United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall United States District Judge
been remarked that, at least in some parts of the United
States, football is “next to religion, except for some
people who [a]re really serious about football.”
President Clinton, Remarks by President After Viewing Movie -
Remember the Titans (Sept. 26, 2000), available
at 2000 WL 1424688, *1. This case about a fan's
efforts to wear the gear of the team he supports arises under
the First Amendment's free speech clause. The plaintiff,
Russell Beckman (“Beckman”), has sued the Chicago
Bears Football Club, Inc. (“Bears”) and the
National Football Association (“NFL”). He
represents himself. On December 18, 2016, the Bears'
staff allegedly denied Beckman entry into a Bears'
pre-game experience at Soldier Field in Chicago because he
was wearing Green Bay Packers (the Bears' opponent that
day) clothing. Compl. ¶¶ III.A, B, ECF No. 1.
Beckman seeks injunctive relief and court filing and service
fees associated with this lawsuit. Compl. ¶¶ V.14,
move under Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6) to dismiss the complaint for lack of subject-matter
jurisdiction and for failure to state a claim upon which
relief can be granted. The court concludes that Beckman has
not established that he has standing to sue the NFL, but the
complaint states a First Amendment claim against the Bears.
purposes of deciding defendants' motion, the court
assumes the following facts alleged in Beckman's
complaint are true and draws all reasonable inferences from
those facts in his favor. See, e.g., Manistee
Apartments, LLC v. City of Chicago, 844 F.3d 630, 633
(7th Cir. 2016).
The Bears Prevent Beckman from Participating in a Season
Ticket Holder Experience While Wearing Packers Gear
is a personal seat license (“PSL”) owner with
season tickets to the Bears. Compl. ¶ III.C.1.
From the Permit and Operating Agreement (the “Operating
Agreement”) and the Complaint, it appears Beckman is an
“Initial Football PSL Licensee.” Under the
Operating Agreement, an “Initial Football PSL, ”
means “the Football PSLs initially to be sold in
connection with the financing of the Project and which are
sold prior to the Final Completion.” Resp. to Mot. to
Dismiss (“Resp.”), Ex. 1 at 11, ECF No. 24-1. The
“Project, ” refers to the “adaptive reuse
of Soldier Field.” Id. at 14. Beckman is
likely an “Initial Football PSL Licensee, ”
because the Chicago Park District “started a nearly one
billion dollar renovation of Soldier Field to accommodate the
Chicago Bears, ” and Beckman “was offered an
opportunity to purchase personal seat licenses in the new
Bears home stadium.” Compl., Ex. A at 2. Subsequently,
Beckman “purchased two club seat personal seat licenses
and obtained three other non-PSL seats in the south end
claims the Bears and the NFL violated his First Amendment
right to free speech when he was denied access to the
Bears' Pre-Game Warm-up Field Credential Experience
(“PWFCE”) because he was “dressed in
opposing team gear.” Compl. ¶ III.C.10. The PWFCE
is part of a “program to reward season ticket holders,
” that was formally created by the Bears prior to the
2016 football season. Id. ¶ III.C.3. Through
the program, the Bears exclusively “reward” all
Chicago Bears Season Ticket Holders (“STHs”) with
“points.” Id. ¶¶ III.C.3, C.7.
STHs can then redeem their points for “experiences,
” like the PWFCE. Id. ¶ III.C.3.
PWFCE provides STHs and their guests the opportunity to walk
and stand on the northeast corner and end zone of the
Bears' playing field in Soldier Field during pre-game
warm-ups. Compl., Ex A 10, Ex. D 1. The PWFCE credential, but
not the “field pass, ” id., Ex. A 16,
provides that “[n]o visiting team clothing is allowed,
” Compl. Ex. D 1, as does the PWFCE registration
confirmation email, id. Ex. A 14-15 (“NO
OPPOSING TEAM GEAR WILL BE ALLOWED”), and terms within
the STH Experiences mobile application, id. Ex. A 22
(“The terms posted on the STH Experiences mobile app
specifically state that NO VISITOR CLOTHING will be
allowed.”). Additionally, the Bears assert that the STH
Experiences are “subject to additional terms that may
be set by the organization, ” including the
“right, without refund or any amount paid, to refuse
admission to, or eject any person . . . who fails to comply
with venue or event promoter rules” as indicated on the
“terms of purchase governing the STH Experiences
redemptions.” Id. pp. 26-27 (ellipsis in
received an email from the Bears on July 13, 2016, stating he
had been awarded eleven points he could “use to
purchase ‘experiences, '” which he
to “purchase three spots for the ‘pregame warm-up
field experience, '” for the Bears versus Packers
game that would take place on December 18, 2016. Compl.
¶ III.C.3. Shortly before the December 18, 2016, game,
Beckman received an email from the Bears advising that
“NO OPPOSING TEAM GEAR WILL BE ALLOWED, ” during
the PWFCE on December 18, 2016. Id. ¶ III.C.4.
“informed the Bears that [he] would show up to the
experience registration, ” wearing Packer clothing.
Id. ¶ III.C.5. He was “denied
participation in the experience.” Id.
Beckman Writes the NFL Commissioner
wrote NFL Commissioner Roger Goodell seeking Goodell's
assistance in getting the Bears to stop enforcing their rule
against visiting team apparel. Id. ¶ III.C.6.
Goodell did not respond. Id.
Beckman Alleges That the Denial is Likely to Repeat Every
the December 2016 game, Beckman has received additional
offers to participate in Bears' experiences with his
accrued points. Id. ¶ III.C.7. He characterizes
this as a “repeatable annual event.” Id.
¶ III.B. Indeed, the complaint states that Beckman
received an email telling him he had 12 points for the 2017
season, and he intended to use them to purchase PWFCEs for
the Bears-Packers game scheduled for November 12, 2017.
Id. ¶ III.C.7. The Bears mobile app stated
“[n]o visiting team clothing” was allowed at any
game in the 2017 season. Id. ¶ III.C.7, 8. The
Bears play the Packers at Soldier Field once each regular
season according to the complaint and Beckman states that he
has always worn Packer apparel to the team's home and
away games. Compl. IV.12 (adding that this is “a long
time tradition” for his family). Beckman purchased his
season tickets in large part because he wanted to have the
chance to enjoy the PWFCE with his friends and family,
including future grandchildren. Id. ¶ III.C.2.
Soldier Field and the Operating Agreement
Bears play home games at Soldier Field in
Chicago. Resp. 9-10. Soldier Field is “a publicly
financed facility owned by the Chicago Park District
(“CPD”).” Resp. 12. The Bears lease Soldier
Field from the CPD under the Operating Agreement, which
stipulates, among other conditions, that the Club must pay an
annual “Facility Fee, ” to use the field. Resp., Ex.
1 at 45- 46; see also Resp. 2, 8; Reply 6-7.
According to the Operating Agreement, “the CPD shall be
obligated to perform and pay the cost of all Routine
Maintenance.” Response, Ex. 1 at 59. The CPD is also
responsible for “performance and payment of security
and crowd control on Game Days, ” with the
exceptions of the “locker room[s], Team Areas and the
Field.” Resp., Ex. 1 at 70; Reply 6-7.
the briefs discuss only the Rule 12(b)(6) standard, the
NFL's standing challenge must be analyzed as a motion to
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1). See, e.g., Taylor v. McCament,
875 F.3d 849, 853 (7th Cir. 2017). The court therefore
examines both standards.
Subject Matter Jurisdiction (Rule 12(b)(1))
12(b)(1) motion to dismiss allows a party to challenge the
existence of subject matter jurisdiction. See Fed.
R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion raises either a
facial or factual challenge to subject matter jurisdiction.
Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir.
2015) (citing Apex Digital, Inc. v. Sears, Roebuck &
Co., 572 F.3d 440, 443 (7th Cir. 2009)). A facial
challenge claims that the complaint's, or another
pleading's, allegations are insufficient, while
“[a] factual challenge contends that ‘there is in
fact no subject matter jurisdiction, ' even if the
pleadings are formally sufficient.” Id.
(quoting Apex Digital, 572 F.3d at 443-44) (emphasis
omitted). Regardless of which type of challenge is raised,
the plaintiff, as the party invoking federal jurisdiction,
always bears the burden to establish that subject matter
jurisdiction exists. United Phosphorus, Ltd. v. Angus
Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003),
overruled on other grounds by Minn-Chem, Inc. v. Agrium,
Inc., 683 F.3d 845 (7th Cir. 2012).
court analyzes the instant motion as a facial challenge
augmented by Beckman's response. The portion of the
pending motions on standing challenges the sufficiency of
Beckman's complaint. The court also treats the statements
in Beckman's response to the instant motion as though
they were set forth in the complaint because they are
consistent with it and because the NFL's reply analyzes
Beckman's response in the same manner. In other words,
the court affords the statements Beckman makes in his
response the same presumption of truth as statements in a
complaint receive on a facial challenge. See Apex
Digital, 572 F.3d at 444 (discussing differences between
facial and factual attacks and the district court's power
to go beyond the pleadings and weigh evidence on a factual
determining if subject matter jurisdiction is proper on a
facial challenge, “the district court must accept as
true all material allegations of the complaint, drawing all
reasonable inferences therefrom in the plaintiff's
favor.” Remijas v. Neiman Marcus Grp., LLC,
794 F.3d 688, 691 (7th Cir. 2015) (quoting Reid L. v.
Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir.
Failure to State a ...