Win, Lose or Draw Up a Legal Brief: Two Years After the 'NOLA No-Call'

It's championship weekend. There will be controversy. People will be pissed. Someone might even sue. But it wouldn't be the first time. Two years ago, after a refereeing debacle tilted the NFC title game, Saints fans challenged their loss with lawsuits. Of the five cases, one even reached the Louisiana Supreme Court. But to what end?
Author:
Publish date:

The spare bedroom has become a museum, paying homage to a lifetime of superfandom. “My wife thinks I’m a little over the top with this Saints business,” says New Orleans attorney Tony LeMon. And indeed, to employ the parlance of his profession, the evidence is indisputable.

Trading cards and action figures stuff a series of glass cases, competing for precious shelf space with countless bobbleheads and baubles. Fifty-plus NFL jerseys hang inside a replica of Drew Brees’s locker room stall, near an oversized helmet signed by coach Sean Payton. The collection started back in the late ’60s, soon after the Saints came to town, when young Tony began saving the stubs from discounted kids tickets—one dollar each—that he bought with money earned performing odd jobs for his New Orleans neighbors. “I couldn’t afford some of the things I really wanted,” LeMon says. Clearly that changed. Now his memorabilia mountain includes a wall-mounted, Saints-colored fish, which LeMon says was designed by a Disney artist; a pewter chess set with Saints and Falcons players as pieces, which LeMon heard once belonged to his team’s original owner, John Mecom Jr.; and two Saints-themed electric guitars.

dCOVsaints_VT

Even among these one-of-a-kind treasures, though, one item most effectively captures how deep LeMon’s devotion goes: a framed political cartoon, set atop a grassy knoll, with the Superdome looming in the distance. To the left, a small man in a black, leather Saints helmet scowls. His gladiator’s skirt reads TONY and he wields a golden slingshot with a rock labeled LAWSUIT. Across the knoll stands a hulking man with flushed cheeks and fearful eyes. Sweat beads spew from his crowned head. The spear and shield in his hands shake. A yellow flag that says NOLA NO CALL is tucked into his NFL-branded skirt. His breastplate reads ROGER GOODELL.

Two years ago this week, late in regulation of the NFC championship game, LeMon was perched in his usual Superdome seat—section 640, row 8—when a now-infamous missed pass interference call set the table for the Rams to beat the Saints in overtime, 26–23, propelling them to Super Bowl LIII in Atlanta. The reaction from Who Dat Nation was predictable: swift and furious. Some fans chucked bottles onto the field. One riled supporter rented seven Atlanta-area billboards and blasted the league with messages declaring, for example, NFL BLEAUX IT. An online petition calling for the whole game to be replayed drew nearly 760,000 signatures within a week.

LeMon, a former first assistant DA in Louisiana’s 22nd judicial circuit who returned to private practice in 2018, took things even further, filing what became a highly publicized lawsuit against the NFL, commissioner Goodell and three referees, alleging, among other things, fraud. But he wasn’t alone in seeking retribution through legal channels. By late February, a month after what some pundits dubbed the worst blown call in NFL playoff history, at least four other suits, each led by diehard Davids, had been filed against football’s Goliath.

Ticket holders taking on sports leagues is hardly a new concept. Countless claims have filled court dockets for as long as fans have filled grandstands—a few of them serious, most of them fatuous, virtually all of them doomed from the start. “People talk about having their day in court,” says attorney Steve Adelman, who teaches sports law at Arizona State, “but generally their day in court is pretty short.”

LeMon's mountain of memorabilia grows.

LeMon's mountain of memorabilia grows.

The rash of litigation following the so-called NOLA No-Call was no different, as all five suits were withdrawn or dismissed by September 2019. (LeMon’s went the furthest, scoring wins in two lower courts before the state supreme court ruled in the NFL’s favor.) The news cycle spun forward, football season began anew and Saints fans continued to suffer playoff heartbreak, from last season’s overtime loss to the Vikings, to last Sunday’s sad-trombone of a (possible) swan song for Brees against the Buccaneers.

But the litany of litigation remains noteworthy for other reasons. The sheer volume of fans seeking judgment over a single play was unprecedented, sparked by what Tulane law professor Gabe Feldman calls “a perfect litigation storm” for a fan base still ticked off about Bountygate. “I’m not aware of any other [sports moments] bringing this many lawsuits,” says Feldman, “but I’m also not aware of any cases involving such an egregiously bad call, at the end of a game, in a city as passionate about its team as [New Orleans is about] the Saints.”

Perhaps more than any other set of sports law cases, the Saints suits also showcased two timeless aspects of the fan experience: the ultimate helplessness with respect to what happens on the field of play, and the innate human desire to challenge it nonetheless. “As much as I understand the fan disappointment, these suits border on frivolous,” says Jodi Balsam, a professor at Brooklyn Law School and a member of the NFL’s in-house counsel in the ’90s and ’00s. “But I don’t know if our litigious society will stop filing them.”

Tommy Badeaux grew up in Cut Off, La., a tiny bayou town that he describes as “a really Cajun, rural fishing community, like in The Waterboy.” Cut Off was also the home of then Saints quarterback Bobby Hebert, whose mother, Paula, taught at the local kindergarten. “We’d bring our cards to school in envelopes, and she’d give them to him to sign,” says Badeaux. “Not everybody was into sports. But everybody was a Bobby Hebert fan.”

Badeaux, now 36, was both. As a kid, he accumulated so many autographed Hebert items—hundreds of trading cards, yes, but also footballs, jerseys, hats, Sports Illustrated covers, even a Bible—that he started joking with friends about creating a “Bobby shrine.” To this day, Badeaux ranks the Saints’ decision to part ways with Hebert in 1993, after seven seasons, as the third-most heartbreaking moment of his three-plus decades as a fan. The Minneapolis Miracle is second. The Rams no-call, obviously, is first.

Badeaux was watching from his season-ticket seats in section 616 on Jan. 20, 2019, wearing a Taysom Hill jersey, Saints Zubaz pants and black-and-gold Air Jordans. He was “feeling on cloud nine” as his team “came out like gangbusters,” intercepting Jared Goff on L.A.'s opening drive and leaping out to a 13–0 lead after the first quarter. “Then the Rams come back, then we go ahead again,” Badeaux recounts. “Then that play happens.”

The details are seared into every Saints fan’s mind. The third-down pass from Brees to receiver Tommylee Lewis with less than two minutes left in a 20–20 game. The early hit on Lewis from cornerback Nickell Robey-Coleman, deep in Rams territory. The sudden shock when no flag was thrown. (“I don’t think I’ve ever heard the Dome that quiet, and then gotten that angry, in a span of three minutes,” says Badeaux.) A pass interference penalty and a fresh set of downs would’ve allowed New Orleans to run down the clock and kick a potential game-winning field goal with next to no time remaining. Instead, facing fourth-and-10, Payton took the points early, leaving the Rams enough clock to force overtime, where eventually they won on a field goal.

Payton, fired up over the 2019 no-call.

Payton, fired up over the 2019 no-call.

Like so many other Saints fans, Badeaux filed out of the stadium in stunned silence. “I don’t think I spoke to my wife for about three hours,” he says. “It was nuts. Nobody said, ‘See you next year’ or anything.” Still stinging the following morning, he called himself out at the law firm where he works and resorted to commiserating with some fellow attorneys in a group chat. “Somebody was like, ‘What happened to the Saints was criminal. Somebody should sue,’ ” Badeaux recalls. “I responded: ‘You know ... Wouldn’t that be funny?’ ”

Laughter was one common reaction when Tommy Badeaux et al. v. Roger Goodell et al. landed in New Orleans civil district court on Jan. 22, two days after the Saints’ loss. “I’m a personal injury lawyer, so obviously I get made fun of every day already,” says Badeaux. Vitriol was another. “I got my share of hate mail saying, ‘You’re so stupid; you’re a crybaby, a sore loser.’ ”

But Badeaux’s suit (filed with the boss at his firm, Frank D’Amico, as the lead attorney) was serious in its aim, asking the court to issue a “writ of mandamus” compelling Goodell to take action on the Rams-Saints outcome via the NFL’s Rule 17, which gives the commissioner authority to intervene over “extraordinarily unfair acts.” “The impact of the non-call,” read Badeaux’s initial complaint, “is egregious and demands recourse.”

Further litigation was underway elsewhere across the city. One effort was spearheaded by attorneys Clé Simon and Kevin Duck, whose firm sent a Jan. 21 letter to Goodell promising to “investigate any and all potential causes of action” before eventually filing for damages in federal court in late February on behalf of two fans, Daniel and Barbara Ryan. “You can’t really fight the NFL,” says Daniel Ryan, who fell in love with the Saints from his father’s end zone seats at Tulane Stadium. “But, to me, this was the only way we had a shot to get some justice.”

Another came courtesy of LeMon, who leapt into the legal fray in early February, having rallied three co-plaintiffs to his cause: friend Susan Boudreaux, who he met racing triathlons; fellow section 640 ticket-holder Chris Lopez, who sits in row 7; and law school classmate Mary Grace Knapp. “Tony called and asked, ‘Do you want to sue the NFL?’ ” Knapp says. “I told him, ‘Hell, yeah.’ ”

Setting his suit apart from the other fan-led actions, all of which wound up in federal court, which is favorable NFL turf, LeMon shrewdly kept his case local by declining to pursue class-action status, limiting alleged damages to less than $75,000. (He promised to donate all proceeds to Saints-affiliated charities.)

“I felt I would get a better shot with a local judge,” LeMon says, and for a time the strategy succeeded. That July, civil district court judge Nicole Sheppard denied an NFL motion to dismiss the suit and instead granted LeMon’s motion to compel discovery, raising the possibility that LeMon would get to question Goodell and the referees under oath, a hair-raising scenario for the beleaguered league. A week later, an appeals court unanimously upheld Sheppard’s decision. “I thought: Man, I’m sitting pretty,” says LeMon.

Robey-Coleman cemented his place in tales of Saints postseason sadness.

Robey-Coleman cemented his place in tales of Saints postseason sadness.

As NFL training camps opened that August, LeMon’s case was the only fan-led suit left standing. One complaint, seeking $10 billion in damages and a replay of the game, lasted just four days before being dismissed due to insufficient paperwork. Badeaux’s suit was dropped in late February over what he says was a “lack of standing to sue based on what we were asking,” although not before he attended a briefing with league lawyers—to which his legal team brought a blown-up photo of Robey-Coleman leveling Lewis—and drew some solace from an NFL filing that admitted: pass interference was “mistakenly not called.”

A similar fate befell another class-action petition, Guillory v. National Football League et al. That suit, too, had sought to compel Goodell to invoke Rule 17, in this case by citing, in part, a December 2007 NBA game between the Miami Heat and Atlanta Hawks, the final 51.9 seconds of which had to be replayed because the arena statistician incorrectly ruled that Shaquille O’Neal had fouled out. The Ryans, meanwhile, survived into the summer, until a federal judge threw out their suit, characterizing their claims as “threadbare.”

“I was disappointed,” says Daniel Ryan. “I wanted some discovery. I wanted to see some NFL emails. I wanted to see Goodell’s phone.”

For LeMon, the scales were tipped by an unexpected hand in early August when the Saints filed an amicus brief in support of the NFL’s motion to dismiss. “I felt betrayed,” LeMon says. “But I also understood.” He tried to soldier on, finding a small victory when the NFL responded to his request for the production of documents with an 87-page filing that cited the referees’ recollections of the play in question. “I was shocked,” LeMon says. “To my knowledge, it was the first time the NFL had ever answered anything in litigation about referees.” Ultimately, though, the Louisiana Supreme Court threw out LeMon’s case, reversing the lower courts’ decisions.

“While we are certainly cognizant of the passion of sports fans, and particularly those who are fans of the New Orleans Saints,” that ruling read, “the courts are not the proper forum to litigate such disputes.”

DAILY COVER

The year was 1913. Europe was a powderkeg, Woodrow Wilson had just been inaugurated and the U.S. Supreme Court was mulling a case against the Washington Jockey Club. The plaintiff, a racehorse owner named Joseph Marrone, was suing because he’d been denied admission to a D.C.-area race track, even though he had purchased a ticket, on the grounds that he was known to have drugged one of his steeds with a stimulant.

In addition to claiming that he had been “greatly injured in his person, his feelings, and his reputation,” as a lower court filing read, Marrone argued that his ticket entitled him legal entry to the track, no matter how its owners felt about his behavior. But the Supreme Court, in a decision written by Oliver Wendell Holmes Jr., ruled that the track owners were free to reject whomever they pleased, as the “ticket was not a conveyance of an interest in the race track.”

This established the precedent of sports tickets as “revocable licenses," a legal term summarized by Adelman, the ASU sports law professor, as “an agreement to enter someone’s property and obey by their rules.” Think: stores with No shirt, no shoes, no service signs. Or, say: businesses insisting that customers take proper health precautions during the COVID-19 pandemic. “It is the exact same issue when it’s [someone] at Walmart or Trader Joe’s screaming about having to wear a mask,” Adelman continues. “The ‘license’ is limited in scope. It allows you to be there. ... The license does not guarantee you any particular outcome, or even quality of performance. If it did, then Denver Broncos fans would have some pretty legitimate grievances about the no-QB game in November.”

Instead, the powers that be almost always prevail. In 1977, several season-ticket holders unsuccessfully sued the New York Nets for trading Julius Erving to the Sixers, claiming that they’d bought their seats under the assumption that they’d get to see Dr. J in person on a regular basis. A similar outcome was reached in Bickett v. Buffalo Bills, filed by a fan seeking damages due to canceled games during the 1982 players’ strike. Ditto for the 2000 case of Castillo v. Tyson, brought by a plaintiff who wanted his money back because Mike Tyson had chomped off a chunk of Evander Holyfield’s ear.

Nets fans were ticked off about the departure of Dr. J, a player they'd paid to see—so they sued.

Nets fans were ticked off about the departure of Dr. J, a player they'd paid to see—so they sued.

A pair of more recent failed lawsuits were mentioned in the Louisiana Supreme Court’s opinion that decided LeMon’s case. One was Mayer v. Belichick, a 2010 suit brought against the Patriots’ coach by a Jets fan alleging fraud and deceptive business practices during the Spygate scandal. The other was Mancina v. Goodell, a class-action claim in ’13 involving New Orleans fans who contended that the commissioner had diminished the value of Saints tickets by punishing their team for Bountygate.

“In virtually all of the cases, at every level, the courts have ruled that there is no contractual relationship between the fan and the team and the league,” says Feldman, the Tulane law professor. “Or, if there is, the contract only entitles the fan to enter the facility and view the game. … As a sports fan, I appreciate the effort, and I appreciate the cathartic nature of filing a complaint. As a lawyer, I know they’re doomed to fail.”

LeMon hurled one last Hail Mary in November 2019, having become outraged when attorneys for New Orleans’s Roman Catholic Archdiocese cited Antonio LeMon et al. v. National Football League et al. in a motion to dismiss litigation concerning alleged sexual abuse. But his attempt at a Louisiana Supreme Court rehearing was denied. “There is clearly a harm, and a wrong, but it does not equate to a legal cause of action,” says Feldman. “As upset as I was as a Saints fan, and as upset as other Saints fans were, I think it would set a very bad precedent if fans could sue every time they believe a bad call was made.”

For LeMon and others, it was a heartening sign to see the NFL install pass interference review for the 2019 season. But that experiment was scrapped after a single year, which for Saints fans ended with more trash hitting the Superdome turf, again in frustration over controversial refereeing. Weighing all of this—the failed suits, the lack of any real action by the league—all six fan plaintiffs reached for this story testify that they wouldn’t hesitate to again take legal action on behalf of their team. “In a heartbeat,” says Boudreaux. “In a New York second,” says Ryan.

Even in defeat, they wear their efforts like badges of honor. Beyond the political cartoon—a gift from Pulitzer Prize–winning cartoonist Walt Handelsman—LeMon keeps framed copies of his victorious trial court and appeals court rulings in both his law office and his spare bedroom/Saints museum. The hate mail has largely waned for Badeaux, but he says he still occasionally gets identified as “Tommy Badeaux? Like, the dude who sued the NFL?” And when Knapp was asked to speak at the North American Law Summit in Cancun last November, she devoted a full hour to breaking down the no-call litigation. “I got a lot of applause,” she says. “People were laughing, though, because the situation was so ridiculous.”

Goodell still gets a warm welcome any time he visits New Orleans.

Goodell still gets a warm welcome any time he visits New Orleans.

Then again, that’s sports. Blown calls are baked into the experience. So are ticked-off fans looking for recourse by any means necessary. The mission may be futile. “I can’t anticipate a situation where a bad call could generate a non-frivolous lawsuit,” says Balsam, the old NFL counsel. But that didn’t stop LeMon and his peers from trying, and it won’t stop the next batch from filing suit, either.

“I was thinking about that Saints play during the Browns game last weekend, when the touchback happened,” Balsam says, referring to the controversial fumble-touchback that helped the Chiefs beat Cleveland last Sunday to reach the AFC championship game. “There should’ve been an unnecessary roughness penalty for a head hit, and the ball should’ve been spotted and a first down awarded. But the only thing that was reviewable was the fumble, which was caused by the head hit that wasn’t flagged.

“I thought that was criminal. To me, that was on par with the officiating mistake in the 2019 NFC championship. But for some reason it just didn’t get the attention, the reaction.

“Where are the Browns fans’ lawsuits on that one?”

Read more of SI's Daily Cover stories