The NFL and Super Bowl Ticket Prices (Finkelman v. NFL)

A few weeks ago, Josh Finkelman sat in the upper decks of MetLife Stadium watching the Seattle Seahawks defeat the Denver Broncos in Super Bowl XLVIII. The price for those nosebleed seats? $4,000 for two tickets.[1] Mr. Finkelman is now the lead plaintiff in a class action lawsuit filed last month against the National Football League (NFL) alleging unfair ticket distribution policies that drive up the price of Super Bowl tickets in violation of New Jersey’s consumer protection laws. The complaint in Finkelman v. NFL argues that the NFL’s method of distributing tickets forces most fans to buy through the secondary market of ticket resellers who charge well above face value.[2] The proposed class for the suit would consist of “all persons who purchased tickets, who will purchase tickets, or who cannot afford to purchase tickets to Super Bowl XLVIII at a ticket price that is higher than the face value of the ticket from a period beginning with the first day tickets went on sale through the present.”[3] 

Under the New Jersey Consumer Fraud Act, “[i]t shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets’ release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5% of all available seating for the event.”[4] The complaint alleges, however, that the NFL only allocates 1% of tickets to the general public through a lottery system held the year prior to the game.[5] 75% of tickets are instead allocated to the 32 teams with the remaining 25% distributed by the NFL to “companies, broadcast networks, media sponsors, the host committee, and other league insiders.”[6] This system, Mr. Finkelman argues, results in tickets made available only at grossly inflated prices through the secondary marketplace in violation of New Jersey law.[7] The NFL has not yet filed a response to the complaint, but league spokesman Brian McCarthy stated to the New York Times that “[w]e strongly disagree with the plaintiff’s interpretation of the NJ Consumer Fraud Act and his claims” and noted that such a distribution system “has been in existence for years and is well documented.”[8]

Although the NFL has used this method for many years, this year is unique in that New Jersey, home to MetLife Stadium where this year’s Super Bowl was held, has much stronger consumer protection laws than any other state where the game has been held previously.[9] The case ultimately may turn on how the court interprets the “general public” language of the New Jersey law. The tickets that are distributed to teams do go to fans ultimately, and thus may not be interpreted as being withheld from the public as the law requires.[10] Should Mr. Finkelman be victorious, however, the Consumer Fraud Act provides that “the court shall…award threefold the damages sustained by any person in interest”[11] and the proposed class could include tens of thousands of members, according to Mr. Finkelman’s lawyer.[12]

Ultimately, it is unclear how the court will rule as this is the first such suit challenging ticket prices brought against the NFL.[13] The first hurdle Mr. Finkelman may have to face is getting his proposed class certified at all, which may depend on whether the court determines that the broad class of consumers cited by Mr. Finkelman all have similar enough grievances to warrant class status.[14] Even if the suit is to go forward, it is quite possible that the judge will read the New Jersey consumer law broadly in favor of the NFL. After all, New Jersey offered $8 million in tax incentives to attract the NFL in the first place[15], and should there be an unfavorable ruling, it’s a safe bet that the biggest game of the year is never coming back.