Not a Brady fan, hope he falls on his face . He and Rodgers are publicity fans looking out for them selves.

The buyer's purpose isn't frustrated, he can pay for the ball and have it. His frustration is in not considering that Brady could return. Which he hasn't done yet. That won't happen, if at all, until this fall. I think the auction house will want to be paid before the season starts.

Peter, maybe you're blurring things. The buyer bid on this last touchdown ball expecting it to be the last touchdown. That won't be known for certainty for possibly yearsj. (Brady could get hurt in a preseason game, and he might not return to play until the 2023 season, or later!) NO event has occurred. It's just his fear of occurrence. Announcing a return doesn't devalue the ball. Neither does returning. A touchdown pass would. The auction house and the buyer don't have any contract about Brady not returning as a player, that's not implied. (I don't know that, I've not gone to the auction's site to read their terms and conditions... I just know I've never read anything in any of those terms that had anything about a player's return to the profession.)

As to #3, the buyer isn't at fault.

Now turn all of the around and you do the analysis for the seller. Is he at fault?


Goodnight Guys.

Goodnight, guys.

Goodnight, guys.

I am smiling at thinking of Dizzy Dean, who left the broadcast booth near the end of the 1947 season to pitch for the St. Louis Browns. He had been complaining about the team's lack of pitching on the air, saying he could do better. Dean suited up in 1947, years after retiring. He started the game, went 4 innings, pitched well, and he got a hit.

I think the buyer, by bidding, has won that lot and will need to pay soon... the auction house and the seller won't wait 6 months uless they all three do that in an effort to settle the mess. Buyer's gotta pay. This potentially would be a half mil case of buyer's remorse.

No, the seller is not at fault, but neither was the owner in the Coronation Cases. Plaintiff v defendant, someone wins, someone loses, the court isn't going to play King Solomon. Probably no mandatory mediation in England in those days haha.

As to your other point, the fact that the ball is probably now virtually worthless (seriously, what are the chances realistically Brady won't throw another TD, VERY slim) to me does show his purpose has been frustrated. I suppose I wouldn't be against holding the case in abeyance until that happens, if it would make anyone feel better.

As always, enjoy your perspective.

Let's face it, by the time a judge would be ruling on any contract claim surrounding this auction, it will be known one way or the other whether this was indeed the final touchdown pass of Brady's career. It if is not, then the buyer did not get what he bargained for, nor what was expressly represented in the auction. All parties, if answering truthfully, reasonably assumed Tom Brady was retired from the NFL and that he would not be credited with any future touchdowns in the NFL. There were no disclaimers that Tom Brady might return in the future and diminish the historical significance of the item. It is what makes the ball historic and why the ball went for over $500K. Now, maybe there were bidders that didn't bid because they thought Brady might return to the NFL, but I bet the buyer would declare under oath he believed, as Leland had represented, Tom Brady was permanently retired and that fact was material to his bid. And, it would be hard to rebut, because NOBODY who reasonably believed there was a likelihood that Brady would return would have bid $500K on that ball.

It boils down to this: Did all parties to the transaction believe what was being sold was the "historic" final touchdown football at the time the contract was formed? Yes. Is the football, in fact, the "historic" final touchdown football (assuming for the sake of argument he eventually throws another touchdown)? No. So, there was no meeting of the minds as to the what was being purchased, and no contract was formed.

I will use a recent example in the sportscard world: A guy spends $3.1 Million for an unopened case of Pokemon cards. The general public believes the case is authentic and unopened (though there were a few skeptics). The buyer, seller and auction house all enter into the contract believing the case is an unopened case of Pokemon cards. In fact, the case is later opened, and the box is now what all parties believed it to be, as it did not contain Pokemon cards, rather it was full of GI Joe cards. Thus, even though the box that was bid on was the exact box delivered to the buyer, it was not what the parties understood and represented it to be. The collecting public seemed to uniformly agree that the buyer did not get what was contracted for and was entitled to his money back. Yet here, though it is undisputed the buyer did not get what he bargained for, the jury seems pretty split on whether he should be stuck paying for something different then what he contracted for.

I too don’t really understand why so many people want to stick the buyer with this. Or how it’s somehow the buyer‘s fault for not doing enough due diligence on the status of Bradys state of mind. The seller is, after all, the one in this business. If it cannot deliver what is promised, even if through no fault of its own, I don’t see why the buyer has to pay for that. And it seems to me there are a couple of possible legal grounds for the buyer to avoid payment. I personally am more attracted to the frustration of purpose, but I could also argue it as others have posted as a formation issue. Either way, I don’t see why, again, people are so eager to stick the buyer.

My last point put another way. As between innocents It seems to me the loss should fall on the seller who is unable to deliver what was supposed to be the purchased item. And all technical wordsmithing aside, the seller cannot deliver the promised item.

Just for the hell of it, suppose the case went forward and the buyer admitted the price he was willing to pay reflected his assessment of and adjustment for the possibility that Brady would not stay retired. What then? Does that mean he actually did get what he bargained for? Does the fact that this was an auction where the bidders set the price make it different from the coronation cases?

Well that's different. LOL. If you're just talking about the value of the football, it is definitely greater if it does ends up being the football used for the last ever NFL TD he throws. But it will still have a significant value as a Brady thrown TD football, probably just not $500k worth. And if he does end up changing teams after un-retiring, you could still realistically say it is his last career TD thrown football as a Buccaneer.

I'm looking at this as a discussion of the contract law in place, and as to whether or not the auction winner has the ability to get out of paying for this football. Now that Brady has changed his mind about retiring, so that it now seems chances are he will throw another TD pass in his career, the perceived value dropped in the eyes of most people. At least temporarily till Brady's status as retired or not is finally settled. For all we know, this could be a calculated ploy on his part to get himself a better deal somewhere, doing who knows what, and he actually never intended to play anymore after all.

I believe this would be subject to state, not any federal law, and be based on laws in the state that Leland's is headquartered in and primarily operates out of. I'm also guessing that it stipulates which state's laws the auction is covered by in the auction rules/terms of use/whatever you want to call it that the auction winner had to affirm and agree to before they are allowed to bid in the auction. Now I did not go back and read Leland's auction rules/terms, but am pretty confident if I did that it will state something to the effect that by bidding in a Leland's auction you are entering into a binding contract to purchase an item once you are determined to be the winning bidder. The main question in this case then will be, when does the liability for changes in the circumstances of this football legally switch from the consigner to the buyer.

I honestly don't know the specific and exact state laws applicable in this instance, so can't say for sure if ownership and liability transfer in this case is deemed to take effect immediately when the auction ended and the high bidder was determined and declared. Or maybe the transfer doesn't take effect and is considered binding till the winner bidder is officially notified and invoiced. And then again, maybe the transfer doesn't take effect till the invoice is paid and the football is delivered to the auction winner. In any event, at the time of the auction, through its end, all of the statements and description of the football's status were true and accurate. And still are, technically and factually, until Brady actually throws another TD. Which there is no guarantee he ever will, just a great possibility if he goes through on un-retiring and plays some more after all.

I'm aware of the issues and questions brought up about the change of circumstances arising from Brady's latest announcement, but look more to when the ownership and liability transfer of the football takes effect under the applicable state laws to determine an answer. And without knowing if there is any specific rule or measure the applicable state's contract laws look at in a case like this, we're all just blindly guessing at this point. And for me, I'm guessing the end of the auction signals the commencement of the binding contract, and in the absence of fraud, deceit, or intentional withholding or misrepresentation of pertinent information regarding the property being sold, by the owner or their agent/representative, if I were on the jury for this case I'd vote that the auction winner had to pay up, they bought it.

What say you? :)

Interesting situation, as it is his last touchdown pass as of now. It also may prove to be his last touchdown pass.

One thing is athletes un-retire often: Brett Favre, Lance Armstrong, Michael Jordan, Roger Clemens, George Foreman, Ryne Sandburg, Mario Lemieux, Pele.

If Leland's had worded the auction differently they would be off the hook.

One rule of vintage card collecting: If a card as sold as unique, a second will be discovered.

I went to the (first) Kiss farewell tour in 2000. I know the year as I still have the T-shirt. By my estimation I've seen four more farewell tours since then. The last one was in Chula Vista (San Diego) in September of 2021.

:D
After wading through the legal discussions, this is the best quote on here. I spewed my drink reading this.

How many people have retired from "normal jobs" and find the transition hard? I retired about a year ago, and my wife sure seems to be around a lot more.

Great analysis, but there's one major difference/flaw I see in comparing this to the Pokemon card example. It turned out that at no time was the case of G.i. Joe cards ever what it was advertised to be, a case of Pokemon cards. In regards to the Brady TD football though, up till and through the end of the auction, it was exactly what it was advertised and believed to be, by all parties involved. And to me, that is an absolutely huge difference. And as I'd said in an earlier post, that to me makes this a simple question, as of when is it determined by the applicable court that the ownership and liability for the football transfers from the seller to the auction winner?

Think about this, what if Brady did retire........for one year, and then came back to play and throw more touchdowns. By then the auction winner would have paid for this supposed last career TD football, and had then owned it for over a year. Now the value would severely drop again, just as it supposedly did when Brady announced he was un-retiring this past week. And once again, the auction description would turn out not to be right. So now are we saying the auction winner could still go back and sue to have the auction overturned and get their $500K back, even though it is over a year the auction winner has owned it? I would certainly and sincerely think and hope not.

So to me, this leads right back to the only question that begs to be answered and actually matters in this entire case. When does the state that has jurisdiction over this auction sale officially recognize the transfer of ownership, and the liability of such ownership, for this football? Get the answer to that question and then you'll know who should win if this case ever does end up going to court.

One thing for consideration. At the time of the sale, both the seller and the buyer thought it was the last touchdown pass. Possibly every bidder and watcher thought it was. And it is not a case where the seller lied or hid information. Both the seller and the buyer (and all the bidders) had the same information.

Sellers should be expected to use critical thinking and logic. However, one thing sellers should be expected to be be able to perfectly predict the future.

It's also worth noting that Tom Brady did announce his retirement on February 1.

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This ball may reach the infamy level of the Banksy painting that started shredding the moment the winning bid was announced.

The winner of that painting decided to keep it and now it's worth far more than it was at the time of the auction because of the story.

The big word thrown around in every auction, and oft mocked here, is "extant". Which means surviving or still in existence. If someone represents that this is the highest graded copy extant, or the oldest signed contract extant, and a better one one if discovered tomorrow, have they made a misrepresentation? I don't think so. Not fraud, and I don't even seeing it possibly constitute negligence.

Assuming he throws another TD, the copy was false when it was written. It's just that no one knew that at the time. (It didn't say "last TD pass so far".)

Focusing on questions of "fraud" or "negligence" are misplaced. Those are typically used in the context of a tort. Contracts is a completely different animal and treated differently. You can have two parties acting reasonably, competently and honestly and the result can be that no contract was formed.

So, it comes down to what were the parties contracting for? Leland will argue that the contract was for a football. It described the football with enough specificity for all parties to know what it was and where it came from. Any subsequent facts that could impact the value of that football are irrelevant, as they simply have to deliver the football pictured and described in their listing. The argument will continue that the bidder knew exactly what he was bidding on, and will get exactly what he bid on. What he underestimated was the possibility that a subsequent event could diminish the value of his purchase, but that is a common risk of buying a collectable.

The auction buyer will argue that it was not just buying the football described in the auction. It was buying the express representation of the seller that the item it was buying was the "historic final touchdown of Tom Brady's career." Leland said it was the "last ball," and the price reflected it was the "last ball." Now, circumstances prevent the "last ball," as represented, from being delivered. Thus, what was specifically agreed to does not exist and no contract exists.

On this board, there definitely seems to be a split. My sense is a judge will side with the buyer. For the AH to prevail, the judge would need to accept that it was reasonable for the parties to anticipate a reasonable likelihood a 45 year old retired football player would un-retire and return to the NFL. While there have been instances of players who retired fairly young and returned to various professional leagues, the number of 45 year-old athletes who have retired and come back to the NFL as a player prior to March 10, 2022 might very well be zero. Based on this fact, was it reasonable for the contracting parties to operate with the understanding Tom Brady was and would remain retired? I believe a judge would say yes. If that was the operating belief of all parties and that belief was the underlying basis for their agreement, and that belief was ultimately wrong, then I don't think there was an enforceable agreement entered into between the parties.

I guess that's the drawback of being a tort lawyer for 35 years. Also explains my B- in Contracts as a 1L.

Funny timing on this whole mess. Just a coincidence, I suppose.

An n of 1, but the judge on the Board sided with the seller.

The only winner in all of this is the 1st underbidder.

The reason why many high profile contract claims become tort claims of course is that aggrieved parties frequently want to add a threat of punitive damages, which are ordinarily not recoverable in a contract case.

Bob, I have a friend with a true variation of your story. He had been married over 60 years. When asked about his secret he said:

"On our 30th wedding anniversary we celebrated in Hawaii. On our 60th wedding anniversary I returned to Hawaii to pick her up."

A judge, or a jury? I would think this more likely would end up a jury trial. In which case, talking to and trying to convince a panel of jurors your position is correct would be much different than trying to sway the opinion of a single judge who is thinking much more about all the legal nuances and specific laws than a juror ever would. Were I the seller/AH, if the question came up about the description and how the AH should have mentioned the possibility of Brady un-retiring, I wouldn't hesitate to look the jury in the eye and ask if any of them didn't whole-heartedly also believe he had retired for good as well, when he made his retirement announcement.

Also, the third sentence of your fourth paragraph, didn't you mean to say a judge would have to find it "unreasonable", not "reasonable", to expect a 45-year-old quarterback to suddenly un-retire if the AH/seller were to have a chance to prevail? That way it isn't as easy to argue the AH description was misleading and inaccurate, and therefore the buyer should be let off the hook for completing the transaction they entered into, via what I'm guessing will otherwise be considered a binding contract under applicable state laws.

Once again, I think the issue would ultimately come down to when, under the applicable state laws, is the auction/sale to be considered finalized and binding/enforceable under the contract terms, and the liability and risk of the football pass to the auction winner.

Also, go back to paragraph two of my Post #112, and tell me if you still think a judge would side with the buyer and allow them to get their money back in that particular case. Based on what you're saying above, you seem to feel it doesn't matter when the change in the historical significance of the football occurs. Just that if it eventually occurs the original auction description is now wrong, and therefore the auction winner should be entitled to back out of the deal.

LOL

That's another good one Frank. :D

Don't forget the attorneys! :D

Peter,

What does that mean, "An n of 1"?

Also, what judge are talking about?

It means it's not a statistically significant sample, just one example.

The one I called Judge Frank in my post of course, Fank Wakefield.

Thank you sir, did not know of the sample reference, nor you thinking of Frank as a judge. LOL

An N of 1 trial is a clinical trial in which a single patient is the entire trial, a single case study. Frank was if memory serves a trial court judge in Kentucky for nearly two decades.

Thank you the clarification, and did not know that about Frank. Also makes me feel good to know I had the same initial impression of the outcome of this potential case as he had, in siding with the seller.

the Next Great Soap Opera is just beginning and stay tuned for the next episode of As Brady's Ball Turns

Schrödinger’s Pig(skin)
It is at the same time Tom Brady's last touchdown ball and NOT his last touchdown ball.

The bidders do set the price but would the fact that their bids are relying on information provided not just by the seller but also the surrounding circumstances have an impact? Might help or hurt because the ball was offered very fresh off of a retirement announcement that leaked and was denied before an "official" announcement was made.

Given how much Brady loves the game and the fact that he said it was a family decision, etc I really think the bidders on this one may have overplayed their hands. In a time in our industry where money seems to be endless, there are lots of guys who might not be as prudent as they should be in order to make sure they are the one to win the item.

There is a binding contract between the buyer and seller. the fact that an event happend "after" the contract was entered into does not change the terms. Buyer has to pay. If he backs out, I would sue him for the amount he agreed upon.
But I practice criminal defense and not this stuff so what do I know?

Here's another question.
What if the role was reversed? What if Brady had announced his retirement the next day? The value of the ball would increase. Should the buyer have to then pay more to the auction house?

Exactly! I've been saying all along this would likely be decided based on whatever state's laws cover this case, and in accordance with Leland's auction terms the buyer agreed to, as to when that state recognizes an enforceable agreement has been entered into between the buyer and seller/AH, and the ownership and liability associated with the football would pass from the seller to the auction winner. And I'm guessing it is when the auction ends and the winning bidder is determined.

If the auction house wrote in the description that unfortunately the ball was just one of many in a long line of TD balls that will surely follow, the seller would have a right to be pissed if Brady ended up retiring. This is the reverse where the buyer has a right to be pissed that the auction house said it was selling the last TD ball of the guy’s career. That proclamation just seemed unnecessary. I bet they wrote it when there was zero inclination he would come back.

Auction house literally promised the bidder would get the guy’s last TD ball. It is unable to deliver the goods promised. My view.

If the buyer purchased “Brady’s final TD ball” and another ball becomes that final TD ball, hadn’t the buyer simply prepaid for the purchase of whatever ball becomes the final one, or is he tied to this specific ball? Which rules, the item or the description of the item?

Here’s another angle - if I buy a 3000th hit ball, and Elias credits the player with a previously unknown hit, do I now have 3001?

I hate to tell you this, but you're wrong. As of this moment, that is the last football Brady has thrown for a TD in his career. And there is no guarantee he won't turn around and re-retire next week, or come back and get injured on the first offensive play of the first game back and never be able to play again, or get hit by the proverbial pie truck and be killed on his way to the stadium. That may be your view, but the courts cannot decide things based on contingencies like this.

So what happens if they go to court and the auction winner prevails and gets out of paying for the football, and then the very next day Brady re-retires, and this time it is permanent. Are you suggesting the seller can now countersue and force the auction winner to buy the football for their winning auction bid after all? Do you see the problem with your logic here?

I'm still on the bidder's side (for now), but I think an argument could be made as I tried to do last night that the bidder got what he bargained for -- the football at a risk-adjusted price reflecting his assessment of the chances Brady would return and throw another td. To continue the line of thought, playing devil's advocate against myself, surely someone spending that kind of money has at least rudimentary knowledge of who Brady is and what his circumstances are. So his bid was made with knowledge of, and reflected his assessment of, the risk that the stature of the ball would not hold up. The bidder ended up being wrong -- the long-shot came in almost immediately -- but tough luck. :)

Buyer can refuse to pay and by the time it reaches the courts it will no longer be Brady’s last TD ball as was promised. If you think he’s not going to throw another TD, you’re probably wrong. As a Bills fan I can assure you the man can throw TDs.

Also, relax on the you’re wrong proclamations. As a head banging attorney I can tell you that’s there really good arguments on both sides here. It’s about choosing which one you think is right and making the best argument you can for it. The outcome here is far from certain despite your thinking it is.

unfamiliar with that particular proverb!

auction sells a ticket stub from feller’s opening day no hitter. correctly markets that no-hitter as the ONLY one to happen on opening day. days after the auction ends, a no-hitter gets thrown on opening day. that sale gets voided too?

No because in that context the clear import is only that it's the only one that has happened SO FAR; there is no implication there will never be another one. Leland's arguably went further, but I say arguably because one could also argue they didn't.

but the buyer is not receiving what he paid for, which is an argument i have read often about the brady ball.

Sure he is. He bid for the only opening day no hitter ticket TO DATE. And that's what he got. I mean ticket to the only opening day no hitter.

deleted

It was 100% accurate when written. And it's 100% true today.

Your view is wrong.

They did not make that promise. Literally or otherwise.

They are actually able to deliver the exact goods offered.