Arbogast v. Chi. Cubs Baseball Club, LLC

• Citation: 2021 IL App (1st) 210526,194 N.E.3d 534,457 Ill.Dec. 45
• Decision Date: 16 November 2021
• Docket Number: 1-21-0526
• Parties: Charles ARBOGAST, Plaintiff-Appellee, v. CHICAGO CUBS BASEBALL CLUB, LLC; Chicago National League Ball Club, Inc.; and Chicago Cubs, Inc., Defendants (Chicago Cubs Baseball Club, LLC, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 210526

194 N.E.3d 534

457 Ill.Dec. 45

Charles ARBOGAST, Plaintiff-Appellee,

v. CHICAGO CUBS BASEBALL CLUB, LLC; Chicago National League Ball Club, Inc.; and Chicago Cubs, Inc., Defendants(Chicago Cubs Baseball Club, LLC, Defendant-Appellant).

No. 1-21-0526

Appellate Court of Illinois, First District, SECOND DIVISION.

Opinion Filed November 16, 2021

Robert M. Burke, David M. Macksey, and Carlos A. Vera, of Johnson & Bell, Ltd., of Chicago, for appellant.

Timothy S. Tomasik, Patrick Giese, and Philip P. Terrazzino, of Tomasik Kotin Kasserman LLC, and Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, P.C., both of Chicago, for appellee.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 In this interlocutory appeal, the defendant, Chicago Cubs Baseball Club, LLC (Cubs), challenges the trial court's order denying a motion to dismiss this action for personal injury brought by the plaintiff, Charles Arbogast, on the grounds that the claim must be submitted to arbitration. For the following reasons, we affirm the trial court's denial of the motion to dismiss.

¶ 2 I. BACKGROUND

¶ 3 The plaintiff's complaint alleges that on July 26, 2018, he was working as a photographer in a designated photo well at Wrigley Field, when he tripped or fell on a stack of pallets that photographers would stand on to take photographs of baseball games. His complaint alleged that the stack of pallets caused a hazardous condition for those on the premises and that each of the defendants knew or should have known of this. He alleged that each of the defendants was negligent in permitting this hazardous condition to exist, failing to warn of it, failing to construct a safe platform for the photographers to stand on, or failing to create a safe walking surface.

¶ 4 The Cubs filed a motion to dismiss the complaint pursuant to section 2-619(a)(1) of the Code of Civil Procedure (Code). 735 ILCS 5/2-619(a)(1) (West 2020). That motion sought dismissal of the complaint on the basis that a valid and enforceable arbitration agreement existed between the plaintiff and the Cubs that required this case to resolved through binding arbitration in New York.

¶ 5 The Cubs’ motion was supported by the affidavit of Alex Wilcox, who had served as their coordinator of media relations since 2017 and supervisor of media relations since 2018. Wilcox's affidavit asserted the following facts. The plaintiff is a professional photojournalist and staff photographer for the Associated Press, who on information and belief had worked in that capacity for at least 10 years. Each baseball season since at least 2010, the plaintiff had obtained media credentials that gave him access to Major League Baseball events, including Cubs games at Wrigley Field, and a license to take photographs at those events. To gain admittance to Wrigley Field and take photographs, the plaintiff was required to wear and display a media credential. The plaintiff's name and photograph were on the front of the credential. The back of it, an exemplar of which was attached to Wilcox's affidavit, contained text that stated as follows:

"CONDITIONS

Bearer is hereby granted admission to 2018 Major League Baseball regular season games, workouts, activities and events (the ‘Games’) on the following conditions, which are accepted and agreed upon by Bearer.

1. The Major League Clubs are the exclusive owners of all proprietary rights in their names, logos and uniform designs, and in Games and Game Information, except for Bearer's Game Information created pursuant to this credential.

2. Bearer assumes all risks incidental to the performance of his/her services and/or incidental to Games, including the risk of being injured by thrown bats, bat fragments and thrown or batted balls.

3. THIS CREDENTIAL MAY BE REVOKED AT ANY TIME WITHOUT CAUSE.

4. While within the ballpark, Bearer shall be subject to the direction and/or supervision of the Club and its designated agents.

5. Bearer acknowledges receipt and review of, and agrees to be bound by, the further terms and conditions contained on the website of the Office of the Commissioner of Baseball at MLBPressbox.com.

MEDIA INFORMATION

Media may access game information, including rosters, game notes and statistics, at CubsPressbox.com. Please contact a member of the Cubs Media Relations Department with any questions."

¶ 6 Wilcox's affidavit went on to assert that the terms and conditions referenced on the back of the credential were available to the plaintiff online by accessing the MLBPressbox.com website. A printed copy of the terms and conditions that had been available on that website for the 2018 baseball season was attached to Wilcox's affidavit. Those terms and conditions were six pages in length and, relevant to this appeal, they provided in pertinent part as follows:

"THESE TERMS AND CONDITIONS ARE APPLICABLE TO (A) BEARERS OF CREDENTIALS MARKED MEDIA, TECH, PHOTO, PHOTOGRAPHER, EVENT BROADCAST, MLB NETWORK OR RIGHTSHOLDER (COLLECTIVELY, ‘MEDIA BEARERS’) *** ((A), (B) and (C) ARE EACH A ‘BEARER’ AND, COLLECTIVELY, THE ‘BEARERS’).

IMPORTANT: BEARER'S CREDENTIAL OR ACCESS BADGE (COLLECTIVELY, ‘CREDENTIAL’) IS A REVOCABLE LICENSE AND MAY BE REVOKED AT ANY TIME WITHOUT CAUSE.

Each Bearer signing for or using a Credential, including his/her/its employers and employees, for games, workouts, activities, attractions and events associated with Major League Baseball (each an ‘Event’ and, collectively, the ‘Events’) agrees *** to the following terms and conditions (the ‘Agreement’) ***.

* * *

22. FOR MEDIA BEARERS AND ACCESS BADGE BEARERS ONLY: Unless prohibited by federal law, Bearer and the MLB Entities agree to arbitrate any and all Claims, except for Claims concerning the validity, scope or enforceability of this MANDATORY ARBITRATION AGREEMENT & CLASS ACTION WAIVER (the ‘Arbitration Agreement’), through BINDING INDIVIDUAL ARBITRATION. This Arbitration Agreement involves interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 - 16 (‘FAA’), and not by state law. *** The arbitration shall take place in New York, New York. *** BEARER HAS THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT, BUT BEARER MUST EXERCISE THIS RIGHT PROMPTLY. If Bearer does not wish to be bound by this Arbitration Agreement, Bearer must notify the MLB Entities by mailing a written opt-out notice, postmarked within seven (7) days after the date of the applicable Event to: Major League Baseball, Attn: Legal Department, 30th Floor, Re: Arbitration Opt-Out, 245 Park Avenue, New York, NY 10167. The request must include Bearer's full name, address, account number, and the statement ‘I reject the Arbitration Agreement contained in my Credential.’ "

¶ 7 Finally, Wilcox's affidavit asserted that, for the plaintiff to have received a media credential, a representative from the Associated Press was required to complete an online application on behalf of the plaintiff and other staff photographers who would be taking photographs at baseball games. The purpose of requiring this was to verify that each applicant was an authorized representative or photographer for the media company identified in the application. On March 23, 2018, an Associated Press representative named Michael Green applied for the credential that was issued to the plaintiff for the 2018 baseball season. When completing that application, Green was required to click an acknowledgement stating, "I've read and agree to the Terms and Conditions." (No copy of this application was attached to Wilcox's affidavit.) On the day at issue, the plaintiff used his credential to access the area of Wrigley Field where his injury allegedly occurred, and he was allowed to access this area only because he was a staff photographer displaying the credential.

¶ 8 In their motion to dismiss, the Cubs argued that a contract was formed when the plaintiff used the media credential that had been obtained on his behalf by the Associated Press to access Wrigley Field and photograph Cubs games. The Cubs asserted that the credential plainly stated that the bearer agreed to be bound by the further terms and conditions on the MLBPressbox.com website, and those terms and conditions included an agreement to arbitrate disputes. Thus, the club argued, because an arbitration agreement clearly existed and encompassed the plaintiff's claims, the complaint must be dismissed and the claims proceed through arbitration.

¶ 9 The plaintiff filed a response to the motion to dismiss, which was supported by his own affidavit. He asserted that the Cubs had produced no evidence of any contract existing between the Cubs and him, let alone one that included an agreement to arbitrate disputes. The plaintiff argued that he had never given Green or anyone else at the Associated Press permission to agree to an arbitration provision on his behalf and that a non-signatory to a contract could not be bound to an arbitration clause he or she has not agreed to.

¶ 10 Alternatively, citing this court's decision in Zuniga v. Major League Baseball , 2021 IL App (1st) 201264, ––– Ill.Dec. ––––, ––– N.E.3d ––––, the plaintiff argued that even if a contract had been formed in the manner as argued by the Cubs, the arbitration provision was unenforceable under the doctrine of procedural unconscionability. In support of this argument, the plaintiff pointed out that his credential mentioned nothing about arbitration or the ability to opt out of it and that the website address on the back of his credential was set forth in regular type unhighlighted in any way. The plaintiff also pointed out that accessing the MLBPressbox.com website did not take a user directly to the arbitration provision. Instead, that address was to a webpage with various hyperlinks on a variety of topics. A user had to locate and click a hyperlink titled "Credential Terms & Conditions," at which point the user was taken to yet another webpage consisting of 25 paragraphs of terms and...