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

[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.

[Peter_Spaeth]

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?

[drcy]

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.

[Lorewalker]

Originally Posted by Peter_Spaeth

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?

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.

[Peter_Spaeth]

Originally Posted by Lorewalker

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.

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.

[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.

[darkhorse9]

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.

[Snapolit1]

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.

Originally Posted by 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.

[nat]

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".)

[Smarti5051]

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.

[Snapolit1]

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

Originally Posted by Smarti5051

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.

[Peter_Spaeth]

Originally Posted by Smarti5051

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.

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

[BobC]

Originally Posted by Smarti5051

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.

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.

[Snapolit1]

Originally Posted by nat

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".)

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