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Law360 (April 21, 2020, 5:49 PM EDT) -- A pair of New York baseball fans hit Major League Baseball, all its teams and online ticket sellers with a proposed class action in California federal court Monday seeking refunds for fans across the country who purchased tickets to games that have been postponed indefinitely due to the coronavirus pandemic, in what could be the first such lawsuit against a major sports league.
The fans alleged that more than a month past Opening Day, MLB has said games are postponed, rather than canceled, as a "pretext" for it and its online ticket sellers such as Ticketmaster and StubHub to avoid paying refunds. They said this continues even though the games "unlikely to be played, or to be played without fans in attendance" due to concerns about the spread of the coronavirus, or COVID-19.
Matthew Ajzenman, a New York Mets season ticket holder, and Susan Terry-Bazer, who bought tickets to a New York Yankees-Boston Red Sox game originally scheduled for next month, alleged that this means baseball fans are unfairly bearing the cost of the crisis by not being able to get their money back at a time when many are facing economic hardship and tens of millions file for unemployment.
"As such, at a minimum, the defendants should acknowledge this and recognize that [their] loyal fans cannot bear the entire brunt of the economic hardship of the pandemic while team owners and ticket merchants keep the plaintiffs' money," the complaint said. "At this point, defendants must at a minimum offer a plan to refund monies owed to the class."
Experts told Law360 last week that sports leagues are courting trouble by not offering refunds to fans as suspensions continue to be extended. Some said that while there might be traditional defenses to such claims, with the unprecedented nature of this pandemic it is unclear exactly how courts will treat the claims.
MLB shut down during spring training weeks before the season was supposed to start on March 26, as have the NHL and NBA. While all three have said they plan to return, it is not yet clear when and how they will be able to do so as the coronavirus continues to spread across the country. As of Monday, there have been nearly 750,000 cases of COVID-19 in the U.S. and more than 39,000 deaths, according to the federal Centers for Diseases Control and Prevention.
Ajzenman and Terry-Bazer's suit alleged that fans "had no way of knowing that defendants had no intention of refunding them in the event that a public health and economic crisis were to occur."
"The only parties who benefit are Defendants," the suit said. "Defendants' failure to refund consumers their payments for games not being play[ed] during a historic, world-wide health and economic crisis – is immoral, unethical, oppressive, and substantially injures consumers.
They further name ticket sellers StubHub, Ticketmaster, Live Nation and Last Minute Transactions as defendants, alleging that some are still promoting MLB game tickets on their websites.
By continuing to market and say that tickets are good for 2020 MLB games, the defendants are misleading fans in violation of the California Consumer Legal Remedies Act and Unfair Competition Law. The plaintiffs, both New York residents, say they can bring the suit in California since that is where StubHub is based and because MLB has teams in the state.
The pandemic has hit the live-event industry hard. StubHub, which has said it is dealing with more than 20,000 event cancellations, has already been targeted in suits after it reversed its 100% percent money-back guarantee.
A spokesman for the StubHub declined to comment on the new suit Tuesday, citing a policy not to comment on pending litigation. But the ticket seller is offering ticket buyers to events that have been canceled a credit of 120% of their purchase price to be used by Dec. 31, 2021.
MLB has not officially canceled games. It has said it is considering "considering numerous contingency plans" to start the season with the hope to play as many games as possible. Reports indicate those plans include playing games in either or both Arizona and Florida in stadiums without fans and with players isolated in hotels.
However, such a plan brings liability risks and would require, at a minimum, that the league take tremendous precautions to prevent any spread of the virus for the safety of its players and the local communities.
Representatives for MLB and Ticketmaster did not immediately respond to requests for comment.
Ajzenman and Terry-Bazer are represented by David Azar, Marc Grossman, Peggy Wedgworth, Andrei Rado, Jennifer Czeisler, Blak Yagman and Michael Acciavatti of Milberg Phillips Grossman LLP.
Counsel information for the defendants was not immediately available.
The case is Ajzenman et al. v. Office of the Commissioner of Baseball et al., case number 2:20-cv-03643, in the U.S. District Court for the Central District of California.
--Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
