Would you follow through and pay? Brady's last TD
 

Incredible timing. He unretires literally the next day lol or not so lol.

https://auction.lelands.com/bids/bidplace?itemid=108647

I mean wow. Went from a $520k ball to what? 40k?

Not as bad as buying the McGwire HR ball, but . . . :D

Technically mis-advertising I guess.
Sucks for the AH and seller.
Of course whoever bought may have so much $ it doesn’t matter. Maybe not.

No, unless you can trade up for his real last TD ball...

That's wild. The title of the listing is technically still valid until Brady throws another touchdown pass, but what an unfortunate turn of events for the buyer, consigner and auction house.

I'd want to know whether or not it was deflated.

This is one of those times that you gotta say to the auction house, "Sometimes, I'm just not gonna pay" :D

You can pay or spend attorney’s fees when you get sued and then pay. Sounds like either way the buyer is screwed.

Timing is terrible. However, buyer would face a breach of contract lawsuit if he/she doesn’t pay.

I wonder if, out of the goodness of their heart, Leland’s waives the buyers commission.

My first reaction would be to consider the doctrine of impossibility/frustration of performance/purpose == Leland's cannot now deliver the item as represented due to changed circumstances. I'd have to think about it more and research. There are classic cases called the coronation cases -- people rented hotel rooms on the assumption a coronation would be on a certain date, but then the date changed. Or some similar fact pattern. Vague memory from first year contracts. Can't remember which way they came out.

It's not really impossible; they can deliver the item. More like force majeur. The value of the item was destroyed by events beyond anyone's control or consideration.

Doubt it. False advertising! “the final touchdown ball of Tom Brady’s career”. I would not pay and take my chances.

Frustration of performance/purpose then. Force majeure feels not quite right but similar notion. Do you remember the coronation cases from law school? I have to refresh my memory.

Fairness would seem to dictate the buyer shouldn't have to pay, and there is usually a way under the law to advocate for a fair result.

Technically it is what the title says it is, and will be for the next 6 months.

Buyer has to pay

No, it's now his latest/most recent TD, not final in the sense anyone would understand the word as it's being used in this context. The buyer is not getting what he bargained for.

Yep. This is at least the right framework.

Closely related to impossibility, frustration of purpose applies when a change in circumstances makes one
party’s contract performance worthless to the other party. See Restatement (Second) of Contracts § 265.

The defense commonly contains three elements:
1. the party’s principal purpose in making the contract is frustrated;
2. an event occurred whose non-occurrence was a basic assumption underlying the contract; and,
3. the party invoking the defense was not at fault.

The validity of the defense often turns on the first element. The principal purpose of a contract must be
something which is so completely the basis of the contract that, without it, the transaction between the
parties would make little sense. Thus, while impossibility is primarily concerned with “the nature of the
event and its effect upon performance,” frustration is concerned with “the impact of the event upon the
failure of consideration.”

The famous “Coronation Cases” provide a royal example of frustrated purpose. In Henry v. Krell, a British
court excused a defendant from his promise to pay fifty pounds to watch the coronation parade of King
Edward VII from the plaintiff’s flat when the coronation was abruptly cancelled due to the King’s health.
Krell demonstrates that frustration is not substantial when the disadvantaged party merely stands to gain
less than the bargained-for performance. Rather, the frustration must be so total, and caused by an event
so wildly unpredictable and outside the scope of either party’s reasonable expectations, that it would be
unfair to enforce the terms of the contract. The Second Circuit, for example, limits the doctrine to “virtually
cataclysmic, wholly unforeseeable events.”

Lelands will cancel the sale and get a shit ton of free positive publicity.

The written description says it’s Brady’s final career touchdown. This is currently a true statement. Brady could change his mind before the season starts and re-retire. Maybe a bus hits Brady while he is crossing the street. The description was accurate based on all available information, and it technically still is Brady final career TD.

Remember when Jim Palmer was coming out of retirement (as a HoF) until he decided to stay retired? The buyer also assumed the risk that Brady would stay retired. The buyer is not an innocent rube in the woods. There was always a chance Brady came back. Heck, maybe this exact risk is why the ball went for $500k and not $750k or $1M.

A person with $500k to spend on a football is likely an educated and sophisticated buyer. He/she got exactly what he/she bargained for and knew the risks - that Brady could un-retire - going into the auction. Assumption of the risk.

The defense points to Exhibit A, first sentence of description: "If there is any item in the field of sports collectibles that needs no embellishment, it is this historic piece: the final touchdown ball of Tom Brady’s career."

Though represented as fact that the ball was the final touchdown of Tom Brady's career, his final touchdown in fact occurred in 2023. As such, whether intentional or innocent, the factual representation is false. This representation was material to the contract, as the plaintiff notes the football is a "historic piece" requiring no embellishment, because it was represented to be the final touchdown ball of Tom Brady's career. Moreover, whether known or unknown to the parties at the time of the auction, Tom Brady had, in fact, been in negotiations with the Tampa Bay Buccaneers to extend his career prior to the conclusion of the auction. As such, a material ambiguity concerning the consideration for defendant's promise to pay precludes a meeting of the minds as to what was being purchased, and an enforceable contract was not forged between the parties.

I would liken this to a Honus Wagner card that sells at auction for $2 million and is later deemed to be fake by a third party authenticator. At the time of the sale, the auction house and the buyer (and perhaps the seller) all believed the card was an original. The contract was premised on the card being an original, authentic Honus Wagner card. In fact, and unknown to all parties, the Honus Wagner card was not what the parties had bargained for. So, the buyer would be entitled to void the contract, even though the card that was listed could technically be provided to the buyer.

Common sense will likely rule the day on this one.

The issue in my mind doesn't depend on Leland's being inaccurate or at fault. The notion of frustration of purpose is a fairness doctrine based on changed circumstances beyond either party's control. I don't think assumption of risk is a contract concept so much as a tort concept, but it's been a while. Anyhow, your argument is of course the one I would make if on Leland's side, and it's a great problem that would fit well someday in a law school class.

I see this as a frustration of purpose case, not a misrepresentation case or meeting of the minds case. The problem here is something that happened AFTER formation. The issue is whether performance is now excused.

I think so too. From my experiences with them, they will do the right thing.

Do you think the buyer had a multi-year window to file suit for a contract breach? Most states have around a four year statute of limitations. So, if Brady hypothetically stays retired, and then elects to come back three years from now, could the buyer still file suit for breach of contract, because it seller didn’t deliver Brady’s final career TD ball?

This fact pattern makes for a great one L issue spotter exam.

Agree. Throw in some subsequent sales too.

Maybe not so unfortunate for the consigner, he/she's kind of in the catbird seat. As someone else mentioned, the auction winner technically entered into a binding contract to buy the football, and that ain't chump change, so they are obviously well off and don't really have any excuse to not pay. What could prove interesting is if the buyer is a big Leland's customer, and asks them to let him/her off the hook for the purchase. In this case, Leland's is working for the consigner, and is bound to try to collect the money for them. If Leland's doesn't want to lose this customer over this, they may be screwed, because I would think that if they decided to not go after the auction winner, the consigner may be able to come after them (Leeland's) instead of the auction winner. Guess it may come down to exactly what it says in the fine print of Leland's contracts/terms of agreement with both the consigner and auction winner. Who knows, Leland's may have contemplated something like this happening one day, and so they have language in their contracts/terms of agreement that can get them out of the middle of this. This should be interesting.

If he pays and later tries to rescind if Brady comes back years later, my initial thought is yeah as long as it's within the statute. Is there some separate source of repose here? Not sure.

If the auction is canceled, which I think it should be, I do feel sorry for the guy who caught the ball and was scheduled to have a nice payday. What a roller coaster for him as well.

Never know, any buyer who can afford this may just want to keep the ball anyhow...

Assuming Tom Brady does throw another touchdown in the NFL, is the statement that the football is the "last touchdown of Tom Brady's career" true of false? It is false. Maybe not intentionally, but it is false. Had Leland not made that written claim in the listing, and simply said the football was "the last touchdown of the 2022 season before Tom Brady announced his retirement," then everything Leland said would have been factual and uncontradicted. But, in this case, Leland affirmatively stated it was the last touchdown of Tom Brady's career. Was the statement material to the sale? Clearly. So, if the entire contract is premised on this football being the last touchdown pass of Brady's career, and Leland represented it as such in the listing, the fact that it is not the last touchdown of Tom Brady's career precludes Leland from delivering the exact consideration represented.

A good lawyer for Leland would have put an asterisk after "career" and included a note at the bottom to the effect of: "Leland does not control nor make any claim as to the possibility that Tom Brady may some day return to play in the NFL and the representations in this listing are limited to past events and Tom Brady's representation at the conclusion of the 2021-2022 season that he has retired from the NFL. Any bidder on this item acknowledges and agrees that any future action by Tom Brady, including but not limited to returning to the NFL, will not void or alter the obligation to pay for this item."

It's a weird case because the statement was true when made and when the buyer agreed to pay and the contract was formed. It becomes false by virtue of a later event. Is that a misrepresentation, or a changed circumstance excusing performance? I understand your point of course, it just feels like the latter to me. The contract was valid and enforceable at formation.

You are also pre-supposing there will be another Brady touchdown. But 2 months from now, he might change his mind and re-retire, or worse, he could get injured and not be able to play again.

When you are saying the "last touchdown" is no longer a true statement regarding that football, you are essentially making a guess regarding future events.

I mean, conceivably, Barry Bonds could pull a Minnie Minoso, come back to play one more ML game, and hit another home run. So, the state of Bond's final home run ball isn't fully secure until Barry passes away.

Fair enough, but based on the very low probability that he won’t throw another TD, the ball is essentially worthless right now. Most cases are not decided on hyper technicalities or theoretical possibilities.

I see where you are coming from, but the statement was not ACTUALLY true at the time it was made, it was just not known to be false by any of the parties at the time it was made. The parties believed it would be the last touchdown at the time the contract was formed, but we now know all parties were unaware that the entire foundation for their agreement was based on a faulty premise. And, depending on the timing of Tom Brady's agreement to return, it is entirely possible that Tom Brady was not even legally retired at the closing of the auction, so even that material fact might have been false.

I think frustration of purpose could also work, but I think the easier path for the buyer's lawyer is to just use Leland's affirmative statements against it to void the contract.

That’s a good point On the timing.Indeed, I think your reasoning would also support mutual mistake. So will make all the arguments and prevail lol.

In the Barry Bonds example, I think the statute of limitations would preclude any contract claim at this point. But, I do think when it comes to auction house claims involving the "last game" or "last" anything related to a living player, going forward you will likely see a disclaimer that the statements are based on information available at the time of sale and an express statement that the representations contained in the listing can be contradicted by future events.

All due respect, I don't think your Wagner card example is the same thing as what is going on here. Now if it was later found that the football turned out to NOT be the actual football Brady threw for that last TD, then I think your point has some merit.

I know we have lawyers on here who are weighing in, but they are just speculating as well. Think of it this way, under whatever state's law is applicable, when is the actual transaction considered binding? I'm assuming it is when the bid is made, accepted, and the auction officially ended. Now there may be some wording in the contracts/terms of agreement that stipulate that the transaction isn't finalized and binding on both sides tlll the payment is made, and the item is received by the buyer, or maybe something else. But I really don't think that will end up being the case.

And what would be the result if things were reversed? Assume Brady hadn't announced his retirement yet, and was fully expected to play at least one more season, and throw many more touchdowns. The football was auctioned off and won by someone thinking they had just won a Brady thrown TD football. But then the day after the auction ended and the winner was announced, but before they paid the money to Leland's, Brady shocks everyone and suddenly retires, now making that the football Brady threw for his last career TD. So the consigner immediately calls Leland's and tells them to cancel the auction and pull the football. So now what happens?

And remember, this isn't like Ebay that merely offers the platform for buyers and sellers to get together. Leland's was specifically hired by, and working for, the consigner, not the buyer/auction winner. I would think they are obligated to look out for the consigner's best interests, and fulfill their contract with them.

Quite frankly, if Leland's decides to just cancel the auction and let the auction winner off the hook for some good publicity or whatever reason, they would immediately, and permanently, be removed from my consigning anything to them, ever!

OKay then what about this
 

How is this different (of course it is somewhat) than an auction that sells something as "Unique" and then another one shows up right after the auction.... or top grade at PSA only to have another one grade higher right after the auction. Seems like your classic slippery slope to me.....

With no comment on the legal question about whether or not the buyer could be forced to buy the ball, isn't that the risk you run with something like this? There was already talk of Brady waiting for Tampa to sign or trade for another QB, then play somewhere else. And quite a few others have retired and came back, although probably not this quickly.

The timing was obvious unfortunate but I'd assume anyone bidding realized there was a strong possibility this wouldn't be Brady's last ever TD ball.

Maybe Tom un-retired so that, down the road, he could buy this football at a much lower price.

Brian

Nope. And zero chance the buyer loses in court.

In property law this is called condition subsequent. At the time of the sale the facts presented were correct. There was no false advertising as several have INCORRECTLY stated. It is an issue that arose subsequent to the transaction or presentation that changed the facts and thus how it moves forward.

The timing seems almost as if he knew about the ball and the auction. Despite his announcement we do not know if he filed his retirement papers with the NFL. If not, then the retirement announcement, was merely a grandiose proclamation. He stated more than once that he wanted to play quite a few more years. The man is not stupid. It could be a way to get more money out of ESPN or whomever was going to offer him an announcing contract. It may also be a way to keep Gronkowski in Tampa Bay. I believe he is looking at playing for the Bills.

Team,

I think you guys are thinking too much. It is the same situation when u won a card from AH claiming... "The only PSA-10 and none higher" then the next day PSA pop shows up another PSA-10. It is simply a risk in our daily bidding life. :D

Since it was Tom Brady’s decision to un-retire, which caused this issue, he should be made aware of this and buy the football. Then he can sign and inscribe the ball as a TD ball and auction it off for charity. Winner, Winner, Chicken Dinner for everyone!

Except in this situation, the balls value decreases significantly, compared to your scenario.

Very interesting on many sides

But to me this was not unexpected. It has been in the news for months that he may comeback even if was next season after taking a season off.
As a result there was always that chance

The bidder know this when bidding so they took a chance and sadly it did not work out for them but to me they need to pay up.

When you buy a stock and the next day or so it crashes even if did not settle yet it still needs to be paid for at the higher value.

Same thing as mentioned above when the one of a kind card turns out to not be when another card or cards are discovered

But in reality big money and big potential loss for the buyer so it will be interesting to see what happens

Unless an auction claims the item is the only one in existence or the only one possible I don't think it's analogous. Claiming something is the only one graded etc. is not guaranteeing it will stay that way. "Unique" gets thrown around a lot, not sure if it's ever been legally challenged in an auction description.

This could all be a moot point. The buyer may have already paid, I don't know how quickly Leland's sends out billings. I know I wire funds immediately so that I don't have open invoices out there. If so it would then turn into a case whereby the buyer is trying to reclaim funds.

I would argue that the sale price ($518k) reflected the risk Brady would return. That is - the risk was already baked into the cake, and is the reason the ball "only" went for $518k and not more.

Over a decade ago, Barry Bond's final homerun ball sold for $750k. Adjusted for inflation, in today's value, the $750k is worth over $832k. Thus, Brady's "final" TD ball sold for just 63% what the Bond's ball would fetch today.

In 1999, twenty-three years ago, a bidder paid $650k for Hank Aaron's final homerun ball (#755). Adjusted for inflation, in today's value, the $650k is worth over $1.1M. Thus, Brady's "final" TD ball only sold for less than half what Aaron's final ball would fetch today.

Like Aaron and Bonds, Brady is a legend and among the greatest to ever play. I know baseball's number are more sacred, but I would expect the true final Brady TD ball to sell close to par with Aaron and Bond's final balls.

The sports collectible market has only increased since the Bond's ball sale. Brady is the greatest QB, and perhaps the greatest football player. The fact his final ball only sold for fractions, when compared with Aaron and Bond's final balls, tells me that the bidding reflected the risk that Brady would come back. If bidder truly thought Brady would stay retired, the ball should've fetched near $1M.

If Brady stayed retired then $518k could have been an absolute bargain. The winning bidder took a gamble that didn't pay out. If Brady stayed retired, the bidder got a tremendous deal. If Brady came back, the bidder could back out and cancel? Where is the bidder's risk? Letting the bidder off the hook gives the bidder all the upside with absolutely no downside.

Good point. I think the description of it was written poorly though. It was too definitive in proclaiming it at his last TD ball.

Actually, this will become the famous I changed my mind ball. In the long run it will have an interesting spot in sports collecting. Not sure it will be as bad as many think.

Never thought of that could be right. Already seen several articles on this so he story/legend of that ball is growing.

Do not know if it grow to the heights of what the buyer paid

I am on the side of he took a risk and now has to pay the piper. But I am not a lawyer, obviously, so I don't know.
That said, now the buyer can buy the next Brady retirement ball and have bookends!
.

leon lol

If you have a 1/2 a million dollars to spend I don't think it's gonna make any difference. It's a lot of money to most of us but people that have it to throw around I don't think they'll be super worried. They still have a game ball no matter which way they go

That's an interesting take. The only difference being Bonds & Brady are both very polarizing figures, and hated by many fans of the sport. I don't think you'd find any baseball fan who actively hated Hank Aaron (racism notwithstanding).

Maybe Tom will never throw another TD and the buyer will be doubly happy. Sure.

Maybe they will gave brady a come back at ages 50, 60, etc and keep throwing ONE TD...auctioned by lelands. It wont matter since people that have a lot of money dont care. :rolleyes:

It was literally hours later....right?

The chances 1/2 a million bucks was wired to Lelands before they had a chance to even send out their invoices, is pretty low I imagine.

I think it's in the bidders court to do what they want, considering the circumstances.

People renege on auction winnings all the time. If auction houses hired a team of lawyers every time somebody backed out of a sale (of which they only get a commission on, while taking the financial risk of the entire transaction), they'd all be broke right now.

I assume it's written in all auction terms for consignors, that non-paying bidders and other complications may arise, which can negate the final result of an auction lot.

My non-contractually, cheeky-tongued, crystal ball is hazy but I see this playing out in 1 of 3 ways.

Buyer will renege on purchase, claim false advertising, and attempt to get money back. Auction House will claim that it was not false advertising at the time of sale. Lawyers will get involved costing both buyer and AH money. Deal will be struck, either with or without courts involved. Buyer will get the 'not final' TD ball for fraction of the cost. Brady will comeback, get injured in the first game and decide to REALLY retire. Even though lawyer fees involved, buyer makes a killing (at least relative to the original price).

OR

Buyer will renege on purchase, claim false advertising, and attempt to get money back. Auction House will claim that it was not false advertising at the time of sale. Lawyers will get involved costing both buyer and AH money. Deal will be struck, either with or without courts involved. AH will retain the ball and buyer will be refunded. Brady will comeback, get injured in the first game and decide to REALLY retire. Even though lawyer fees involved, AH makes a killing because ball now sells for $1 Million.

OR

Buyer will renege on purchase, claim false advertising, and attempt to get money back. Auction House will claim that it was not false advertising at the time of sale. Lawyers will get involved costing both buyer and AH money. Deal will be struck, either with or without courts involved. Brady will comeback and throw another touchdown pass, thus reducing the value of the original ball substantially.

It's a win-win-win situation!!!... For the lawyers. 🙂

This won't get settled for the next 6 months until the season starts and Brady throws his first TD. What if he gets hurt during pre season camp or a game and is out for the season then it's still the last TD. Don't see anything getting settled but you know lawyers will already be involved.

Maybe both the buyer and Leland’s should sue Tom Brady :)

Maybe Mike Evans felt bad for throwing away that ball...and he's the winning bidder. :confused:

Here's a fun (and surely not legally possible, but it's just for fun) way for it to play out:

Buyer pays, receives ball. Sues AH for non-performance of contract, as what he bought was Brady's last TD ball, and that's not what this is. AH says "okay, we'll refund your money and call the whole thing off", and buyer says "no" and demands specific performance. Then AH has to get Brady's final TD ball somehow. Maybe they buy all the seats by the endzone during his final game, hoping that some receiver will toss it to them.

This kind of topic and incident just make me sick to the stomach since we will never know the outcome definitively. It might just get "settled peacefully" but not in full hammered price etc. who knows?

Just like what happened to that $3M pokemon case that was fake? Anyone put in jail? All parties got their money back? No one wants to talk about it because lawsuit is on-going???

If the winner has 2nd thoughts (and not unlimited IDGAF type funds), likely they and Lelands come to some sort of an agreement to nullify the result of the auction.

I doubt the consignor has any recourse at all. They got the ball for free. Everybody knows this. Auctions go unpaid for all the time. High bids are deemed faulty all the time, for one reason or another. It's likely written into the terms.

That is the first, and most, 100% accurate statement in this entire thread! :D

Maybe somebody already asked this, but would it really be seen in the eyes of the court as entirely unforeseeable that Brady would come out of retirement? There were already plenty of sports pundits and other former NFL players who were saying last month that they expected he'd play next season. Wouldn't the auction have gone even higher if that hadn't been the case, or did the bidders just figure they could get out of paying if that happened?

On the other hand, by adding a sentence to the auction Leland's easily could have foreclosed any argument by the buyer.

I don't think any of the bidders (or Leland's), anticipated that Brady would come out of retirement, just hours after the auction for his alleged last TD ball ended.

If it had been a week later, and money had already been exchanged, it might be a much more complicated matter.

As it is...I'd guess, to use a football analogy, we have off-setting penalties. Time to re-set, regroup, and try it all over again. Probably best for everybody involved this ball didn't go for multi-million $'s.

If this ball WAS legit, and has rock solid, unimpeachable provenance....I have a hard time wrapping my head around the fact that several Tom Brady trading cards, have sold for multiple times what this ball hammered down for...even if the ball ends up just being a known thrown TD ball from a playoff game near the end of Brady's career.

I would think ANY Brady TD ball, would be worth more then ANY Brady trading card. :confused:

I agree. Even the way his retirement was leaked initially and everyone including him came out and said it was not true only to have him recant and then confirm he was retiring a few days later.

Not sure the value of a first TD ball is compared to that of a last TD ball but his first sold for 428K in 2021 by Leland's which I don't think suggests anyone held back in Saturday's auction.

A fool and his money are soon parted...

This was the risk that the bidder made and did lose 500k in 2 hours which was impressive. Anyone who thought that Brady would not pull a Favre in at least the next 2 years is nuts. Granted the speed of the return was a tiny surprise, but for me it would only had been a shock if he did not return after next season.

He should pay and learn about risk in investment.

This is a smaller scale but it's like going to a concert that was promoted as the artist farewell tour. You buy the ticket, concert is over, sell the ticket for a good sum of money then the artist decides to come out of retirement a couple years later to tour again.

That's funny. We went to the highly-touted 'farewell tour' of The Who at Giants Stadium. Who knew then that they'd still be touring a couple of decades later?

Ah, they DID, did they? So it WAS false advertising. :D

I remember a few other performers that un-retired, or is it re-retired, as well.

Could there be a reasonable person argument made? Since, the second Brady retired speculation about a comeback was rampant in the media, would a reasonable person have to assume the possibility of a comeback?

Funny how all the big stars always say there retiring to spend more time with their family. Then after a few months their back playing ball again. So much for quailty time with the family. Guess the family doesn't cheer them when they walk in the room

Famous comedian, and one time part-owner of the Cleveland Indians, Bob Hope, got married to his wife Dolores in 1934, and remained so till he died 69 years later. Many years after getting married, Hope was asked the secret for his long marriage to just one women, his wife Dolores. He quickly responded it was very simple, they went out to dinner twice a week..............he went on Tuesdays and she went on Thursdays! :D

So why doesn't that give rise to a duty on Leland's to disclose the speculation? Leland's knows and has made clear all the value in the ball depends on his being retired. All these arguments cut both ways it seems to me.