Business Lessons from a Foul Ball and an Unconscionable Contract

On a Monday night in the summer of 2018, Laiah Zuniga and a friend attended a Cubs baseball game at Wrigley Field. Her father had won tickets in a workplace raffle and gave them to Ms. Zuniga. During the fifth inning, Ms. Zuniga was sitting in her seat on the third base side eating a sandwich when she was struck in the face by a foul ball that was traveling at a high rate of speed. She sustained serious injuries to her head and face, including multiple fractures. She was hospitalized for several days. 

Ms. Zuniga filed a lawsuit against the Cubs and Major League Baseball (MLB) alleging, in part, that the Cubs were negligent in not installing safety netting that would have shielded her from the foul ball.

The Cubs and MLB filed a motion to force the matter to arbitration. The Cubs and MLB cited one of the terms and conditions on the reverse of Ms. Zuniga’s ticket. The trial court denied that motion, and the Cubs and MLB appealed.

In March 2021, the First District Appellate Court of Illinois affirmed the trial court’s decision concluding that the arbitration clause referenced in the ticket was both procedurally and substantively unconscionable. The Appellate Court’s analysis contains important considerations for businesses that rely on standardized terms and conditions.

An unconscionable bargain has been defined as one “which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.” In re Marriage of Richardson, 237 Ill. App. 3d 1067, 1080 (1st Dist. 1992).

Generally, a party who challenges a contract term or condition as unconscionable focus on (1) procedural unconscionability, (2) substantive unconscionability, or (3) both. Ms. Zuniga and her attorneys challenged the arbitration clause as both procedurally and substantively unconscionable.

Procedural unconscionability relates to the ease by which a customer is able to identify a particular term or condition. The physical characteristics of the ticket and the circumstances surrounding the ticket’s acquisition are the primary considerations in assessing procedural unconscionability.

In Ms. Zuniga’s case, the reverse side of the ticket contained language referencing an arbitration provision. But, to read the entire arbitration provision (consisting of eight paragraphs), the ticketholder was forced to locate it on the Cubs’ website or visit the Cubs’ administrative offices in person. The court noted the impracticability of both options and specifically made note that the ticket does not inform the ticketholder where the administrative offices may be found.

The court also found deficiencies in the physical characteristics of the language on the reverse side of Ms. Zuniga’s ticket. The six paragraphs of text were printed in very small (four-point) font. The court also stated that there is nothing about the notice that would draw Ms. Zuniga’s attention to the fact that she was agreeing to give up important legal rights (i.e. filing suit in a court of law) by using the ticket.

The court briefly addressed the allegations of substantive unconscionability as well. The arbitration provision did permit a party to opt-out of arbitration within seven days of the game. The form to opt-out, however, requires that the ticketholder (“must”) have an account number, which Ms. Zuniga did not have. The court also made the point that Ms. Zuniga’s injuries caused her to be hospitalized and otherwise prevented her from reading for more than seven days.

Many businesses use standardized terms and conditions to quickly and efficiently facilitate transactions. These businesses should heed the lessons emanating from the unfortunate case of Ms. Zuniga.

First, give appropriate attention to the substance of your terms and conditions. Make certain that provisions that allow an opt-in or opt-out are free of unreasonable barriers such as excessively short time frames and requiring information (i.e. an account number) that the customer may not have.

Second, do not lose sight of the procedural side. The terms and conditions should be easily located, readable and understandable. Provisions that directly affect the right of a customer to file a lawsuit (i.e. a waiver of a jury trial or mandatory arbitration) should be in a larger font and in a different color. Paragraph spacing can also be used effectively to separate out key provisions. In general, make a concerted effort to draw the readers’ attention to these critical clauses.

Finally, where possible, utilize a system that captures and stores a customer’s acceptance of terms and conditions.



If you have any questions about your company’s terms and conditions and business practices, feel free to contact Attorney Brian Massimino at 312-332-7555 or bmassimino@lavellelaw.com.