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

[Peter_Spaeth]

Originally Posted by Smarti5051

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.

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.

[Smarti5051]

Originally Posted by Peter_Spaeth

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.

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."

[Peter_Spaeth]

Originally Posted by Smarti5051

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.

[Mark17]

Originally Posted by Peter_Spaeth

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.

[Peter_Spaeth]

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.

[Smarti5051]

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.

[Peter_Spaeth]

Originally Posted by Smarti5051

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.

[Michael B]

Originally Posted by Peter_Spaeth

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 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.

[chriskim]

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.

[SyrNy1960]

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!

[Smarti5051]

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.

[NiceDocter]

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.....

[Aquarian Sports Cards]

Originally Posted by NiceDocter

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.....

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.

[pokerplyr80]

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.

[brianp-beme]

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

Brian