A sports photographer, who works for the Associated Press, who was injured while covering a game at Wrigley Field in 2018 has won a new chance to take a swing at the Chicago Cubs in court, after an Illinois appeals panel said the Cubs can't use an arbitration clause attached to media credentials to sidestep the lawsuit.
The ruling was issued as unpublished order under Supreme Court Rule 23, which may limit its use as precedent.
The decision, however, overturned the ruling of Cook County Judge Catherine A. Schneider, who had initially sided with the Cubs in a ruling last February.
The ruling would have allowed the Cubs to force Arbogast and his attorneys to take his legal claims against the Cubs to an arbitrator, rather than moving forward in court.
The legal action began in 2020, when Arbogast first filed suit in Cook County court, asking the court to order the Cubs to pay for injuries Arbogast said he suffered on July 26, 2018, when he fell from a stack of pallets photographers used in the first base photo well when shooting games at Wrigley Field.
The Cubs asked the court to dismiss the lawsuit, asserting an arbitration clause included in the terms and conditions of Arbogast's press pass should block him from bringing his claims to a jury.
The courts initially sided with Arbogast on the question in rulings issued in 2021. In later hearings, however, Judge Schneider agreed with the Cubs that the arbitration clause should hold sway.
Arbogast's lawyers, however, argued the media credential issued by the Cubs and accepted by Arbogast, subject to the terms and conditions of a written agreement, did not amount to a legal contract. But if it did, they argued, the arbitration clause still should be ignored, because the clause was not prominently displayed or readily explained, so it should be held to be "procedurally or substantively unconscionable" and thus invalid.
On appeal, the justices again tallied the score for Arbogast on the question.
In their decision, the justices noted the user agreement for media credentials issued by the Cubs is only available online through a site known as MLBPressbox.com. Then, they said, that agreement was not displayed prominently enough among "multiple other hyperlinks" on the site.
Further, they noted, the arbitration clause was "buried" in Paragraph 22 among the 25 paragraphs of the agreement's terms and conditions.
The justices said the relative difficulty associated with locating the clause was similar to those allegedly encountered by sports fans who may be injured while attending games. They noted an Illinois appeals court, in the case known as Zuniga v Major League Baseball, similarly ruled in 2021 in favor of a fan who claimed the arbitration clause they allegedly agreed to when purchasing a ticket was similarly "unconscionable" for many of the same reasons.
"Whereas the back of the ticket in Zuniga at least mentioned 'arbitration,' here, plaintiff had to jump through many hoops before learning that he was agreeing to arbitration by using his media credential," the appeals court said.
Citing the Zuniga decision, the appeals panel said: "... Considering all of the circumstances in this case, plaintiff 'cannot fairly be said to have been aware that he ... was agreeing' to binding arbitration through the use of the media credential."
The panel sent the case back to Cook County court for further proceedings.
The decision was authored by Illinois First District Appellate Justice Mary Ellen Coghlan; Justices Terrence Lavin and Aurelia Pucinski concurred.
Arbogast has been represented by attorneys from the firm of Tomasik Kotin & Kasserman, of Chicago.