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EDITORS NOTE: The Texas Lawbook is providing extensive coverage of the trial. For previous articles about the case, please scroll down.
By Natalie Posgate
(March 12) – A federal jury ruled Thursday morning that the National Football League breached its contract with seven ticketholders who were negatively impacted by the infamous seating fiasco of Super Bowl XLV in Cowboys Stadium in 2011.
But the NFL prevailed in the most disputed legal issue of the trial: whether the league fraudulently induced two of the plaintiffs, Dean Hoffman and Robert Fortune, to purchase seats to the game with obstructed views of the field. The jury ruled that the league did not.
After about five hours of deliberation spanned over two days, jurors awarded a total of $75,850 in damages to the plaintiffs – about $21,000 short of what they sought from the jury.
Thursday’s mixed verdict is actually one of a series of touchdowns for the NFL’s lawyers, who all practice at Haynes and Boone, when one looks at the history of the lawsuit.
The original class action complaint, filed days after the Super Bowl, demanded tens of millions of dollars, but U.S. District Judge Barbara Lynn denied to certify the lawsuit as a class action in 2013. As a result, only seven ticket holders proceeded with their case to trial seeking almost $97,000. By contrast, the NFL generates about $9.5 billion per year in revenues and likely spent $97,000 in one week of billable hours during the trial, if not more. Avenatti has another similar case with more plaintiffs (around 200) pending in Judge Lynn’s court.
Plaintiffs also brought other torts in the class action, including fraudulent concealment, negative misrepresentation, violation of the Texas Deceptive Trade Practices Act, as well as other fraudulent inducement claims. Judge Lynn dismissed those claims in 2012 and at the same time, dismissed the Dallas Cowboys as a defendant in the lawsuit.
Then, during Tuesday’s jury charge conference, Judge Lynn ruled in favor of the portion of Behrens’ motion for directed verdict that requested to throw out the possibility for the plaintiffs to recover punitive damages.
Despite the nearly 22 percent shortfall in actual damages the jury awarded, plaintiffs’ lawyer Michael Avenatti called Thursday’s verdict a ”blowout” victory and said he was very satisfied with the amount the jury awarded.
“We prevailed on 14 of 18 questions; that is nothing short of a blowout,” said Avenatti, who led the trial for the plaintiffs. “My clients waited four long years to be vindicated in this case, and today, they were vindicated. Any effort by the NFL spin machine to now claim victory in this case is nothing short of putting lipstick on a pig.”
Behrens said the NFL is pleased with the outcome of the verdict and appreciates the time and attention the jury paid to the case.
“The NFL has always accepted full responsibility for the problems that some of its fans experienced with their seats at Super Bowl XLV, and has genuinely attempted to compensate them for any actual loss or inconvenience they have had,” he said.
Fourth quarter to come
Metaphorically speaking, the fourth quarter still awaits the legal battle. In the middle of closing arguments Wednesday, an ESPN article surfaced online that raised questions of whether a witness from the case, Scott Suprina, committed perjury during his testimony in order to not throw the NFL under the bus.
Judge Lynn has ordered Suprina to appear for another deposition to testify about the statements he made in the article no later than Wednesday of next week. Judge Lynn told lawyers that she would not rule on the jury verdict until Suprina’s upcoming deposition is presented.
Lawyers will also exchange any records of communication they or their clients may have had with Suprina 90 days before his March 2013 video deposition and 90 days before the trial.
Suprina is the owner of Seating Solutions, the contractor that Cowboys Stadium hired to install the 13,000 temporary seats needed to accommodate all of the seated fans at Super Bowl XLV. Jurors heard Suprina’s deposition late last week, in which he testified that the bad weather during Super Bowl week was the reason for his company’s failure to get the job done in time. Various testimony throughout the trial has suggested that Seating Solutions was the catalyst for the seating debacle on game day.
He also testified that he was under the impression the NFL held no responsibility to complete the seats in time.
“I had a contract with the Cowboys to put the seats in; I had no obligation to the NFL,” Suprina said. “I’d say the NFL had no responsibility for the seats, from my perspective. My orders were from [Cowboys Stadium general manager] Jack Hill.”
Behrens said in court yesterday that neither he nor anyone else at Haynes and Boone has spoken to Suprina in “years.”
But if the new evidence reveals that someone from the NFL tampered with Suprina as a witness, the plaintiffs believe they are entitled to “reset the scoreboard,” so to speak, with a brand new trial.
“If what is contained within that article is true, namely if, and this is a big if… that is a very, very serious charge, and it will have wide-ranging implications in connection with this case,” Avenatti said outside of the courthouse after the verdict.
If Suprina’s new testimony confirms what he said in the article, Avenatti said that evidence is certainly something he would want to present in a new trial.
Chad Ruback, a Dallas-based appellate lawyer who has closely followed the case, said the outcome of the judgment will entirely depend on Suprina’s testimony.
“This case is definitely not over yet,” he said. “Yes, the jury has come back, but it’s only act two. The first act was Judge Lynn’s ruling on class certification; act three will be what Judge Lynn does with the judgment, and that judgment is going to trump everything else that has happened so far. That will really determine who will win at this point.
“It could be devastating for the NFL or the plaintiffs,” Ruback continued. “Next week will be a critical juncture in this case, if at least not more so than the jury verdict.”
Ruback said he doesn’t believe Judge Lynn will award big attorneys’ fees. The only possibility for that is if a mistrial occurs and the plaintiffs are able to persuade a new jury that the NFL is liable for fraud.
“I don’t think she’s going to award a seven figure award, or even a six figure award,” Ruback said. “However, if she grants a mistrial and plaintiffs get a brand new trial… if the NFL is liable for say, hypothetically, a $1 million judgment, that could justify Judge Lynn’s award in [larger] attorney’s fees.”
UPDATE: Potentially ‘Case Altering’ Article Surfaces after Super Bowl Trial Closings
By Natalie Posgate
(March 12) – After four hours of deliberation Wednesday afternoon, jurors continue deliberating Thursday morning to try to reach a verdict in the Super Bowl seating trial.
But the jury nearing a verdict in the two-week federal trial is not even the biggest development in the case.
About an hour and a half after the jury began its deliberations, plaintiffs’ lawyer Michael Avenatti requested for U.S. District Judge Barbara Lynn to cease deliberations for the day to resolve allegations about the National Football League that surfaced in an ESPN article published Wednesday morning that Avenatti claims could potentially be “case altering” if true.
The article, which ran online during the middle of closing arguments, was an exposé of Scott Suprina, a witness from the case, going public about purposely deflecting the blame of the seating issues from the NFL during his video deposition, which was shown to jurors last Friday. If the article is true, Judge Lynn said to lawyers that at “most aggressive suspicion,” it could mean that Suprina committed perjury.
Judge Lynn ruled for deliberation to continue, but said she would not enter a judgment on the verdict until the issue gets resolved. Plaintiffs filed an emergency motion to subpoena Suprina after the hearing, stating in the four-page document that if the report is true, the NFL conducted witness tampering with Suprina, and plaintiffs “at a minimum” would be entitled to reopen their case to present such evidence to the jury and/or a mistrial.
During the hearing, NFL lawyer Thad Behrens said he has had no contact with Suprina in “years.” The only recent Suprina-related communication he has had was with Suprina’s lawyer, Terry Klein of Boston.
Judge Lynn ruled the NFL has until close of business Friday to respond to the emergency motion, as well as to provide Suprina’s full deposition and a copy of any subpoena issued for such testimony.
Suprina is the owner of Seating Solutions, the company that handled the temporary seating installation for Super Bowl XLV in Cowboys Stadium. Certain testimony throughout the trial has blamed Seating Solutions’ failure to get the job done on time as the reason the seating fiasco happened on game day.
The ESPN article also says the league led Suprina to believe that it would renew an NFL lease one of Suprina’s sister companies held if he did not throw the NFL under the bus during his testimony. The company, DreamSeat LLC, previously had a license to put NFL logos on its furniture, but the NFL revoked that license three days after the seating debacle at the 2011 Super Bowl.
“They encouraged me to not tell the full story,” Suprina said in the article, written by sports business reporter Darren Rovell. “They reinforced what my position should be before the deposition.”
Closing arguments
During closing arguments Wednesday morning, Avenatti told the federal jury that the NFL saw at least 21 red flags about seating issues in the days and months leading up to the 2011 Super Bowl at Cowboys Stadium, but decided to act “reckless” by not bothering to warn fans they might be wasting their money coming to the game.
“Recklessness permeated the process that began six months before the game,” said Avenatti, the lead attorney for the seven plaintiffs who sued the NFL over the Super Bowl XLV ticket fiasco.
“They knew what was about to happen,” Avenatti told jurors. “We know that from their own internal communication in the weeks and days leading up to the game.”
But Behrens disputed classifying his client’s behavior as recklessness.
“Sometimes in life, no matter how important the goal is and how much work you achieve, no matter the high pressure and how many people are watching, you might fall short of your goal,” Behrens said. “That could happen even to a business that’s been as successful as the NFL.”
The heart of the trial boils down to whether the NFL breached its contract when it sold Super Bowl XLV tickets to seven NFL fans whose seats were either nonexistent, delayed in being ready, different from what they paid for or had obstructed views in the Cowboys Stadium.
The legal issues in the case are simple, both sides argued.
The two parties told jurors that they agree that the NFL breached its contract to five of the plaintiffs. Where they disagree is whether the NFL intentionally defrauded two plaintiffs, Robert Fortune and Dean Hoffman, who claim they had obstructed view seats because “restricted” was not marked on their tickets.
Behrens argued the NFL knew nothing about obstructed view issues before Jan. 23, 2011, the day all Super Bowl XLV tickets entered the stream of commerce.
“You haven’t seen one e-mail prior to that date, one drawing, one anything that cites Mr. Fortune or Mr. Hoffman’s seats as problematic,” Behrens said to jurors. ”You’re trying to get into the NFL’s mind, [and determine] what did they know?”
But if there was one thing the NFL knew, Avenatti argued, it was that hosting Super Bowl XLV in Cowboys Stadium – regardless of whether all fans would get seats or not – would be all about one thing: money.
“This was all about money from the very early stages,” Avenatti said. “The bidding document [says Cowboys Stadium] will provide the NFL with $85 million in ticket sales, the most in NFL history.”
Avenatti showed jurors 21 separate instances, dating back as early as June 2010, in which the NFL saw signs that there would be seating issues at Cowboys Stadium on the Feb. 6, 2011 game day, yet they did nothing to warn fans.
The most important, Avenatti noted, was “Red Flag No. 20,” an e-mail exchange between NFL ticketing official Fred Otto and Jennifer Gray, another NFL employee, the night before game day:
Otto: I’m surrounded by people, [Brian] McCarthy trying to spin a press release… looks like at least 800-plus people we have to deny seats to, and it could grow!
Gray: Ok I will be up if you need to vent, hang in there.
Otto: OMG now a midnight conference call!
Gray: OMG this is insane
Otto: This is going to turn into a riot – I am serious!!
Gray: Please tell me you slept?
Otto: About an hour. Probably turning away at least 2,000 people.
Gray: Ugh! How are they handling? Are they sending them to bb (Rangers) stadium? People are going to riot.
Otto: They still don’t know! Too many chiefs.
Gray: Decision time!
Otto: This never should have happened in the first place. Thanks Frank [Supovitz] and Bill [McConnell]!
“If you review one document before rendering this decision, I kindly request you to look at this one,” Avenatti said to jurors.
For the fraud claims, Behrens told jurors the first step will be to determine whether Fortune and Hoffman’s seats were actually obstructed. He reminded them that neither Hoffman nor Fortune complained to an usher once during the game about not being able to see the field, despite paying thousands of dollars to attend the Super Bowl.
He also reminded jurors that Fortune’s wife took the photo of their obstructed view seats, but testified that he personally did not know that his wife took the photos until after the game or what angle she took them from.
He also told jurors about the great lengths the NFL took to ensure that no seats would have obstructed views in the stadium on game day, including the in-depth work that Todd Barnes, the Populous architect the NFL hired, devoted 15 months before the game. His work included visiting the stadium five or six times before he even reviewed any seating plans, Behrens said.
“Even if you ultimately believe they had an obstructed view, it is clear on the record that was not intentional,” Behrens said. “No one should have had an obstructed view seat.”
During rebuttal, Avenatti expressed how offended he was by Behrens essentially calling his clients liars. The only liar here is the NFL, he said.
“Let’s call it like we see it: the NFL speaks out of both sides of their mouth on this case,” Avenatti said. “On one hand, they want you to believe they’re taking the responsibility. You know why? Because it’s judgment day.
“They then proceed to call my clients liars and cheaters,” he continued. “You should throw them out of court for having the audacity to call this fan (Fortune) a liar. They have no idea. They’ve had four years to figure it out.
“And the same thing for Mr. Hoffman, a 69-year-old man who has never filed a lawsuit in his life. And they want you to believe that he’s just making it up. It’s disgusting. It’s disgraceful.
“When you file a lawsuit in the United States of America and you turn your cause of action over to seven or eight people to pass judgment, before someone stands and accuses you of being a liar, they ought to have a basis for it.”
The Texas Lawbook will be in the courtroom Thursday awaiting the verdict and will send an update as soon as it happens. If a verdict isn’t returned tomorrow, the jury will reconvene on Monday.
Jerry Jones Regrets Super Bowl Ticket Fiasco; Closing Arguments Today
By Natalie Posgate
(March 11) – Dallas Cowboys owner Jerry Jones repeatedly told a federal jury Tuesday that he was sorry that his team and the National Football League did not complete the construction of additional seating at Cowboys Stadium for the 2011 Super Bowl – a failure that caused about 1,200 paying fans to not receive the seats they paid for on game day.
“There were seats that weren’t completed,” Jones testified before a packed courtroom. “I regret that it was partially done.”
The Cowboys owner was the trial’s final witness, as both sides rested their cases. Closing arguments are scheduled for Wednesday morning. The seven-woman and one-man jury could begin deliberating as early as Wednesday afternoon.
Seven ticketholders who were affected by the infamous Super Bowl XLV seating fiasco have sued the NFL, seeking several thousands of dollars each to cover the cost of their tickets and travel expenses to Dallas to watch the game.
Jones spent about two-and-a-half hours on the witness stand battling with plaintiffs’ lawyer Michael Avenatti, who sought to portray the Dallas billionaire as obsessed with beating previous Super Bowl attendance records and using his position as the NFL’s most powerful team owner to pressure the league to sell more seats than the stadium could accommodate.
Avenatti pointed Jones and the jury to a statement the Cowboys owner made the month before the Super Bowl about ticket sales. “It was like a shark hitting red meat,” Jones reportedly stated. “We’re thinking of selling more tickets. I know this: however many we print, people will buy.”
Jones told jurors Tuesday that he didn’t remember making the statement but also said he couldn’t dispute it.
Avenatti presented Jones with a Nov. 4, 2010 internal NFL email from Senior Vice President of Events Frank Supovitz to his boss, NFL Executive VP Eric Grubman, that noted that Super Bowl XIV in Pasadena set the attendance record with 103,985 attendees.
“The latest information I have is that he (Jones) is trying to pack more people into the clubs who do not have seats,” Supovitz wrote. “I am not trying to be a pain in the neck, but to get to 100,000 people, he needs 12,000 more SROs (standing room only tickets), and 16,000 SROs to beat the record. I will try to accommodate whatever I can in terms of SROs, but there is no way we can get that many more people into Cowboys Stadium. I may be able to get 1,000 on the stairwells.”
Avenatti repeatedly asked Jones if he told top NFL officials, including Supovitz, Grubman and NFL Commissioner Roger Goodell, in November 2010 that he wanted to beat the Super Bowl attendance record.
Jones testified each time that he didn’t recall.
Jones emphasized that the completion of Cowboys Stadium in 2009 itself broke the record, because it accommodates up to 111,000 people.
Later, Avenatti pressured Jones to admit that the Cowboys Stadium broke its contract with the NFL to have temporary seating completed by a week before game day.
The lawyer displayed the Super Bowl licensing agreement between Cowboys Stadium, the NFL and NFL Properties, a segment of which stated, “such seating must be installed by January 30, 2011 with all work fully complete, approved and ready for occupancy by such date.”
The Cowboys Stadium was involved in the agreement because it was the entity that hired the seating contractor, Seating Solutions, to install the temporary seats needed to accommodate the 93,000-plus fans who purchased seats for the game.
Seating Solutions worked up until game day to try to install the 13,000 temporary seats, but did not complete the task.
“Cowboys Stadium did not meet the terms of the contract, did it?” Avenatti asked.
Jones agreed that the seats “weren’t completed; it was partially done.”
“I regret that it was partially done,” he said.
During cross-examination, NFL’s lead lawyer, Thad Behrens, pulled up the mission statement of the North Texas Super Bowl XLV host committee, which was “to host the greatest Super Bowl ever, bringing acclaim to the National Football League and North Texas.”
Behrens asked Jones if that was his mission as well for Super Bowl XLV. He said yes.
“Did you want any fan to come and not be able to get a seat?” Behrens asked.
“No,” Jones said.
“Did you want fans to come and have a good time?”
“Yes.”
The dialogue between Jones and Avenatti provided considerable entertainment for jurors and even elicited laughter from both sides in the case as well as U.S. District Judge Barbara Lynn.
Briefly after an episode of combative, talking-over-each-other Q&A between Avenatti and Jones (who at one point expressed his frustration with Avenatti by telling him, “C’mon, let’s go!”), they shared a light moment when Jones asked Judge Lynn if she could instruct Avenatti to help him find the paragraph in a document Avenatti was questioning him about.
“I’d be happy to do that,” Avenatti said as he approached the witness stand.
“Thanks, you’re a sweetheart,” Jones said, grinning. “I’ll remind you under oath.”
Judge Lynn chimed in, telling Jones well, in that case, “I’m going to remind you of the rules of perjury.”
Judge Lynn told the jury that each side will have 75 minutes for opening statements Wednesday morning. If jurors deliberate through Thursday without a verdict, they will meet again Monday because one juror must attend a funeral on Friday.
Jerry Jones to Testify in Super Bowl Seating Trial
By Natalie Posgate
(March 10) – Dallas Cowboys owner Jerry Jones will take the witness stand Tuesday morning at 11 a.m. to answer questions about the infamous seating fiasco at Cowboys Stadium during Super Bowl XLV in 2011.
Michael Avenatti, the lawyer for seven disgruntled ticket holders who were affected by the seating problems, will be limited on what he can ask Jones, U.S. District Judge Barbara Lynn ruled last week.
Jones’ highly anticipated appearance will take place on likely the last full day of testimony in the trial, which began last Monday. Lawyers for the ticketholders and National Football League are expected to deliver closing arguments Wednesday to jurors to provide their last two cents on whether the NFL breached its contract and committed fraud when it sold Super Bowl tickets that led fans to either no seats, different seats than fans paid for or seats with alleged obstructed views.
The seven women, one man jury spent the bulk of its Monday hearing from Todd Barnes, the chief architect the NFL hired to approve the seating chart for the 13,000 temporary seats Cowboys Stadium installed to accommodate the almost record-breaking Super Bowl crowd on game day.
The NFL has retained Barnes and his firm, Populous, for more than 20 Super Bowl games. For Super Bowl XLV, Barnes said his primary role was to review the seating plan provided by the seating contractor, Seating Solutions, and to ensure that the seats in the plan met the guidelines required for adequate visibility of the field.
Barnes provided key testimony for the NFL, which began presenting its case to jurors late last week. He said preparation for the seating began in November 2009, when he first visited the stadium. He said his visits picked up again throughout the spring and summer months of 2010.
He said the first seating draft, put together by Seating Solutions (the seating contractor responsible for actually installing the seats) indicated no problems, but by September 2010, Barnes said he noticed potential obstructed view issues with seats in the “Silver Level” of the stadium. He said he suggested to one of his primary NFL contacts, Fred Otto, to mark “restricted” view on the tickets for the seats in the Silver Level.
After knocking out some problematic seats, Barnes testified that there were no visibility issues with the remaining seats in the curved sections on the four corners of the stadium, which is where the two plaintiffs (Robert Fortune and Dean Hoffman) claiming obstructed views in the case were seated.
Barnes said he showed up to Cowboys Stadium for the first on-site review process on Jan. 7, 2011, the day the stadium hosted the Cotton Bowl. The NFL officially gained exclusive access to the stadium the next day to begin preparations for the Feb. 6, 2011 Super Bowl.
Barnes, who testified he was at the stadium nearly every day over the next month and often clocked upwards of 15-hour workdays said the review process for the stadium seating did not stop “until game day.” Up to 60 Populous employees accompanied him in the preparations, he said.
During his direct examination, NFL lead lawyer Thad Behrens asked Barnes a few times who paid Barnes to complete his work. Barnes said the NFL hired him.
The Cowboys hired Seating Solutions to install the seats, as the two have a history of working together. The Cowboys were originally named in the lawsuit, but Judge Lynn dismissed “America’s Team” as a defendant in July 2012.
During cross-examination, a few somewhat heated email exchanges revealed the apparent tension that the NFL and Populous underwent with Seating Solutions and its owner, Scott Suprina, throughout the seating installation process.
After the issues for the Silver Level seats surfaced, Barnes wrote an email to Otto on Sept. 27, 2010 that said: “There are no options unless you don’t sell the seats as far as I can tell. We should have Jack Hill here give an evaluation of how many seats are affected. I don’t recall the Cowboys or Seating Solutions being forthright about this, do you?”
“Scott said: ‘I would never install a seat I would not install myself.’ Not forthright at all,” Otto wrote back. “Ask Jack Hill and we need to know NOW. Already have done a lot of seat allocations and this would be a horrible back step!”
Jan. 8 and Jan. 9 emails heated up – the timeframe that potential issues arose with the seats in the curve sections.
“Not to file and please don’t share this with anyone else,” Barnes wrote to Otto in an email. “NEVER let the team have control of the seat plan. EVER. All of us have been afraid of offending the Cowboys but they should have been fully responsible for all elements associated with the seats.”
Otto replied: “I completely agree! Hey, this is the first time that the people in my department let me get involved in the disclosure. Pisses me off… I was never afraid of offending the Cowboys or anyone else.”
The cross-examining lawyer, Andrew Stolper, brought up the fact that Barnes testified during Behren’s questioning that there were only obstructive issues in the fifth and sixth rows in the curved sections, the two rows that the NFL pulled out of the seating chart. But then Stolper displayed an email in which Barnes said there were issues with rows four, five and six, stating “The worst ones are rows 4 and above.”
NFL Commissioner: Super Bowl Attendance Record ‘Not a Priority for Me’
By Natalie Posgate
(March 6) – On the second day of his testimony, National Football League Commissioner Roger Goodell told jurors that hosting the most-attended Super Bowl in history at the Cowboys Stadium in 2011 was “not a priority” for him.
“The attendance is gonna be what the attendance is gonna be,” he said during an August 2013 video deposition.
The code that the attorney examining him, Michael Avenatti, was trying to crack was whether the NFL’s and Dallas Cowboys owner Jerry Jones’ obsession with beating the 1980 Super Bowl attendance record became a higher priority than disclosing the seating fiasco to fans during a press conference Goodell gave two days before Super Bowl Sunday.
The big reason Goodell failed to update fans on the seating situation, Avenatti asserted, was the NFL’s determination to avoid a public relations disaster, which Goodell vehemently denied.
Photo courtesy of dallasnews.com
“That couldn’t be farther from the truth, counselor,” Goodell said when questioned.
Instead, Goodell said the NFL still was not sure at the time of his press conference how many fans would be affected by the seating issues – if any at all.
Avenatti suggested the priority in the high game day attendance was because it would help generate a significantly higher amount of revenues than the previous two Super Bowl games in Miami and Tampa.
Avenatti, who represents seven plaintiffs who were affected by the infamous seating fiasco in 2011, pulled up a document called the commissioner’s briefing, which has information about the upcoming Super Bowl games and how they are projected to compare to previous years.
The briefing showed that revenues were projected to jump $37 million higher than Super Bowl XLIII and XLIV. It also showed that the net income for Super Bowl XLV was projected to increase from $7.5 million for the 2010 Super Bowl to $28 million.
“According to this document, the vast majority of that $20 million increase was going to result from the almost $27 million increase at the gate from tickets sold to the game, isn’t that true?”
“Yes,” Goodell replied.
“A waste of our time”
Later in the afternoon, jurors heard from plaintiff Robert Fortune, a Pittsburgh Steelers fan from Ohio who traveled with his wife to Arlington’s Cowboys Stadium to watch his favorite NFL team play the Green Bay Packers at the 2011 Super Bowl.
But watching was something he was far from able to do once at the game, Fortune testified, because he and his wife could barely see the field from their seats.
Fortune was part of a group of fans who received seats with obstructive views of the field – despite their tickets lacking a “restricted” label on them and selling at full price. Fortune and his wife’s tickets cost $1,868.
A photo that Fortune’s wife took of the view of the field from their seats was displayed for jurors. It was easy to see the left endzone, but a rail blocked a significant part of the field.
“You could see the 10 or 20 yard line, depending on how you gyrated your body,” Fortune said.
Fortune said he spent a majority of the game dividing his time between standing by the lower level railing to watch the game and returning to his obstructed view seat to rest his knee – which had been replaced in surgery the month before.
“If you’d have known your seats were going to be obstructed, would you have gone [to Dallas]?” asked Andrew Stolper, one of the plaintiffs’ attorneys.
“It really was a waste of our time to be there,” Fortune answered. “We could have thrown a heck of a [Super Bowl] party at home with the money we paid.”
During cross-examination, NFL lawyer Thad Behrens asked Fortune if he ever complained to any of the nearby ushers about his seats to make the point that the NFL can often accommodate dissatisfied fans. Fortune replied that he did not.
He also asked Fortune whether it was true that Fortune did not see his wife’s photo of the field until they had left the game, and whether it was true that Fortune did not know at what angle his wife took the photo from. Both were true, Fortune said.
Behrens then asked Fortune if he had seen any of the post-game interviews or news coverage that revealed the NFL offered to compensate fans who were affected by the seating fiasco.
He said he did not recall.
The attorneys spoke to U.S. District Judge Barbara Lynn toward the end of the day about the possibility of Jerry Jones testifying. Jones is scheduled to testify next week on Tuesday.
NFL Events VP: Seating Fiasco a ‘Debacle’
By Natalie Posgate
(March 4) – Hours before the gates opened for the 2011 Super Bowl at Cowboys Stadium, a former top National Football League executive called the stadium’s seating situation a “debacle,” testimony and evidence revealed to jurors in the Super Bowl XLV ticket dispute trial.
Yet the months, weeks and days leading up to the Feb. 6, 2011 game, Frank Supovitz portrayed to jurors that he was both concerned about completing the seating in time and confident that the issues would get resolved on game day.
“We received many assurances from the seat contractor that [the seats] would be completed by game day,” said Supovitz, the NFL’s former senior vice president of events.
But five days before Super Bowl Sunday, the NFL was so concerned about fans’ reactions to the incomplete seats that officials decided to bring more Arlington police to the Cowboys Stadium grounds on game day.
A “debacle” indeed is how seven football fans viewed their Super Bowl XLV experience. The fans, most of whom live outside of Texas, are asking a federal jury to find that the NFL breached its contract and committed fraud when it sold the fans tickets for the game – tickets that led them to seats with obstructed views, different seats than they paid for or seats that did not exist once they entered the Cowboys Stadium in Arlington.
Super Bowl XLV hosted 103,219 patrons in Cowboys Stadium, just 766 fans shy of the most attended Super Bowl in history in 1980 in Pasadena, California.
But due to the failure of completing the installation and safety approval of the temporary seats needed by kickoff to accommodate the large crowd, more than 400 fans who purchased a seat did not get one. Another 2,800 who did get their seats were delayed access to their seats or relocated to alternative seats. Another group claimed their seats had obstructive views when they shouldn’t have.
During his direct examination, the plaintiffs’ lawyer, Michael Avenatti, asserted many questions at Supovitz that implied the NFL was more concerned about handling the publicity the seating fiasco would attract than informing the fans who would possibly be affected.
Avenatti pulled up a document that the NFL’s top public relations executive, Brian McCarthy, had created during the early morning hours of Super Bowl Sunday. The document included questions McCarthy anticipated the media to ask when the seating debacle news broke, such as:
• Who is to blame?
• You had three years to plan the month needed to install the seats. How did this happen?
• Was this because the NFL with Jerry Jones were trying to break the record?
• Does this kill North Texas’ chance to host future games?
Avenatti also probed Supovitz to admit that the fiasco would have been avoided had it not been for the pressure of fulfilling Jerry Jones’ dream to host the most attended Super Bowl in American history.
“You said Jerry Jones was interested in breaking the Super Bowl Record – did you think it was a good idea at the time?” Avenatti asked.
“If the owner [of the Dallas Cowboys] asks me to investigate something, I’m going to investigate it,” Supovitz replied.
But when NFL’s lawyer Thad Behrens questioned Supovitz about the same topic, Supovitz assured that the temporary seats (installed at many Super Bowls to accommodate the influx of people) played no role in the different scenarios Supovitz came up with to achieve Jones’ goal.
“It never involved the discussion of temporary seats to do it,” he said.
Supovitz also emphasized the measures the NFL took to make sure the visibility was adequate in all of the seats.
“I can’t say we sat in every single seat, but I can say we sat everywhere we thought there would be a problem,” he said.
Behrens also asked Supovitz exactly when on game day he was no longer confident the seats would be finished in time. He said he told his boss, Eric Grubman, at 11 a.m. he thought they would be able to accommodate everyone. But that changed suddenly right before noon after he received a call, informing Supovitz that 2,400 tickets on the stadium’s Pepsi Deck would not be able to be completed in time.
Despite that daunting obstacle, Supovitz said his staff was still able to complete 2,000 by the time the game began.
Though Supovitz reiterated to Avenatti that the NFL did not warn fans about the potential seat debacle because he was confident the seats would get finished in time, Avenatti asked him one more time during re-direct examination whether he had the ability to give fans a heads up.
“Theoretically, yes, that could have been done,” he answered.
NFL commissioner’s testimony begins
In video deposition testimony Wednesday, NFL Commissioner Roger Goodell told jurors that he didn’t mention the seating issue during his annual press conference two days before the 2011 Super Bowl, even though evidence presented earlier this week showed the league was already in an apparent panic by the time of the press conference.
U.S. District Judge Barbara Lynn sent the eight-person federal jury home early Wednesday in order to dodge inclement weather forecast for North Texas.
Photo courtesy of dallasnews.com
But before court adjourned, Goodell continually darted giving a direct answer to a repeated question from plaintiffs attorney Michael Avenatti: Why didn’t you mention the seating issue during the press conference?
Goodell’s repeatedly answered, “My opening statement is very short and very general. I’m there to answer the media’s questions, and I don’t believe anyone asked about it.”
Goodell, like the NFL’s trial team, was early to admit that the seating issues were ultimately the NFL’s fault.
“It was [made] very public that we accepted the responsibility, because we put the event on,” Goodell said.
Goodell’s testimony is expected to continue Thursday afternoon.
First plaintiff witness takes stand
Earlier on Wednesday, jurors heard from David Wanta, the first plaintiff to take the witness stand in the trial.
Wanta, a “born and raised” Green Bay Packers fan from Wisconsin, told the jury about the “Planes, Trains and Automobiles”-like trek that he and his good friend and fellow plaintiff, Ken Laffin, took to get to Dallas for the Feb. 6, 2011 Super Bowl.
He said they left Wisconsin on Thursday, Feb. 3, after driving to the nearest airport in Madison. A direct flight to Dallas was not feasible, so they flew to Denver and spent the night at a nearby hotel. When they returned to the Denver airport the next day, a direct flight to Dallas was still not possible due to cancelled flights the city’s ice storm had caused. So, they flew to Oklahoma City instead, and took a rental car to Dallas.
Wanta, who is a high school physical education teacher, testified that he took out a $5,000 loan from a credit union to fund his trip to the Super Bowl. He said he took out a loan because it was his dream to see the Packers play in a Super Bowl.
“It was definitely on my bucket list,” Wanta said. “During the 2011 playoffs, I told Kevin, ‘If they win, we’re going.’ ”
But Wanta and Laffin’s Super Bowl experience was far from a dream come true, Wanta said.
When he and Laffin arrived at Cowboys Stadium late morning on Super Bowl Sunday, approximately an hour and a half before the gates opened, their game tickets did not register when personnel scanned them. They were told to go to the Texas Rangers Stadium parking lot (which he mentioned was not a short walk) to sort out the ticket issue.
Once they returned to Cowboys Stadium, Wanta and Laffin were told to wait by the fenced area that outlined the stadium, where they stood for about an hour. After about 10 minutes, Wanta said the environment began feeling “unsafe” because many of the fans were angry.
Once they got into the stadium, Wanta said he and Laffin tried to go to their seats, but they were blocked off. 10 minutes later, personnel led them to the stadium’s Miller Lite Club to watch the game with the 400-plus other fans who did not get their seats.
“I didn’t get what I was promised,” Wanta said.
Wanta is requesting more than $7,000 from the NFL for the ticket and travel expenses and miscellaneous costs he endured to attend the Super Bowl.
During cross-examination, NFL lawyer Daniel Gold asked Wanta whether he had any receipts for his expenses. He said he did not because he didn’t think he would need them.
Gold also questioned Wanta about the $800 incidental expenses he is requesting in reimbursement from the NFL, which includes belt buckles and gifts for his family that he purchased while in Dallas.
Super Bowl Trial Opening Statements: NFL Failed its Most ‘Die Hard’ Fans
By Natalie Posgate
(March 3) – An eight-person jury heard a preview of the measures that a group of football fans took to get to the 2011 Super Bowl in Dallas, such as two diehard Green Bay Packers fans from Madison, Wisconsin, only to have their Super Bowl experience ruined by the infamous seat fiasco at the Cowboys Stadium.
“[Their trek] will remind you of Planes, Trains and Automobiles,” said Michael Avenatti, the lead attorney for seven disgruntled ticketholders who are finally getting their day in court against the National Football League in a federal trial that began Monday in Dallas. “It was needless to say, an odyssey.”
The jury, which was selected early Monday afternoon, will spend the next week and a half to determine whether the NFL breached its contract to seven disgruntled ticketholders whose seats were either nonexistent, delayed, in the wrong location or had obstructive views when they showed up Feb. 6, 2011 at Cowboys Stadium for Super Bowl XLV.
“This case is about the failure of the National Football League to keep its end of the bargain for some of the NFL’s most diehard fans,” said Avenatti, a partner at Eagan Avenatti in Newport Beach, California.
“Why did they fail to do that?” he continued. “For three things: ego, greed and gross competence.”
But Thad Behrens, who leads the defense for the NFL, emphasized that the NFL takes the full blame for the seating fiasco.
Where the two parties don’t see eye to eye, he said, is how much the NFL owes the fans and whether the NFL intentionally defrauded some of the ticketholders.
“Where do we differ? They are seeking certain items of expenses that in the NFL’s judgment have nothing to do with Super Bowl XLV. The NFL would never dream of having fans come from all over the country to this game with 100 million people watching (on TV) to have what would amount to a miserable experience.”
Behrens emphasized that the NFL spent months planning Super Bowl XLV and took great care to make sure the seating was perfect. A major component of the unfinished seats was the delay caused by severe wintry weather Dallas saw during the week of the game – weather that caused unsafe conditions.
“The NFL is a big business, [but a] simple business: it puts on football games for the pleasure and enjoyment of fans,” he said. “If the fans have a bad time and are mistreated, the NFL’s business is gone.”
The Super Bowl XLV seating fiasco occurred when the temporary seats that were installed in Cowboys Stadium to fully accommodate 93,221 of the 103,219 Super Bowl spectators were not completed in time for the game. Around 850 people were given different seats than what they had paid for and 450 fans did not get a seat at all.
There were also around 1,450 seats that had an obstructed view of the game. Behrens told jurors the NFL resolved the issue by labeling “restricted view” on the tickets and discounting them by a few hundred dollars. A group of the seats, however, lacked the label so fans paid full price for them, including two of the named plaintiffs in the lawsuit.
Obsessed with attendance
Avenatti pointed his finger at the NFL and Dallas Cowboys owner Jerry Jones’ obsession with beating the attendance record of the 1980 Super Bowl in Pasadena, California, as the reason for the seating fiasco. The Pasadena Super Bowl, or Super Bowl XIV, was the most attended Super Bowl game in history and hosted 103,985 spectators. The Dallas Super Bowl was just 766 fans shy of matching that record.
“Evidence will show that Jerry Jones together [with NFL executives] were fixated on breaking this record at Super Bowl XIV,” Avenatti said.
Avenatti showed jurors a cluster of internal NFL emails that he said will be key throughout the trial.
One email from 2010, which was between NFL Senior Director of Event Operations Bill McConnell and NFL Senior Vice President of Events Frank Supovitz, stated “What are we projecting? We’re now at 105,000…. That seems like a big number. But as JJ [Jerry Jones] said, let’s feel what we want to do and push back when it comes.”
“Some three months before the game, they knew they had a problem,” Avenatti said. “The evidence will show a conscious decision to proceed anyway.”
He displayed another email between top league executives from Jan. 31, 2011 – days before the game – that said, “Honestly, it’s a mess. Lots of the temporary seats are really bad. And some cannot even be installed, yet they are sold. We’re gonna have big fun on Sunday.”
“These are not our words, words we cooked up, words from the plaintiffs; their words,” Avenatti told jurors. “And yet, they told our clients nothing.”
The plaintiffs sued the NFL days after the Feb. 6, 2011 Super Bowl in a class-action lawsuit. The Cowboys were also named on the lawsuit, but U.S. District Judge Barbara Lynn dismissed them as defendants in July 2012, determining the tickets were only a contract between the buyers and the NFL.
A year later, she denied class-action certification for the lawsuit, ruling that the plaintiffs failed to prove that the number of people seeking damages was large enough to require that common issues prevailed over individual concerns. She ruled calculating universal damages would be too difficult because each plaintiff incurred different expense amounts.
The lawsuit originally named eight plaintiffs, but one, Constance Young, dismissed her claims late Sunday. Young claimed that she had spent $8,278 for tickets, travel costs and other expenses for her, her husband and her daughter to attend the Super Bowl.
Testimony is expected to last until next Tuesday, March 10.
Dallas Super Bowl Ticket Dispute Trial Begins
By Natalie Posgate
(March 2) – A New Orleans Saints fan and a woman who works in the construction industry are among the eight jurors selected early Monday afternoon for a federal trial involving the infamous 2011 Super Bowl seat fiasco at the Cowboys Stadium in Dallas.
Seven women and one man will determine whether the National Football League breached its contract to seven disgruntled ticketholders whose seats were either nonexistent, in the wrong location or had obstructive views when they showed up Feb. 6, 2011 at Cowboys Stadium for Super Bowl XLV.
If the plaintiffs prevail, they could recover close to $100,000 in damages for the ticket and travel expenses they claimed they incurred to see the Green Bay Packers’ 31-25 victory against the Pittsburgh Steelers in Super Bowl XLV, one of the most attended Super Bowls in history.
Jurors will hear opening statements this afternoon. Thad Behrens of Haynes and Boone in Dallas leads the trial for the NFL, and Michael Avenatti of the California firm, Eagan Avenatti leads the plaintiffs in the litigation.
The lawsuit originally named eight plaintiffs, but one, Constance Young, dismissed her claims late Sunday.
The Texas Lawbook is in the courtroom this afternoon. Check back later for updates on opening statements.
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