Fans Must Manage Expectations After 9th Circ. Pacquiao Case

Dec 20, 2019

By Gregory M. Smith and Sam Fogas, The Maloney Firm, APC

Originally published by Law360
The rules of competition dictate that approximately half of sports fans leaving an arena will be disappointed at the outcome — after all, there can only be one winner. But sometimes when all the fans feel let down, the action will shift into the courtroom.
It will now be harder for fans to become litigants because, recently, the U.S. Court of Appeals for the Ninth Circuit held that sports fans who suffer through a disappointing match or game can’t sue the athletes involved for a lackluster performance even if one of them publicly lies about an injury that might limit his or her performance.
In re Pacquiao-Mayweather Boxing Litigation was the result of a multitude of lawsuits brought against boxers Manny Pacquiao, Floyd Mayweather, Home Box Office Inc. and others. The plaintiffs claimed that they were defrauded into buying tickets and pay-per-view packages for the much-hyped Pacquiao/Mayweather boxing match in May 2015 because the defendants misrepresented Pacquiao’s health by failing to reveal that he had a shoulder injury.
Immediately before the bout, Pacquiao, his team and the fight promoters publicly described Pacquiao as being in “pristine condition,” “better than [they had] ever seen him,” and had told the media that “[y]ou’re going to see the best Manny.” These statements were all made despite their knowledge that Pacquiao had torn his rotator cuff about a month before.
The day before the bout, Pacquiao completed a prefight medical questionnaire required by the Nevada State Athletic Commission, in which Pacquiao represented — under penalty of perjury — that he had not suffered a serious injury of any kind. Then a mere three hours before the fight, Pacquiao told NSAC about the shoulder injury and asked permission for an injection to manage the pain.
NSAC denied the request, but its physicians cleared Pacquiao to fight. Pacquiao then went on to lose to Mayweather in a 12-round unanimous decision that the plaintiffs described as a “yawner.” After the loss, Pacquiao publicly disclosed his injury for the first time and admitted it hampered his performance.
The U.S. District Court for the Central District of California dismissed the lawsuits because the plaintiffs got what they paid for: a boxing match between Pacquiao and Mayweather. The Ninth Circuit affirmed the dismissal, describing the statements regarding Pacquiao’s health as puffery and holding that the plaintiffs “suffered no cognizable injury to a legally protected interest because ‘the alleged misrepresentations and omissions implicate the core of athletic competition’ as opposed to ‘business outcomes and financial performance.’” The court wrote, “although boxing fans — like all sports fans — can reasonably expect a regulation match, they can also reasonably anticipate a measure of unpredictability that makes spectator sports exciting.”
In reaching its conclusions, the court adopted the license approach that has been previously used by other circuits to interpret the rights of sporting-event ticket buyers. It looked to the U.S. Court of Appeals for the Seventh Circuit’s holding in Bowers v. Fédération Internationale de l’Automobile. [1]
The Bowers Court had affirmed that the attendees of an F1 auto race could not state a cause of action for breach of contract when only 14 of the expected 20 cars participated in the race. It remarked, that “most states agree that the seller contracts only to admit the plaintiff to its property at a given time” not “to provide the spectacle” and that the seller agrees “only to license the plaintiff to enter and view whatever event transpires.”
The U.S. Court of Appeals for the Third Circuit reached a similar conclusion in an action brought by New York Jets season ticket holders in a case against the New England Patriots, Mayer v. Belichick . Mayer sued for breach of contract, fraud and other counts, in which he alleged that the Patriots had secretly videotaped their opponents sideline signals, thus depriving ticket holders of “an honest match played in compliance with all laws, regulations and NFL rules.”
The Mayer court held that fans had “at best, a contractual right to enter Giants Stadium and to have a seat from which to watch a professional football game” but that no cause of action could be stated because the plaintiff “undeniably saw football games played by two NFL teams.”
The court also differentiated the claims asserted in In re Pacquiao from cases that had been allowed to go forward by season ticket holders of teams that had later relocated or gone out of business. In those circumstances, the fan had purchased tickets for games that were not played.
While In re Pacquiao involved boxing specifically, the implications go far beyond the ring. The Ninth Circuit legally confirmed what every fan knows implicitly: there are no guarantees in sports as to the quality of the competition — the fact that the competitions could result in blowouts or nail biters is what keeps fans watching.
A ticket or subscription is not a promise of a stellar performance or of the desired outcome, but rather a chance to witness something that might be amazing. By analogy, no cause of action is created when the referees blow a call or when National Basketball Association stars skip regular season games for “load management.”
Although an injured boxer’s or star’s skipping a team game is undoubtably disappointing for fans, the court’s holding is rooted in both legal precedent and common sense. If athletes were legally required to be in perfect health to compete, then combat sports and football might cease to exist.
In the event that a bout or a game were able to be played, it would likely have to be repeatedly rescheduled before the participants’ health aligned; constantly shifting schedules would likely cause even more lawsuits from anyone who purchased flights, hotels, etc. in anticipation of the postponed event. Moreover, mandatory disclosure of every muscle strain or sniffle could alter the competitive landscape and deprive fans of the thrilling moments when athletes overcome injuries to achieve victory.
As In re Pacquiao illustrates, sports fans have no right to a certain quality of performance, and those who set expectations for the outcome of sports do so at their own peril. Buying a ticket gives you the legal right to get into the arena, but the law can’t guarantee a game or match that leaves all fans satisfied.
About the Authors: Gregory M. Smith and Sam Fogas
Gregory M. Smith is a business trial attorney and Sam G. Fogas is a civil litigation attorney at The Maloney Firm, APC. If you have questions regarding this article, contact Gregory Smith at and
[1] Bowers v. Fédération Internationale de l’Automobile, 489 F.3d 316 (7th Cir. 2007). [2] Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2010).

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