by Paul Alan Levy
My friends know that one of my main passions outside of work is soccer; I root for various teams abroad, for the US national teams, and especially for my home team, DC United; I even travel to away games (including the World Cups in South Africa and Brazil). So when an opportunity comes to address soccer issues in a work context, I jump at it.
The Procedures Used to Get Agreement
I have had season tickets since 1996, the first season DC United played, but I recoiled a bit when, after renewing my season tickets for next year despite the team’s decidedly mediocre performances this year, I received an email from the team entitled “2017 D C United Season Ticket Member Agreement – Signature Needed.” The email told me that there was an agreement to be signed to complete the process of becoming a season ticket holder for the following season, and warned “please do not share this email” (it is linked here).
The link took me to a screen with a box to click whereby I would agree to the e-signature process; the agreement itself was visible on this screen, but it was obscured somewhat by a darkened screen that made it harder to read(shown here). Strictly speaking, clicking this box should not have committed me to the agreement itself, but I did not want to take that chance; so instead I chose the option of printing the agreement, signing the hard copy and returning it.
The Language of the Agreement
The agreement is full of the vague language that many lawyers tell their clients to put in agreements, but as a lawyer focusing on free speech and recently litigating on behalf of clients victimized by non-disparagement clauses that they never noticed when they signed agreements with businesses, my immediate focus was on the following speech restrictive language:
Restrictions: You agree not to transmit, distribute, or sell (or aid in transmitting, distributing or selling), in any media any description, account, picture, video, audio or other form of reproduction of any D.C. United game or any surrounding activities for which your ticket is issued. Your ticket(s) may not be used for any form of commercial or trade purposes, including, but not limited to, the sale of all or substantially all of your season tickets for non personal, business use, advertising, promotions, contests or sweepstakes, without the express written consent of D.C. United and Major League Soccer.
Problems with the Language
Fans like to talk about what happened at the game – there are various listservs and web-based discussion forums, not to speak of each others’ Facebook pages. There are often heated discussions among fans in the comments section of the Washington Post reporter Steve Goff’s “Soccer Insider” blog. Many fans take photos and short videos at games, with SLR cameras as well as cellphones, and post them on their Facebook pages or elsewhere; such photos might well accompany or even illustrate comments about the game. Under the terms of this agreement, DC United could sue for breach of contract, or (based on language elsewhere in the contract) it might cancel the writer’s season ticket package without any refund if it was unhappy about being criticized.
I am especially sensitive to this sort of restriction because, several years ago, I had a bit of a set-to with some team staffers, as well as the leaders of a supporters’ group in the section of the stadium where I have my “seats,” when I was leading a drive by some fans to urge the team to fire a coach we thought ineffective. We worked that out (indeed, team management was a more understanding on the speech issues than were some of the supporters group leadership in the heat of the moment), but over the past few years the personal connections and the flexibility that team management showed in the early years of the team has significantly declined, so I am not at all inclined to sign a contract on assurances like, “Oh, we would never do that.”
When I discussed this sentence with a member of the team's management (not a lawyer), he told me that the team was only trying to prevent "commercial" communications. That would be bad enough – demanding based on a hot-news sort of theory that fans not, for example, post their reviews of the team on a blog that carries advertising. But the agreement is not limited to commercial uses of the information. It says, "distribute, transmit or sell" — so the distribution or transmission need not be sold. And indeed he suggested that the language could be invoked if, for example, someone posted information about a game that was hurtful to a fan. You know, only good reasons, not bad reasons.
The second sentence of the Restrictions paragraph also strikes me as problematic, although not a free speech issue. I suppose I could understand the team not wanting people to buy season tickets and then resell the whole package at a higher price, but the language “ticket(s) may not be used for any form of commercial or trade purposes” is not limited by the “all or substantially all: language that follows. Many people use their season tickets to bring customers or clients to soccer games – I commonly bring colleagues and student interns to games. I suppose that could be considered a “commercial or trade purpose.” I need the express written consent of the team each time?
The Team's Attempted Explanation
When I consulted DC United about this, I was told that this was not what the team has in mind, but I was also told that the language was provided to the team by the league, so I was given no hope that the team itself would revise the language. (Under the unique single ownership structure of Major League Soccer, the teams are owned by the league; each team's "owners' have only the operating rights) And MLS's contact person was not available for discussion. But I hope that MLS will change the language it is imposing on fans.
In the meantime my advice to my fellow season-ticket holders is to hold off on signing the agreement.
UPDATE 1. One fellow fan was so incensed by other language in the agreement that he sent me this extensive markup. I post it with his permission but without endorsing everything he has to say. And since posting, I have heard from a number of other very longterm fans who shared their serious unhappiness about much of the language of the agreement.
UPDATE 2. The team contacted me in an effort to explain the reasons for the language. I understood some of the reasoning but, at this point, I see no justification for the language used here. The team representative who spoke to me after posting did say that the team will be reviewing with its counsel some of the specific language I have discussed here with a view to whether it can be refined in a way that protects the asserted interests without preventing fans from engaging in legitimate uses. I was glad to hear that.