Can you scalp your Washington Nationals playoff tickets?
The good news is that once again,
the Washington Nationals have made it to the MLB Playoffs! The bad news is that they have their backs
against the wall down 2-1 in the Division Series against the Giants. However, if they manage to fight back and win
the next game, they return to Washington with the home field advantage and
tickets to the remaining games will be hot!
Whenever one of the local professional sports teams reaches the
post-season, tickets to the home playoff games are all but certain to be a hot
commodity on the resale market. This raises the question: is it illegal to
resell tickets purchased from the team online for profit?
The answer to this question is
unclear to many, for good reason. If you have ever walked the streets
surrounding Nationals Park before a game, then you may recall the police
proclaiming through their bullhorns that it is illegal to resell tickets and that
violators will be arrested. You may have also looked at the fine print on your
ticket, which reads as follows:
“NO RESALE OF A TICKET IS PERMITTED
VIA THE INTERNET OR ANY OTHER INTERACTIVE MEDIA, EXCEPT THROUGH THE OFFICIAL
WEBSITE OF THE WASHINGTON NATIONALS OR SITES AUTHORIZED BY THE WASHINGTON
NATIONALS. THIS TICKET MUST NOT BE
RESOLD OR OFFERED FOR RESALE IN A MANNER PROHIBITED BY ANY FEDERAL, STATE OR
LOCAL LAW OR REGULATIONS. UNLAWFUL RESALE OR ATTEMPTED RESALE IS GROUNDS FOR
REVOCATION AND CANCELLATION WITHOUT COMPENSATION”.
This is certainly enough to deter a
cautious person from attempting to resell tickets on the Internet. At the same time, if you have ever tried to
buy a ticket online for a Nationals game, then you know there is a thriving
online resale market through websites such as StubHub, where thousands of
tickets are bought and sold for each game.
Could thousands of people be breaking the law? The short answer is that
for individuals residing in Virginia, Maryland or Washington, D.C., no, the act
of reselling tickets online is not illegal.
There is no federal law that
directly regulates the act of online ticket reselling, although federal laws do
generally regulate the manner in which electronic devices can be used to engage
in online commerce (mainly, to prevent fraud).
Ticket reselling is regulated at the state level, and in some cases, at
the local government level. The penalties for reselling tickets in violation of
the applicable regulations differ from jurisdiction to jurisdiction, and range
from small civil fines to possible jail time. In the majority of states, the
laws applicable to ticket reselling are out-of-date and were enacted prior to
the proliferation of online reselling.
In Virginia, ticket reselling is
weakly regulated by the Commonwealth. The Commonwealth defers regulatory
authority to local government per Virginia Code § 15.2-969, which provides as
follows:
Any locality may provide, by ordinance, that it is unlawful for any
person, firm or corporation to resell for profit any ticket for admission to
any sporting event, theatrical production, lecture, motion picture or any other
event open to the public for which tickets are ordinarily sold, except in the
case of religious, charitable, or educational organizations where all or a
portion of the admission price reverts to the sponsoring group and the resale
for profit of such ticket is authorized by the sponsor of the event and the
manager or owner of the facility in which the event is being held. Such ordinance
may provide that violators thereof are guilty of a Class 3 misdemeanor. This
section shall not apply to any resale of a ticket that occurs on the Internet.
Some localities, including the City
of Richmond, have incorporated this language into their local ordinances (See Richmond
Code of Ordinance, § 66-2, Scalping of Tickets to Public Events). Note, however, that the Virginia Code statute
expressly excludes ticket resale on the Internet from the statute. Accordingly, in effect, the local ordinances
are only applicable to hand-to-hand cash deals (i.e. traditional ticket
“scalping”).
The State of Maryland does not
regulate ticket reselling, other than boxing tickets. Local government does
have the ability to regulate ticket scalping, as was the case for many years in
the City of Baltimore. However, the
Baltimore City ordinance prohibiting the sale of tickets for more than face
value was repealed in 2013 in the wake of a lawsuit filed by a consumer against
Ticketmaster for charging excess service charges (See Bourgeois v. Live Nation
Entertainment, Inc., et al.). What the
future holds for ticket scalpers in Baltimore remains to be seen, but there is
little doubt that Orioles playoff
tickets will be “scalped” during postseason play.
In Washington, D.C., the legality of
ticket scalping is also in flux. A long-standing statute prohibited the sale of
tickets on sidewalks, streets and public spaces, thereby explaining the police
and their bullhorns. However, the statute
was (perhaps, inadvertently) omitted from the D.C. Municipal Code in October of
2013. Emergency legislation was
submitted to the D.C. Council in 2014 to reinstate the statute. All signs indicate that the sale of tickets
in public spaces will remain prohibited in the District, but the author of this
article was unable to confirm the status of that legislation. Regardless, the online
resale of tickets in Washington D.C. is not addressed by the prior statute.
Accordingly, in Virginia, Maryland
and Washington D.C., the act of selling event tickets through online retailers
is not, in and of itself, an illegal act. This is not the case in states like
New Jersey where ticket resellers are required to obtain a broker’s license or
face criminal liability.
That said, reselling tickets online
also presents the question of civil liability. Like the Washington Nationals
(see above), most teams and venues write on the face of the ticket that the
ticket cannot be resold. While the primary
goal of the team/venue is to deter online fraud and to keep ticket prices
reasonable for “true fans” that want to attend the games, arguably, the
team/venue is also creating a contract with the original buyer. If the original
buyer breaches that contract by reselling the ticket, the team/venue can
theoretically cancel the ticket and seek additional damages.
While such cancellation seems
unlikely for major professional sporting events, many artistic performers and
small venues actively oppose ticket reselling and do make efforts to enforce the
“contract” created by the ticket. For
example, some venues condition entry into the event upon the production of
either photo identification that matches the name on the ticket, or the credit
card that was used to purchase tickets.
To summarize, in Virginia, Maryland
and Washington, D.C., there is nothing illegal about reselling your tickets
online, provided that you do not engage in any fraudulent activity prohibited
by other laws. Furthermore, while the
team is very unlikely to take any civil action against you for violating the
“contract” created by the ticket, in theory, it could. The reality is that no
major professional sports team in the United States wants to roll back the
clock and reignite the fight against online ticket sales. Rather, the teams, including the Nationals,
are finding ways to participate in the secondary market by partnering with
ticket brokers and adopting dynamic pricing models that track consumer demand.
This article is not intended to replace
the advice of legal counsel.
