To the ire of the New England Patriots and the NFL, Carl J. Mayer, football fan, Jets season ticket holder, and, most importantly, a lawyer with a like-minded colleague, has filed the lawsuit that won't die.
He's claiming the Pats and their coach, Bill Belichick, owe fans $184 million in compensation stemming from the infamous incident on Sept. 9, 2007, when a Patriot employee surreptitiously videotaped the New York Jets defensive signals.
Or as Mayer contends, "illegally recording, capturing and stealing the New York Jets signals and visual coaching instructions," thereby depriving ticket holders of an "honest match."
The lawsuit was widely derided and ridiculed when it was filed in 2007. A U.S. District Court judge in Trenton, New Jersey, tossed it out without a hearing. But the case is still alive because of the Third Circuit Court of Appeals in Philadelphia, which hears New Jersey cases. The higher court not only agreed to decide whether the potential class action case can go to trial, but selected it to be one of the relatively few cases to get an oral argument before a three-judge panel.
Kickoff is at 1:30 p.m. Wednesday.
While the NFL fined Belichick $500,000 and the Patriots were ordered to pay $250,000, Mayer wants ticket holders to get a triple refund for all eight games played between the Patriots and the Jets in Giants stadium from 2000 through 2007.
The Pats and the NFL, through their attorneys, have begged the court to toss the case. Their opinion?
"Frivolous." "Mockery of the judicial process." "The NFL respectfully submits that allowing this case to continue any longer would only waste more time, money and judicial resources," the lawyers said in court filings.
Even when Mayer and colleague Bruce Afran, both Princeton attorneys, twice missed filing deadlines - technically a reason to toss the case - the appeals court rejected pleas for a dismissal.
Apparently someone on the court finds the legal issues intriguing.
"For them to grant argument on a case like this is pretty unusual," said Burt M. Rublin, who specializes in appellate law at Ballard Spahr LLP. He is not involved in the case.
"The court generally reserves argument for cases that they find significant, because they have so many appeals," he said.
Like many attorneys, and not a few sports fans, Rublin recalls the news coverage when Mayer first went to court. "We all thought what a ridiculous law suit."
For pro-football, the suit is a potential nightmare. There are hundreds of rules governing player and team behavior on and off the field. And, "teams sometimes decide to break rules intentionally to gain a competitive advantage," noted the Patriots' lawyers.
"If every patron at every game could sue every time a team was offsides or took a cheap shot at the quarterback - or had a player that was found to have taken 'banned substances'," said a court filing, "every court in the country would be overfilled with class action law suits."
"That's absurd," Mayer said in an interview. He spent 10 years on the waiting list for a Jets season ticket. "They are trying to argue that its no different than an offensive lineman trying to hold someone."
Mayer and Afran contend that media accounts of the Patriots taping and information collected by U.S. Sen. Arlen Specter suggest the team was secretly tapped opposing squads from 2000 through 2007. That, says Afran, "rigged" the games in the Patriots favor. The Patriots did not respond to a request for comment Tuesday.
"This is a case involving fraud by the management of the team," Afran said in an interview. "One team is rigging it, because one team is getting an advantage over the other . . . Its the ticket holder who is defrauded."
The Patriots and the NFL want the court to uphold the 2008 decision of U.S. District Court Judge Garrett E. Brown Jr.
He read the suit, and in a seven page decision gave Mayer and Afran the back of his hand. "Plaintiff's ticket was redeemed, and he was able to see whatever transpired . . . on that date, in this case, a football game, and as a result Plaintiff got exactly what he paid for."
Ticket holders have no legal right to sue over the quality of the play, he concluded.
The NFL says Brown was "absolutely" right.
"The question is whether they have any right to monetary damages,' said Greg Aiello, a spokesman for the NFL said Wednesday, "and the judge ruled under the law they don't."
The NFL is a party because Mayer contends the league's decision to destroy the Patriot's cache of videos was, essentially, destroying evidence.
Mayer and Afran are not exactly minor leaguers. They've made a career of representing the little guy. Mayer describes himself as the "Lawyer for the People," and on his Web site says he "dedicates his law practice, writing and electoral efforts to ending the tyranny of corporate power over American citizens."
Afran once ran for the U.S. Senate from New Jersey on the Green Party ticket.
Mayer also concedes that if he and Afran weren't lawyers, there would likely be no case.
"It would very, very expensive," for anyone without their own law degree, he said. "The other side has an entire squadron they are throwing at this."