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The Estate of Harold Oshinsky, Individually, and On Behalf of A Class of Similarly Situated Persons v. New York Football Giants

February 2, 2011

THE ESTATE OF HAROLD OSHINSKY, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS,
v.
NEW YORK FOOTBALL GIANTS, INC., ET. AL. DEFENDANTS.



The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.

NOT FOR PUBLICATION

OPINION

This is a breach of contract action arising out of the New York Football Giants and New York Jets (collectively "Defendants") imposition of a personal seat license (PSL) contract in connection with the purchase of season tickets for the new Giants Stadium (the "New Stadium"). The PSL contract imposes an up-front fee on season ticket holders for the right to purchase season tickets; such a requirement was not previously imposed on season ticket holders. Following my prior decision in Oshinsky v. New York Football Giants, Inc., No. 09-cv-1186, 2009 U.S. Dist. LEXIS 107608 (D.N.J. Nov. 17, 2009) ("Oshinsky I"), the major issue remaining in this case is whether the imposition of a PSL violated an implied contract, if any.*fn1 As noted in Oshinsky I, implied contracts may arise out of the conduct of the parties; thus, discovery was undertaken to review same.

The primary motion before the Court is a joint motion for summary judgment, submitted by Defendants the New York Football Giants, Inc. and Giant's Stadium LLC (collectively "Giants Defendants"), and Defendants New York Jets LLC and Jet's Stadium Development LLC (collectively "Jets Defendants").*fn2 Regrettably, during the pendency of this action, the named Plaintiff, Harold Oshinsky, died; therefore, the Estate of Harold Oshinsky (Estate) has stepped in to this action on behalf of those similarly situated (collectively "Plaintiffs") to oppose the Defendants' motion.*fn3

I. BACKGROUND

A. Plaintiffs' Allegations of an Implied Contract for the Renewal of Season Ticket Subscriptions

In the summer of 2008, Defendants publicly announced that all season ticket holders' subscriptions would be terminated, unless the season ticket holder agreed to enter into a PSL contract for each seat with Giants Stadium LLC and/or Jets Stadium Development LLC. The Defendants' PSL contract sets forth that the season ticket holder acquires a personal seat license for as long as the teams play in the New Stadium and requires a payment of $1000 to $25,000 for each seat assigned to the season ticket holder.*fn4 The Plaintiffs argue that their conduct, as well as the conduct of Defendants over the last thirty years, has conveyed irrevocable renewal rights to the Plaintiffs. Hence, the termination of their season ticket subscription for failure to enter into the new PSL agreement breaches the contract that was established by the parties' prior conduct.

As previously mentioned, the named Plaintiff, Mr. Oshinsky, died in January 2010. As a result, his Estate was substituted as Plaintiff on March 10, 2010. However, the co-executors of his Estate,*fn5 have stipulated that they "do not have any personal knowledge or information relevant to the determination of whether there was an express or implied contract between Harold Oshinsky (decedent) or other members of the putative class and Defendants, and whether there was a breach of any such contract." Although Mr. Oshinsky drafted an affidavit prior to his death, which is referred to in this Opinion, it appears that Mr. Oshinsky's interest in the teams was waning because he had not attended a single Giants or Jets game since 2002.

Mr. Oshinsky's death has left some holes or voids in this case. For instance, Mr. Oshinsky contends that he acquired his tickets from Cosmo Iacovazzi*fn6 about twenty-five years ago and that the implied contract extends from that time; however, since Mr. Iacovazzi died twenty years ago, there is no testimony from him about any implied contract. Without testimony from Mr. Iacovazzi, there is quite simply no way to determine if he agreed with Mr. Oshinsky's position that season ticket holders purchased the renewal right for all future years, so long as the season ticket holders paid for their season tickets annually.

In addition to Mr. Oshinsky's affidavit, Plaintiffs rely on the testimony of Jerry Fisher and Dr. Audry Weissman. Jerry Fisher, who is presently seventy-five years old, established season tickets with the Giants in 1959 for five mid-field seats. Mr. Fisher indicates that he "was led to, and did reasonably believe that beginning in 1959 the Giants and [he] had entered into an unwritten agreement" about his right to renew his season ticket subscription each year without major changes. Mr. Fisher believed that so long as he paid his season ticket fees, the Giants would provide the season tickets to home games and "permit [him] to retain ownership of [his] season ticket account" for as long as the Giants played in the New York metropolitan area.

Mr. Fisher alleges that the front side of the annual invoice constitutes the entire agreement between he and the Giants. According to Mr. Fisher, the front side of the invoice provides limited information -- that is his name, address, account number, seat location, and the amount to be paid. In addition, the front side explained how to change incorrect information. Mr. Fisher states that he complied with those terms every year.

Mr. Fisher also noted that the back side of the invoice contained a "code of conduct," which regulated unruly behavior at the games, plus it contained a procedure by which season ticket holders could transfer their tickets to third parties, at any time in the future, regardless of other disclaimers. For example, Mr. Fisher alleges that the Giants allowed season ticket holders to transfer their tickets to another family member; however, as explained below, the Giants and Jets required that such a transfer take place through a written process, and their agreement obtained.

Within his affidavit, Mr. Fisher does not rely on any written expression of renewal rights, but states that the policy was (1) communicated "by other season ticket holders who had been advised by the owners and/or officers of the Giants";*fn7 (2) contained in "blurbs" in newsletters; and (3) stated at games, during intermissions celebrating long time season ticket holders. Moreover, Mr. Fisher acknowledges that the back side of the invoice contained some limiting language that season tickets were "not transferable" and "were subject to revocation"; but Mr. Fisher dismissed those conditions because he thought they "were simply left over boilerplate language," and were not a "clearly expressed reservations of rights." In other words, they were vague and arbitrary conditions.

Although the teams have both re-located to new home stadiums on several occasions during the past fifty years, Mr. Fisher posits that such moves did not effect his renewal rights. Thus, each time that the Giants or Jets moved to a new home stadium -- e.g., the Giants from Yankee Stadium to the Yale Bowl and the Jets from Shea Stadium to Giants Stadium -- the teams simply assigned each season ticket account the same number of seats in a comparable seat location. Mr. Fisher concludes that the same result should have occurred here.

Mr. Fisher also argues that the PSL is inequitable on account of his dedicated loyalty to the Giants from 1960 through 1980, when the Giants were performing poorly.*fn8 Mr. Fisher laments he might have chosen to allow my account to be terminated for cause by simply ceasing to pay the annual fee, particularly during the twenty year period from the early 1960s to the early 1980s when I continued to maintain my account in good standing even while the Giants fielded horrible football teams year after year, eventually culminating with the game between the Giants and the Philadelphia Eagles that is despairingly referred to by Giants fans as "the Fumble" and happily referred to by Eagles fans as "the Miracle in the Meadowlands."*fn9

Lastly, Mr. Fisher asserts that the PSL is a breach of an implied contract because the Giants have never previously discontinued season tickets without cause, and no cause for revocation was shown here.*fn10

Dr. Weissman submits testimony similar to that of Mr. Fisher, but, unlike Mr. Fisher, she is both a Giants and Jets season ticket holder since 2008. Dr. Weissman's father was a season ticket holder for almost forty years before transferring his season tickets to his daughter. According to Dr. Weissman, her father acquired the Giants tickets from a business friend, Murray Packman. At some point in the 1980s, with the Giants' consent, her father became the recognized season ticket holder. It does not appear that there ...


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