nitially, we consider how tickets to sporting and other entertainment events have been treated in the past. As the District Court recognized, New Jersey has generally followed a so-called “license” approach.1 In Shubert v. Nixon Amusement Co., 83 A. 369 (N.J.Sup.Ct.1912), the old New Jersey Supreme Court considered a tort action filed by a plaintiff who, together with his friends, was ejected from a theater even though they had already taken their seats,2 id. at 369. In considering this action, the court turned to prior case law, especially the Court of Exchequer's leading decision in Wood v. Leadbitter, (1845) 153 Eng. Rep. 351 (Exch.). Relying, inter alia, on this English decision, the Shubert court repeatedly indicated that a ticket provides a patron with nothing more than a revocable license. Shubert, 83 A. at 369-71. For instance, it quoted, with approval, the Pennsylvania Supreme Court's finding “that ‘a theater ticket is to be regarded as a mere license, for the revocation of which before the holder has actually been given his seat, and has taken it, the only remedy is in assumpsit for a breach of contract.’ “ Id. at 370 (quoting Horney v. Nixon, 61 A. 1088, 1090 (Pa.1905)). While referring in passing to the “natural justice or injustice” of the defendant's actions, the New Jersey Supreme Court ultimately ruled that the well-established “license” rule barred the plaintiff's tort action even though he had already taken his seat in the theater before being asked to leave. Id. at 371.
It appears that this “license” approach has, for some time, been followed throughout the United States and in other common law jurisdictions throughout the world. For example, the United States Supreme Court, in a decision written by Justice Holmes considering the exclusion from a race track of a ticket-holder suspected of drugging a horse, cited with approval both Leadbitter as well as Shubert itself. Marrone v. Wash. Jockey Club of D.C., 227 U .S. 633, 635 (1913). In turn, the current New Jersey Supreme Court adopted the “license” rule in another case dealing with the exclusion and expulsion of a ticket-holding patron from a race track. In Garifine v. Monmouth Park Jockey Club, 148 A.2d 1 (N.J.1959), the race track excluded and expelled a patron, who had been charged but acquitted of being a bookmaker, as an undesirable, id. at 2. The plaintiff argued, inter alia, “that notwithstanding the holding of the former Supreme Court in [Shubert ], the operator of a licensed race track should not have the common-law right to exclude or expel a patron without reasonable cause.” Id. After a thorough discussion, including summaries of both Leadbitter and Shubert, New Jersey's highest court rejected this attack on the “common-law right of race track operators to exclude suspected undesirables.” Id. at 6. It noted, inter alia, that the plaintiff's complaint “does not question the defendant's good faith or sound purposes nor does it present any countervailing circumstances or any urgent considerations of justice or policy” indicating the need to depart from the general rule. Id.
Although it did not use the specific term “license,” the ticket stub provided by the Patriots nevertheless appears consistent with this traditional approach. For example, it unambiguously stated that “[t]his ticket only grants entry into the stadium and a spectator seat for the specified NFL game.” (SA4.) The stub further made clear that the Jets and the owners of the stadium retain sole discretion to refuse admission or to eject a ticket-holder. Admittedly, the Shubert court in particular made repeated references to the existence of a claim for breach of contract. See Shubert, 83 A. at 369-71. However, it appears that the court was only referring to the patron's right to obtain a refund of the ticket price (and related expenses) because the venue exercised its right to deny entry or expel the patron.3 Given that Mayer was never barred or expelled from any game at Giants Stadium, much more is needed to establish a cognizable right, interest, or injury than these kinds of inapposite statements.
