Zuniga v. Major League Baseball

2021 IL App (1st) 201264

196 N.E.3d 12

457 Ill.Dec. 888

Laiah ZUNIGA, Plaintiff-Appellee,

v.MAJOR LEAGUE BASEBALL, Defendant-Appellant

(Chicago Cubs Baseball Club, LLC, Respondent in Discovery-Appellant).

No. 1-20-1264

Appellate Court of Illinois, First District, SECOND DIVISION.

Filed March 16, 2021

Rami Fakhouri and Brian Karalunas, of Goldman Ismail Tomaselli Brennan & Baum LLP, of Chicago, and R. Adam Lauridsen, Sarah Salomon, and Andrew S. Bruns, of Keker, Van Nest & Peters LLP, of San Francisco, California, for appellants.

Tracy A. Brammeier, of Clifford Law Offices, P.C., of Chicago, for appellee.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 In this interlocutory appeal, the defendant, Major League Baseball (MLB), and the respondent in discovery, Chicago Cubs Baseball Club, LLC (Cubs), challenge the trial court's order denying their motion to compel binding arbitration of a personal injury claim that the plaintiff, Laiah Zuniga, filed in the circuit court of Cook County. For the following reasons, we affirm the order of the trial court.

¶ 2 I. BACKGROUND

¶ 3 This personal injury case arises out of an incident that occurred on August 27, 2018, when the plaintiff was hit in the face by a foul ball while attending a Chicago Cubs baseball game at Wrigley Field. The supporting record indicates that the plaintiff obtained entry to Wrigley Field by presenting a paper ticket created by the Cubs’ ticket office. She had been given the ticket earlier that day by her father, who won it in a raffle at his workplace. The front of the ticket included artwork depicting one of the Cubs players; information about the opponent, the date and time of the game, the seat location, and ticket price; a barcode; and small print that stated, "Event date/time subject to change. No refund. No exchange. Subject to terms/conditions set forth on the reverse side."

¶ 4 On the reverse side of the ticket, approximately one-third of the space was devoted to an advertisement. The remaining space contained six paragraphs of fine print. The first paragraph stated, "By using this ticket, ticket holder (‘Holder’ ) agrees to the terms and conditions available at www.cubs.com/ticketback (the ‘Agreement’ ), also available at the Chicago Cubs administrative office. Key terms of the Agreement are summarized below (the Agreement controls in the event of any conflict)." (Emphases in original.) The third paragraph began with the word "WARNING," used all boldface type, and included a sentence in all capital letters that baseballs might be hit into the stands, that spectators should stay alert, and that the Cubs and other entities would not be liable for resulting injuries. The fifth paragraph, in regular type, stated, "Any dispute/controversy/claim arising out of/relating to this license/these terms shall be resolved by binding arbitration, solely on an individual basis, in Chicago, Illinois. Holder and Cubs agree not to seek class arbitration or class claims and the arbitrator(s) may not consolidate more than one person's claims."

¶ 5 In an affidavit in the supporting record, the plaintiff averred that she had never read the fine print on the back of a ticket to a baseball game, although she had noticed advertisements. She stated that had only ever referenced tickets for game day and seating information. She averred that she had only ever attended baseball games for any team at the invitation of someone else or after receiving tickets as a gift, and she had never personally purchased tickets to a baseball game. She averred that she had never read any ticket terms and conditions, and she had never visited the website at www.cubs.com/ticketback.

¶ 6 The supporting record further indicates that the full terms and conditions that were available on the Cubs’ website at www.cubs.com/ticketback and at the Chicago Cubs administrative office on the day at issue included a far more comprehensive mandatory arbitration provision than what was on the back of the ticket. That provision stated in full as follows:

"MANDATORY ARBITRATION AGREEMENT & CLASS ACTION WAIVER (‘ARBITRATION AGREEMENT’)

The Cubs care deeply about maintaining good relationships with fans. If you have a problem with your ticket and/or those of Minor(s) or the Event, a telephone call to customer service may resolve the matter quickly and amicably. Any dispute not resolved informally must be resolved in accordance with this Arbitration Agreement.

Unless prohibited by federal law, Holder and the Cubs agree to arbitrate any and all claims and disputes relating in any way to Holder's purchase or use of this ticket and/or those of Minor(s), Holder's and/or Minor(s)’ participation in, attendance at, and/or observation of the Event, the Agreement, and any related dealings between them, including, without limitation, claims of bodily injury or property damage arising out of Holder's and/or Minor(s)’ attendance at and/or participation in the Event (‘Arbitration Claims ’), except for Arbitration Claims concerning the validity, scope or enforceability of this Arbitration Agreement, through BINDING INDIVIDUAL ARBITRATION. This Arbitration Agreement involves interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 - 16 (‘FAA’), and not by state law.

In any Arbitration Claim to be resolved by arbitration, neither Holder nor the Cubs will be able to have a court or jury trial or participate in a class action or class arbitration. Other rights that Holder and the Cubs would have in court will not be available or will be more limited in arbitration, including the right to appeal. Holder and the Cubs each understand and agree that by requiring each other to resolve all disputes through individual arbitration, WE ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ALL DISPUTES SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. The arbitrator(s) may not consolidate the claims of multiple parties.

Arbitrations shall be administered by the American Arbitration Association (‘AAA’) pursuant to the applicable AAA rules in effect at the time the arbitration is initiated. You may obtain information about arbitration, arbitration procedures and fees from AAA by calling 800-778-7879 or visiting www.adr.org. If AAA is unable or unwilling to arbitrate a dispute, then the dispute may be referred to any other arbitration organization or arbitrator the parties both agree upon in writing or that is appointed pursuant to section 5 of the FAA. The arbitration shall take place in the city where the Ballpark is located. The arbitrator shall be authorized to award any relief that would have been available in court, provided that the arbitrator's authority is limited to Holder and the Cubs alone, except as otherwise specifically stated herein. No arbitration decision will have any preclusive effect as to non-parties. The arbitrator's decision shall be final and binding. The parties agree that this Arbitration Agreement extends to any other parties involved in any Arbitration Claims, including, but not limited to, Minor(s) and the Released Parties. This Arbitration Agreement shall take precedence over the rules of the arbitration organization or arbitrator in the event of any conflict.

The Cubs will be responsible for paying all arbitration fees other than the amount of filing fees Holder would have incurred in the state or federal court where the Event took place, whichever is less. Notwithstanding any other provision herein, Holder and the Cubs may seek relief in a small claims court for Arbitration Claims within its jurisdiction. In addition, Holder and the Cubs each may exercise any lawful rights to seek provisional remedies or self-help, without waiving the right to arbitrate by doing so. Notwithstanding any other provision of the Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire Arbitration Agreement shall be void. If any portion of this Arbitration Agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Arbitration Agreement. This Arbitration Agreement will survive the termination of the Agreement, the conclusion of the Event, and/or the bankruptcy or insolvency of a party (to the extent permitted by applicable law).

YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT, BUT YOU MUST EXERCISE THIS RIGHT PROMPTLY. If you do not wish to be bound by this agreement to arbitrate, you must notify us by mailing a written opt-out notice, postmarked within seven (7) days after the date of the Event. You must send your request to: Chicago Cubs Baseball Club, LLC, Attn: Office of the General Counsel, Re: Arbitration Opt Out, 1060 West Addison Street, Chicago, IL 60613. The request must include your full name, address, account number, and the statement ‘I reject the Arbitration Agreement contained in my Event Ticket.’ If you exercise the right to reject arbitration, the other terms of the Agreement shall remain in full force and effect as if you had not rejected arbitration.

Prior to initiating a lawsuit or an arbitration proceeding under this Arbitration Agreement, the Claimant shall give the other party or parties written notice of the Arbitration Claim (a ‘Claim Notice’) and a reasonable opportunity, not less than 30 days, to resolve the Arbitration Claim. Any Claim Notice to one or more of the Cubs shall be sent by mail to Chicago Cubs Baseball Club, LLC, Attn: Office of the General Counsel, Re: Arbitration Claim, 1060 West Addison Street, Chicago, IL 60613. Any Claim Notice must (a) identify the Claimant by name, address, email address, and telephone number; (b) explain the nature of the Arbitration Claim and the relief demanded; and (c) be submitted only on behalf of

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