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

[FrankWakefield]

When I first saw this thread I initially thought that the buyer bought it, it's his.

But I didn't post one of my cynical, heartless responses.

I thought more about it, and decided that Brady should probably honor the bid if the buyer didn't want to follow through with it. Now who here knows Tom or his agent well enough to suggest this to him.

But that's not now how I have decided what should happen. Think about it. Is Tom Brady the first professional athlete who retired and then returned? Absolutely not. Did the auction house guarantee that Brady would stay retired? NO! The buyer bought that ball, he should honor his bid. I understand the ball may well not be the last touchdown pass of the career ball; but it wasn't a conditional bid / purchase. The high bidder should pay, and everyone should learn from it.

(Being a Colts fan since about 1965, give or take a year, I kinda liked the deflated comment. And being a Colts fan, who the hell would want a Tom Brady anything???)

[Peter_Spaeth]

Judge Frank, are you just opining on what you think the right thing to do here is, or what the result would be if (hypothetically) the buyer didn't pay and Leland's sued? Because if the latter, as I posted,


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.

All three elements are met, no?

If you think not, would be interested in your reasoning.

[FrankWakefield]

The Coronation Cases... we had that in a Contracts case. A coronation in England didn't happen as scheduled because one of the royals was gravely ill. The courts ruled against the landlords or lettors of the flats along the coronation route refund money to the renters. That's not what happened here. The frustration of purpose doesn't apply.

No one seems concerned about the seller / consignor. Is the auction house going to honor the bid, buy the ball themselves, and pay the consignor what he's due? The auction house shouldn't just unilaterally say ok, we aren't going through with this sale, seller, catch, here's your ball back.

The buyer bought the ball, he should pay for it.

[Peter_Spaeth]

Originally Posted by FrankWakefield

The Coronation Cases... we had that in a Contracts case. A coronation in England didn't happen as scheduled because one of the royals was gravely ill. The courts ruled against the landlords or lettors of the flats along the coronation route refund money to the renters. That's not what happened here. The frustration of purpose doesn't apply.

No one seems concerned about the seller / consignor. Is the auction house going to honor the bid, buy the ball themselves, and pay the consignor what he's due? The auction house shouldn't just unilaterally say ok, we aren't going through with this sale, seller, catch, here's your ball back.

The buyer bought the ball, he should pay for it.

With respect, it does apply I think. An event after formation happened (here, Brady unretiring, there, the postponement of the coronation) that completely frustrated the buyer's purpose, without his fault, in agreeing to the contract. Just as a post-formation event frustrated the purpose in the Coronation Cases. I don't see the distinction analytically.

Certainly in the coronation cases the buyer knew or should have known there was a possibility the event would be cancelled, but that did not stop the British court from excusing him from performing.

[FrankWakefield]

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.

[Peter_Spaeth]

Originally Posted by FrankWakefield

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.

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.

[Smarti5051]

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.

[Peter_Spaeth]

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.

[Peter_Spaeth]

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.

[BobC]

Originally Posted by Smarti5051

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.

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.

[drcy]

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.