and/or corrective measures if any club action, non-participant
interference, or calamity occurs in an NFL game which the Commissioner deems

19
NFL Rule 17, § 2, Art. 2 (NFL Rules, at 67) (emphasis added).

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 20 of 22

so extraordinarily unfair or outside the accepted tactics encountered in professional
football that such action has a major effect on the result of the game.20

The Commissioner is the one to deem whether corrective action is appropriate: The discretion lies

entirely with him, not the fans or with this Court.

Mandamus is an extraordinary remedy that is to be used sparingly. Gunasekara v. City of

New Orleans through Munster, 2017-914 (La. App. 4 Cir. 3/28/2018), 243 So. 3d 623, 626; Constr.

Diva, L.L.C. v. New Orleans Aviation Bd., 2016-566 (La. App. 4 Cir. 12/14/2016), 206 So. 3d

1029, 1037. This is a clear case where Plaintiffs’ Petition for a writ of mandamus must be denied,

because they have no standing to compel the NFL, and because they are asking to compel much

more than a ministerial duty.

V. Conclusion

The unambiguous allegations of the Plaintiffs’ Petition provide the beginning and the end

of this Court’s foray into officiating a football game. First, it is clear that this Court has jurisdiction

under CAFA, that the Plaintiffs have brought a class action putting a sum or value greater than $5

million in controversy, between parties of minimally diverse citizenship. That is the beginning for

this Court. The end, however, is in what these Plaintiffs ask the courts to do. The Plaintiffs—fans

and ticketholders for an athletic event—do not have standing to seek remedies from dissatisfaction

with the outcome of that game, because the legal rights they seek to enforce are not legally

cognizable. Moreover, the mandamus relief they seek is entirely inapplicable, as there is no

ministerial duty owed by any of the NFL Defendants to the Plaintiffs for this Court to compel. And

granting plaintiffs’ petition would both ignore long-settled legal principles and place the courts in

the midst of an endless number of disputes that would quickly swallow up the judiciary’s resources

20
NFL Rule 17, § 2, Art. 1 (NFL Rules, at 66) (emphasis added); see also NFL Rules Preface
(“Any intra-League dispute or call for interpretation in connection with these rules will be decided
by the Commissioner of the League, whose ruling will be final.”).

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 21 of 22

and time. Accordingly, in the exercise of this Court’s jurisdiction, the NFL Defendants request

that this Court dismiss Plaintiffs’ suit, with prejudice, and at Plaintiffs’ costs.

Respectfully submitted,

/s/ H.S. Bartlett III
Gladstone N. Jones, III (La. Bar No. 22221)
H.S. Bartlett III (La. Bar No. 26795)
Lynn E. Swanson (La. Bar No. 22650)
Peter N. Freiberg (La. Bar No. 22912)
Jones, Swanson, Huddell & Garrison, L.L.C.
601 Poydras Street, Suite 2655
New Orleans, La. 70130
(504) 523-2500
Attorneys for the NFL Defendants

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above pleading was served on counsel of record by

filing in this Court’s CM/ECF System, as to all counsel connected to this case in that system, and

otherwise by email or facsimile transmission, on this date, the 27th day of January, 2019, as

follows:

Frank J. D’Amico, Jr.
Frank J. D’Amico, Jr., APLC
4608 Rye Street
Metairie, La. 70006

James R. Dugan, II
David S. Scalia
The Dugan Law Firm, APLC
One Canal Place, Suite 1000
365 Canal Street
New Orleans, LA 70130

James M. Williams
Chehardy Sherman & Williams
One Galleria Boulevard, Suite 1100
Metairie, LA 70001

Roderick Alvendia

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Case 2:19-cv-00566-SM-MBN Document 6 Filed 01/27/19 Page 22 of 22

J. Bart Kelly, III
Jeanne K. Demarest
Law Office of Alvendia, Kelly & Demarest, LLC
909 Poydras Street, Suite 1625
New Orleans, LA 70112

Anthony D. Irpino
Irpino Avin & Hawkins
2216 Magazine Street
New Orleans, LA 70130

H.S. Bartlett III
H.S. Bartlett III

–22–