With three minutes remaining in the fourth quarter of Sunday night’s game between the New England Patriots and the Kansas City Chiefs at Gillette Stadium, Chiefs wide receiver Tyreek Hill caught a pass from quarterback Patrick Mahomes at the 37-yard line. He then sprinted into the end zone of Gillette Stadium for a 75-yard touchdown. It was Hill’s third touchdown of the night and tied the score at 40. As he excitedly ran to a barrier between the field and fans in hopes of celebrating, several of the fans seated immediately next to the barrier gave him the middle finger. Another, a 21-year-old man from Mansfield, Massachusetts, doused beer on Hill. The Patriots went on to win the game 43-40, but the incident sparked post-game questions about player safety and the physical proximity between players and fans.
On Monday, the Patriots announced that the beer-throwing fan had been identified. He is now permanently banned from all events held at Gillette Stadium. Of greater legal concern for this fan, Foxborough police have charged him with disorderly conduct and throwing an object at a sporting event. In addition, Hill’s agent, Drew Rosenhaus, opined to ESPN’s Adam Schefter that the fan ought to be prosecuted to the fullest extent of the law. Rosenhaus stressed that the prosecution is necessary in order to help guarantee that players are adequately protected from unruly fans. Rosenhaus also indicated that he and Hill are in discussions with the NFL and NFLPA about the incident.
Important legal roles of the game ticket and Gillette Stadium’s “code of conduct” in banning the fan
Patriots owner Robert Kraft, who through the Kraft Group owns Gillette Stadium, is well within his rights to ban this fan from ever again entering his stadium. This legal power stems from the contractual nature of a ticket to enter a privately owned facility.
A game ticket might not seem like a contract. After all, it’s smaller than a page and not subject to negotiation. But a game ticket is a contract. It’s a contract that supplies a limited and revocable license to the ticket holder to enter a facility for a specific event. A person who bought a ticket to the Patriots-Chiefs game was allowed to enter Gillette when gates opened on Sunday afternoon. This person could then remain in the stadium while the game was played and stay for a short while after the game ended and the crowds cleared out. However, this ticket holder couldn’t lawfully stay in Gillette overnight. Nor could he or she leave the stadium and then try to re-enter the day after. If they entered without permission, they would be committing the crime of trespass. The ticket only provided access for a specific event: the Patriots-Chiefs game played on Oct. 14, 2018.
The fact that the ticket is revocable is also very important. Like other teams, the Patriots require ticket holders to adhere to a fan “code of conduct” during games. The code of conduct is designed to create a safe, comfortable and enjoyable experience for ticket holders. According to the Gillette Stadium code of conduct, ticket holders are prohibited from:
•Exhibiting behavior that is unruly, disruptive, irresponsible or illegal in nature
•Using foul, abusive or offensive language or making obscene gestures
•Interfering with any ongoing event, business activity or the enjoyment of others
•Engaging in public drunkenness
•Verbally or physically harassing any of our guests or staff
•Engaging in solicitation
•Smoking (Gillette Stadium is a non-smoking facility)
The code of conduct also dictates that those in violation can be ejected without refund—meaning the Patriots can exercise their right to revoke the license without any accompanying compensation. The team also has the discretion, but not obligation, to deny unruly fans from ticket privileges for any and all future events at Gillette Stadium. Future events not only include upcoming Patriots games, but also New England Revolution soccer games and concerts with major performers (over the last few months, Taylor Swift, Jay-Z and Beyoncé, Kenny Chesney and Ed Sheeran have all performed at Gillette).
The 21-year-old fan from Mansfield is not the first spectator to receive a lifetime ban from a sports and entertainment venue. Back in 2004, Detroit Pistons season-ticket holder John Green was permanently banned from attending Pistons home games because of his instrumental role in the “Malice at the Palace” incident. Green, you may recall, was the fan who tossed a plastic cup of Diet Coke onto Indiana Pacers forward Ron Artest. Safe to say Green caught Artest at the wrong moment. Artest had just scuffled with Pistons forward Ben Wallace and emotions were running high. Artest lay on the press row, in part to calm himself down. However, after being hit in the chest with the cup, Artest lost his temper and then charged up to where fans were seated. Artest then attacked a person who he thought was Green but wasn’t. This spurred chaos in the Palace at Auburn Hills and a riot-like environment, with fans and players fighting one another.
Closer to Gillette, the Boston Red Sox permanently banned a fan from Fenway Park last year after the fan directed a racial slur toward another fan during a game between the Red Sox and the Baltimore Orioles. In a game played between those teams a night earlier, Orioles centerfielder Adam Jones was targeted by a fan who allegedly hurled racial epithets and also threw a bag of peanuts at Jones (he missed). The fan would be ejected from Fenway.
Famous athletes and even team owners can also be banned from games. In 2017, retired New York Knicks star Charles Oakley accepted a one-year ban from entering Madison Square Garden as part of a negotiated plea deal with prosecutors. Oakley had faced misdemeanor charges after an incident in a Knicks-Los Angeles Clippers game during which Oakley and MSG security clashed. The incident began after Oakley tried to heckle Knicks owner James Dolan, with whom Oakley has a long-standing feud. Perhaps the most consequential ban of a person from a sports venue came in 2014. This was when NBA commissioner Adam Silver permanently banned Donald Sterling for racist remarks. At the time, Sterling owned the Los Angeles Clippers. Silver’s ban forbid Sterling from attending any NBA games, irrespective of venue.
If a team owner can be permanently banned, then certainly a beer-throwing fan can as well. The Patriots are well within their rights to ban this fan from a private facility that is accessible only to those with a license to enter.
Enforcement of a stadium ban will be easier said than done
It’s one thing to ban a fan. It’s another to effectively enforce that ban.
Consider that Gillette Stadium seats approximately 67,000 fans and that every Patriots home game has sold out since 1994. The Patriots employ scores of game-day workers to process tickets upon fans entering Gillette. Will those workers “be on the lookout” for the beer-dousing fan? In theory, sure, that’s possible. Reality tells a different story. It’s unlikely the workers will be scrutinizing the faces of entering fans to see if the beer-dousing is one of them. Such an expectation seems unrealistic on a number of levels, including that it would be time consuming. Also, through altering his appearance, it might not prove especially difficult for the fan to circumvent. The fact that the fan is only 21 years old is also meaningful: As he ages, he’ll look less and less like the 21-year-old who idiotically doused beer on an NFL player in 2018.
That said, the Patriots will do what they can to enforce the fan. In a piece last May, SI’s Chris Chavez detailed the ways in which teams can enforce bans. They include facial recognition software and flagging the credit card used by the fan to buy the ticket (yes, a banned fan could get around the credit card trace by simply using a different credit card).
The fan’s criminal charges and resulting life consequences
The banned fan may be disappointed to know that he will never again see Tom Brady throw a pass at Gillette—at least not in person—but a far more life-altering consequence of his reckless behavior is that he has been charged with two crimes: (1) disorderly conduct and (2) throwing or dropping objects at sporting events.
Under Massachusetts law, disorderly conduct refers to intentionally engaging in disruptive behavior that alarms and provokes others. Intentionally and unreasonably hurling objects in a populated area and doing so in a way that annoyed and disturbed at least one person would count as a form of disorderly conduct that “disturbs the peace.” All of those factors were apparent with the Gillette beer-hurler. As to throwing objects at a sporting event, it refers to anyone who willfully throws any object at a sporting event with the intent to injure another person. Assuming the right person has been charged, it seems likely the fan is culpable under the law.
It’s unlikely this fan will go to jail or even go to trial. A first charge for disorderly conduct normally carries a penalty of a $150 fine. While throwing objects at a sporting event carries up to a $500 fine and incarceration in jail of up to a year, it’s far more likely that the fan reaches a plea deal with prosecutors where he does not go to jail. Instead he’ll likely pay a fine and perhaps suffers some accompanying penalty, such as required community service or probation.
The more lasting effect of these charges will be that the fan has a criminal record. Such a record could lead to more severe penalties should he get in trouble with the law again. Also, if he ever has a child custody dispute, his record could adversely affect his access to children.
A criminal record will also impactful in other aspects of his life. If this fan is employed, his employer might consider terminating his employment due to the embarrassment of the employee’s conduct at Gillette. Or, if this fan—who is 21 years old—is still in school, his university might review whether its own code of conduct is implicated.
Also, once the fan’s name inevitably becomes public—as it will in court—he will become “that guy.” His record and reputation will be instantly detectable by potential employers through a Google search. He will always have to explain his decision to douse someone else with beer. In some ways that is the worst penalty he faces and one that won’t ever go away.
Some have noted that Hill is hardly the NFL’s most admirable player. As detailed by SI’s Jonathan Jones last year, Hill committed a heinous act while he was a student at Oklahoma State University in 2014. Hill hit his pregnant girlfriend in both the stomach and in the face, and also strangled her. He would plead guilty to domestic assault and battery. While Hill’s background raises serious questions about his character, those questions are not in any way legal defenses for the fan. Stated simply, the fan had no right to pour beer on anyone. Hill’s dubious background is a red herring in terms of the fan’s conduct.
The fan should be relieved that he was not charged with more serious offenses. Dousing someone with beer could be construed as assault and battery. An assault and battery charge would reflect intentionally and without consent touching a victim in a way that causes bodily harm. Such a charge can lead to a jail sentence of up to two-and-a-half years. Had the fan hit Hill’s eyes with beer, it’s possible he could face a higher charge.
Hill could sue the fan and the Patriots, but probably won’t
To the extent Hill wants to “send a message,” he could sue the fan for assault, battery and intentional infliction of emotional distress. Hill could argue that he was intentionally attacked by a dangerous fan and that the experience caused him severe distress.
Such a lawsuit would probably prove more symbolic than anything. For one, it doesn’t seem that Hill, who remained in the game, suffered any physical injuries. For another, it’s unclear if the fan would have the financial wherewithal to pay the kind of civil judgment that Hill—who signed a four-year, $2.6 million contract in 2016—would regard as sufficient justification for spending his limited time on pursuing a lawsuit. Does Hill really want to travel to Massachusetts to pursue a lawsuit against a random 21-year-old guy? Probably not.
Hill could also sue the Patriots on the theory that the team’s security was negligent in permitting a fan to throw beer on a player. Hill could assert that stadium security and beer vendors should more aggressively monitor the alcoholic intake of fans and also more strenuously warn fans that throwing objects at players or otherwise onto the field carry severe punishments. Essentially, Hill would claim that fans weren’t deterred by giving players the middle finger and throwing beer because the Patriots were passive in securing players from unruly fans. Also, if Gillette Stadium is designed in a way that gives fans unusually close access to players, Hill could argue the Patriots have failed to adequately protect players.
Like with the possibility of Hill suing a fan, don’t expect him to sue the Patriots. In order to win such a lawsuit, there must be a finding of damages. Hill, who caught seven passes for three touchdowns and 142 yards, doesn’t seem to have been injured.
It’s also not clear the Patriots did anything wrong. As of now, there is no known track record of fans in Gillette trying to throw things at players—at least not at a rate higher than fans in any other NFL stadium. Also, in every NFL game, there will be unruly and drunk fans. That is not a good thing, and stadium security should take steps to remove those fans. However, to expect teams to catch every unruly or drunk seems unrealistic. To that point, it’s not clear if the beer-dousing fan engaged in conduct prior to his beer toss that should have triggered warning signs for Gillette security.
The NFL and NFLPA could investigate the incident
The possibility of the NFL investigating the Patriots for an unusual circumstance is a possibility that Patriots fans know all too well. This occurred in Deflategate and led to suspicions that the NFL treated the Patriots more harshly than it would have any other team implicated in a scientifically dubious and evidence-lacking plot to slightly under-inflate footballs.
Still, the NFL may demand from the Patriots a cogent explanation as to what happened. NFL teams are obligated to provide players with a safe environment. Further, the Patriots’ own fan code of conduct makes clear that “fans who consume alcohol are encouraged to drink responsibly.” The team values the safety of fans not only while they are at the stadium, but also after the game, when fans should drive home sober.
The league, as well as the NFLPA, could also wonder what, if anything, the Patriots did about the fans that gave Hill the middle finger. While being the recipient of a middle finger obviously didn’t harm Hill, it highlighted that these fans felt empowered to act as they did. That kind of mentality could help to explain why someone sitting next to the middle-finger-giving fans would have felt entitled to throw beer on a player. None of them were deterred.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.