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Beckman v. Chicago Bear Football Club Inc.

United States District Court, N.D. Illinois, Eastern Division

March 30, 2018

RUSSELL BECKMAN, Plaintiff,
v.
CHICAGO BEAR FOOTBALL CLUB, INC., and NATIONAL FOOTBALL LEAGUE, Defendants.

          MEMORANDUM OPINION AND ORDER

          Joan B. Gottschall United States District Judge

         It has 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, 15.

         Defendants 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.

         I. FACTS

         For 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).

         A. The Bears Prevent Beckman from Participating in a Season Ticket Holder Experience While Wearing Packers Gear

         Beckman 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 zone.” Id.

         Beckman 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.

         The 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 original).

         Beckman 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 used[1] 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[2] advising that “NO OPPOSING TEAM GEAR WILL BE ALLOWED, ” during the PWFCE on December 18, 2016. Id. ¶ III.C.4.

         Beckman “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.

         B. Beckman Writes the NFL Commissioner

         Beckman 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.

         C. Beckman Alleges That the Denial is Likely to Repeat Every Year

         Since 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.

         D. Soldier Field and the Operating Agreement

          The Bears[3] 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, ”[4] 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.”[5] Response, Ex. 1 at 59. The CPD is also responsible for “performance and payment of security and crowd control on Game Days, ”[6] with the exceptions of the “locker room[s], Team Areas and the Field.” Resp., Ex. 1 at 70; Reply 6-7.

         II. LEGAL STANDARDS

         Though 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.

         A. Subject Matter Jurisdiction (Rule 12(b)(1))

         A Rule 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).

         The 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 attack).

         When 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. 2004)).

         B. Failure to State a ...


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