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Patriots fans’ Deflategate lawsuit has almost no shot at succeeding

A group of Patriots fans filed a federal lawsuit against the NFL over the Deflategate punishment handed down to the Patriots. In what amounts to a legal Hail Mary, the fans’ suit doesn’t seem likely to go anywhere.

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With the 2016 NFL draft just three weeks away, seven New England Patriots fans on Tuesday petitioned a federal court to give the Patriots their first-round pick back. The case—Orsatti v. NFL—is akin to a Hail Mary pass and will most likely be batted down by a court.

The seven fans, led by attorney Seth Carey, filed their complaint in the U.S. District Court for the District of Massachusetts. They seek a restraining order that would allow the Patriots to select 29th overall in the 2016 draft. The NFL took away the Patriots’ first-round pick this year as well as their fourth-round pick in the 2017 draft as part of the Deflategate punishment. The seven fans have sued not only the NFL, but also two individuals: NFL commissioner Roger Goodell and Patriots owner Robert Kraft, whom the seven insist “chose his fellow billionaire owners above ... fans.”

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Much of the complaint—paragraphs 18 to 45 on pages 3 to 10 of the 15-page filing—is a word-for-word quote of my Jan. 18, 2016 article, “Deflategate one year later: Anatomy of  a Failed Controversy”. While I am flattered to see my work used so extensively in a court filing, it does not change my skepticism of the lawsuit.

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The complaint asserts that Patriots fans have a legal interest in the NFL restoring the Patriots’ first-round pick and that the NFL, along with Goodell and Kraft, have violated that interest. The fans insist that the NFL, Goodell and Kraft have conspired to break several types of laws, including consumer protection, contract and racketeering laws. A so-called “fraudulent inducement of consumers of the Patriots to purchase tickets, cable and NFL Sunday Ticket,” the fans insist, reveals an intentional and unlawful conspiracy against fans. The fans also maintain that they have suffered extensive emotional harm, including “embarrassment, ridicule and depression due to the rest of the country who is jealous of the Patriots ‘piling on’ and criticizing the Patriots and their fans for being ‘cheaters.’”

While I have been sharply critical of the NFL’s Deflategate punishment, it is difficult to envision a court agreeing with the fans’ theory that the law ought to guarantee them the satisfaction of the Patriots selecting a player in the first round. No court, as far as I know, has ever endorsed such an idea. Somewhat analogously, a Miami Heat ticketholder sued the San Antonio Spurs in 2013 over not being able to watch Tim Duncan, Manu Ginobili and Tony Parker play in a game. After a long road trip, Spurs coach Gregg Popovich had strategically rested these players. The NBA fined the Spurs $250,000 for doing so. The fan’s much-ridiculed lawsuit, however, went nowhere. This is not surprising, since the fan’s ticket to attend the Heat-Spurs game offered him no guarantee of watching specific players. The ticket only guaranteed that the Heat and Spurs would play each other, which is what occurred. With Patriots fans, although they will not be able to watch whomever the Patriots would have selected with the No. 29 pick, they will nonetheless be able to watch other Patriots players.

A court will also be leery of involving itself in a dispute between a league and a franchise without any accompanying request by that league or franchise. The fans here contend that Kraft should have challenged the NFL and that his refusal to do so created “standing”—a legitimate legal interest in a dispute—for fans to sue. This is a difficult argument to make. First, as I have explained in detail, Kraft declined to challenge the NFL not because of a conspiracy with the NFL—the same league, remember, that had punished Kraft in a way that he clearly found both unfair and unwarranted—but because such a move would have had almost no chance of succeeding. Kraft, like other NFL owners, has contractually assented to resolving any disputes with the league internally. Owners also contractually accept any league discipline as final and not suitable for a lawsuit. For Kraft to have nonetheless sued the NFL—and thereby sue other NFL owners, many of whom are Kraft’s friends and rely on his counsel—would have been a peculiar move for a 74-year-old billionaire known for possessing reasonable judgment.

Second, even if we accept the dubious proposition that Kraft “should have” sued the NFL, it’s not clear why his refusal to do so empowers fans to sue. An accompanying brief by the seven fans argues that Patriots fans “should have just as much standing as anyone under the sun” to sue over the lost draft picks. This strikes me as a reach. The fans’ only plausible “injury” is some combination of disappointment and frustration over the NFL’s questionable logic in punishing the Patriots and in being denied an opportunity to enjoy how the 29th player selected might have improved the Patriots. These are not the types of injuries that the law is designed to redress and are thus unlikely to provide standing. The Patriots making smart selections at other points in the draft and wisely signing free agents would be more appropriate vehicles to cure the pain.

Third, a court will wonder about precedent and the slippery slope of litigation. If a court elects to involve itself in a disciplinary dispute between a private sports league and a private ownership group in which neither has petitioned for the court’s involvement, that court might unwittingly open the floodgates for other “fan disappointment” lawsuits. Consider any time a controversial league punishment occurs. For example, if Patriots fans have a legal right to see the 29th player selected play as a Patriot, should New Orleans Saints fans have sued over the loss of two second-round picks due to the NFL’s punishment in Bountygate, another questionable controversy?

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Orsatti v. NFL is not the first attempt by Patriots fans to obtain legal relief. In February, Massachusetts resident Jim Derochea filed a consumer complaint with the Office of Massachusetts Attorney General Maura Healey. Derochea’s complaint, which has thus far been signed by 7,300 people, asserts that consumers of Patriots products have been damaged by the NFL’s actions in Deflategate. The complaint faces long odds, although like Orsatti v. NFL, it reveals how significantly Deflategate has impacted the Patriots fan base. Whether a court or law enforcement officer would be willing to do anything about that impact is another matter altogether.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute