MEMORANDUM IN OPPOSITION TO APPELLANT CINCINNATI BENGALS, INC.'S MEMORANDUM IN SUPPORT OF JURISDICTION

Transcription

1 JAY DUNKELMAN, et al. IN THE SUPREME COURT OF OHIO V. Pla i ntiffs-appel lees. On Appeal from the Hamilton County : Court of Appeals, First Appellate Judicial District THE CINCINNATI BENGALS, INC. Defendant-Appellant Supreme Court Case No Court of Appeals Case No. C MEMORANDUM IN OPPOSITION TO APPELLANT CINCINNATI BENGALS, INC.'S MEMORANDUM IN SUPPORT OF JURISDICTION W. Stuart Dornette ( ) Counsel of Record John B. Nalbandian ( ) Erick K. Combs ( ) Taft, Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, Ohio (513) (513) (fax) Counsel for Defendant-Appellant Cincinnati Bengals, Inc. Janet G. Abaray ( ) Counsel of Record Calvin S. Tregre, Jr. ( ) Burg Simpson Eldredge Hersh & Jardine, P.C. 312 Walnut Street, Suite 2090 Cincinnati, Ohio (513) (513) (fax) Counsel for Plaintiffs-Appellees Jay Dunkelman, et al

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST... 1 COUNTERSTATEMENT OF THE CASE AND FACTS... 2 ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW APPELLANT'S PROPOSITION OF LAW NO. I: CONTRACTING PARTIES WHO INTEND FOR A REMEDIAL FORFEITURE CLAUSE TO EXCLUDE ANY OTHER REMEDY, INCLUDING ANY AVAILABLE AT COMMON LAW, MUST SPECIFY THAT EXCLUSION IN THE LANGUAGE OF THE CONTRACT CONCLUSION CERTIFICATE OF SERVICE

3 STATEMENT OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST This is the second time the Bengals have appealed to this Court in this case. See Dunkelman v. The Cincinnati Bengals, Inc., Case No , on appeal from the Hamilton County Court of Appeals; No. C ("Dunkelman 1") As in the first appeal, this case presents no issue of public concern or great general interest. The Bengals just simply refuse to accept the Court of Appeals' interpretation of the terms of the governing contract in this case. The Court of Appeals and the Trial Court have both ruled that the Club Seat Brochure is the governing contract in this case, and that under its terms Plaintiffs are not obligated to purchase club seat season tickets for a period of years. Instead, it is now well settled that Plaintiffs contracted to purchase seat licenses, which gave them the right to buy club seat season tickets. Both courts have held that under the clear and unambiguous terms of the contract, Plaintiffs had the right not to purchase season tickets and could exercise this right by forfeiting their seat license back to the Bengals, who would in turn sell it to someone else. The Bengals appeal to this court for one reason only--once again they refuse to accept the Trial Court's and the Court of Appeals' interpretation of the contract as a matter of law. Realizing that the Club Seat License Agreement ("CSLA"), a document the Bengals have always relied on, is unenforceable, and that this Court would denied jurisdiction to hear that argument, the Bengals have invented a new theory-that the Court of Appeals' second opinion presents a unique question of exclusive remedies. This is simply a smokescreen. There are no new issues in this case as the Bengals would have the Court believe. This second appeal presents the same facts and same legal issues concerning basic principles of contract law. And the mere fact that Plaintiffs

4 represent a proposed class, or the fact that Paul Brown Stadium is involved, does not necessitate this Court's review. As it did in Dunkelman!, this Court should once again decline jurisdiction to hear the Bengals' appeal. COUNTERSTATEMENT OF THE CASE AND FACTS This case is and always has been about the Bengals' attempt to force Plaintiffs to purchase tickets they did not want and were not contractually obligated to purchase. The Bengals' vehicle for doing so was a document they refer to as the Club Seat License Agreement ("CSLA"). The CSLA contained all sorts of unilateral provisions, including an arbitration, default, and acceleration provision that Plaintiffs never saw, never signed, and never agreed to at the time they entered into the actual contract with the Bengals to purchase club seat licenses. Because these provisions were never included in the Club Seat Brochure, the Trial Court and the Court of Appeals have both held that the Bengals cannot force Plaintiffs to pay for up to 10 years of season tickets. Although, the Bengals argued strongly at the outset of this case that the Club Seat Brochure was not the contract, and that the CSLA governed, they have now changed their argument after this Court declined jurisdiction in the first appeal, Dunkeman I. Now, the Bengals argue that the Club Seat Brochure itself obligates Plaintiffs to pay for up to 10 years worth of season tickets. In doing so, the Bengals misrepresent the facts of this case. However, the true facts have been documented in the record, have been accepted by the Court of Appeals, and are as follows. In the late 1990s, the Bengals mailed to fans a brochure offering to sell club seat licenses for Paul Brown Stadium. The seat license gave fans the right to purchase season tickets for specific seats in the club section of Paul Brown Stadium. The 2

5 brochure was entitled, "CINCINNATI BENGALS CLUB SEATS." It contained seventeen "Charter Ownership Rules & Regulations," a color diagram of the stadium indicating the location of club seat areas, and provided pricing information for club seat licenses and club seat season tickets. T.d. 2, Ex. A. According to the brochure, fans could purchase club seat licenses for up to 6, 8, or 10 years. The seat license gave fans the right to purchase season tickets for the respective period of time. At the end of the selected term, club seat license holders would lose the right to purchase club seat season tickets and would be required to purchase a new license at a new price if they wanted to continue to purchase club seat season tickets. Nowhere did the rules and regulations state club seat license holders were obligated to continue purchasing club seat season tickets during the 6, 8, or 10 year period. Instead, the Charter Ownership Rules and Regulations, specifically Rule 12, provided that failure to purchase season tickets during the selected term would result in forfeiture of the club seat license or the COA.1 Thus, the brochure established that club seat license purchasers could elect to forfeit their club seat license and their corresponding right to purchase club seat season tickets at any time, at which point the Bengals would be entitled to sell the seat license and corresponding season tickets to another fan. Nowhere in the Rules and Regulations was there a default or acceleration provision, despite numerous other rules and ample space and opportunity to include such language. Attached to the brochure was an application for club seat licenses. To become a club seat license holder, fans were required to pay $150 per club seat license, sign an '"COA" stands for "Charter Ownership Agreement." license. The COA is just another name for the club seat 3

6 Authorization of acceptance of the offer, and return the signed Authorization and the payment for the club seat licenses to the Bengals. The Authorization read: "Authorization: The undersigned has read the Rules and Regulations provided with this application, understands them and agrees to be bound by them." It also contained a signature line and a line for the date of the signature. T.d. 2, Ex. A. Appellees all received the Bengals' brochure and offer to purchase seat licenses, read the Rules and Regulations governing the purchase of seat licenses, acknowledged their agreement to be bound by the Rules and Regulations by signing the Authorization, and paid their Club License payment of $150 per club seat license. T.d. 13. By doing so, Appellees accepted the Bengals' offer, and the contract was formed. Despite the fact that a contract had been formed, the Bengals unilaterally created a new document, which the Bengals allege was mailed to Club Seat purchasers after they agreed to the Rules and Regulations set forth in the Club Seat Brochure. This document entitled, "Terms of Club Seat License" is referred to by the Bengals as the Club Seat License Agreement ("CSLA")2 and contains terms that materially contradict the contract with Appellees and other Club Seat License purchasers. T.d. 2, Ex. C. This new document contained a default provision, which was not contained in the Rules and Regulations, which provided: In the event Club Patron fails to pay when due any amounts... Team, at its option, by written notice to Club Patron, may terminate the right of Club Patron to the use of the seats and all other rights and privileges of Club Patron under this License and the COAs relating to the Seats and declare the entire unpaid balance of the Club Fee immediately due and payable, whereupon Team shall have no further obligation of any kind to Club 2The Bengals reference to this document as the "Club Seat License Agreement" or the "CSLA" is misleading. As the Court of Appeals pointed out in Dunkelman 1, Appellees and the other club seat license and ticket purchasers never agreed to the terms contained in this document, never signed the document, and never exchanged consideration for the document. It is in fact not an agreement. 4

7 Patron. The foregoing remedies of Team shag not be to the exclusion of any other right or remedy set forth herein or otherwise available to Team. T.d. 2, Ex. C at 10 (emphasis added).3 This new document also contained an arbitration provision that was not included in the Rules and Regulations. T.d. 2, Ex. A. Appellees never signed this document and never exchanged any additional consideration to support its terms. Appellees and some members of the putative class purchased club seat licenses, but then exercised their right not to purchase club seat season tickets for the entire 6, 8, or 10 year term, as allowed under the Rules and Regulations set forth in the Club Seat Brochure. T.d. 13, T.d. 2, Ex. A. They chose to forfeit their licenses and their right to continue to purchase season tickets as expressly permitted by the Rules and Regulations, enabling the Bengals to resell the license and corresponding season tickets to someone else. Id. Years after Appellees had elected not to purchase season tickets, the Bengals sent letters to Appellees and other former club seat license holders identifying them as persons who had discontinued making payments on their previously purchased club seat season tickets with the Bengals, and inviting them to purchase a new club seat license at the original price. T.d. 2, Ex. E. Because Appellees had no interest in purchasing new club seat licenses, no interest in renewing their relationship with the Bengals, and no interest in selecting new club seats after having already chosen to forfeit their club seat licenses, they did not accept this "invitation" by the Bengals. T.d Of note is the fact that the Bengals went through the trouble of including express "non-exclusive remedy" language in the default provision of the CSLA, but included no such language anywhere in the Club Seat Brochure. 5

8 Shortly thereafter, Appellees and the members of the class were sent a second and very different letter from the Bengals. T.d. 2, Ex. D. This letter was carbon copied to William Stuart Dornette, Esq., counsel for the Bengals in the Reedy action and Counsel of Record in Dunkelman I and this appeal. Id. Enclosed with this letter was the CSLA. T.d. 2, Ex. A: T.d. 13, Exs The letter stated, "As you know, you are in default of your Club Seat License Agreement with the Cincinnati Bengals. This Club Seat License Agreement committed you to buy a specific number of club seats for a term through, at a minimum, the 2005 season." T.d. 2, Ex. D (emphasis added.) The letter then quoted the default terms of the alleged License Agreement, stating that the Team may "declare the entire unpaid balance of the Club Fee for the remainder of the entire original term immediately due and payable..." Id. The letter then added: "The Cincinnati Bengals expect all of our club patrons to honor their club seat commitment. After the April 16 deadline, the Cincinnati Bengals will strongly look at all available options to fulfill the Club Seat License Agreement with any non-paying accounts." Id. (emphasis in original.) This letter from the Bengals, advising Appellees and the members of the class that they were in default by exercising their right not to purchase club seat season tickets, and claiming that the Bengals had a right to enforce an acceleration clause, constituted a material misrepresentation of fact. No club seat purchaser ever agreed to the terms of the CSLA. Further, the statement by the Bengals that they "expect all club patrons to honor their club seat commitment," and the statement that "the Cincinnati Bengals will strongly look at all available options to fulfill the Club Seat License See Reedy v. Cincinnati v. Cincinnati Bengals (2001), 143 Ohio App.3d 516, 758 N.E.2d 678, a similar case involving general admission seating. 6

9 Agreement" with the carbon copy of the letter to the Bengals' attorney, were intended by the Bengals to intimidate Plaintiffs and the members of the class into purchasing club seat season tickets which they in fact had no desire to purchase and had no obligation to purchase. Some class members even bought tickets they did not want due to the threat of the Bengals. The Bengals threatened to sue Appellees and other members of the class arguing that they must pay thousands of dollars, in some cases up to $80,000, allegedly owed under the acceleration clause if they failed to renew their club seat purchases. T.d. 13, Exs Thus, contrary to Defendants' representation, Plaintiffs brought this action to put a stop to the Bengals' deceptive conduct and for a declaratory judgment that the Club Seat Brochure constituted the contract. Plaintiffs specifically sought a declaration that the terms of the contract do not obligate Plaintiffs to purchase up to 10 years worth of season tickets, because they could exercise their right to cancel their season by forfeiting the seat license back to the Bengals. The Bengals' contention that Plaintiffs brought this action to "prevent the Bengals from enforcing the term-of-years portions of their contracts"5 is disingenuous at best and misrepresents the facts at worst. The record shows there never was an obligation to purchase tickets for a term of years. The Court of Appeals in Dunkelman I agreed, stating, "This is a matter of contract interpretation-a question of law, not fact." Dunkelman v. Cincinnati Bengals, Inc. (2004), 158 Ohio App.3d 604. Refusing to accept this, the Bengals appealed to this Court asking that the CSLA be declared the contract instead of the Club Seat Brochure. But this Court declined jurisdiction, and the case was remanded back to the trial court 5 See Bengals' Memorandum in Support of Jurisdiction at p. 2. 7

10 for further proceedings. Dunkelman v. Cincinnati Bengals, Inc., 105 Ohio St.3d 1501, 2005-Ohio-1666, 825 N.E.2d 624 (Table). Upon remand, the trial court granted summary judgment on Plaintiffs' declaratory and injunctive relief claims, granted class certification, granted Plaintiffs' motion to dismiss the Bengals' counterclaims, and denied the Bengals' pending motion for summary judgment. T.d. 69. The Bengals appealed. This time, conceding the express default language in the CSLA was unenforceable, the Bengals invented a new argument that it was the Club Seat Brochure itself that obligated Plaintiffs to purchase up to 10 years of club seat season tickets. But the Court of Appeals in Dunkelman 11 disagreed, stating: The Bengals [now] argue that the Club Seat Brochure unambiguously obligated the plaintiffs to purchase club seats for a definite lease term. They argue that, under the plain language of the order form, the plaintiffs were bound to purchase tickets for the number of years they selected. The plaintiffs argue, on the other hand, that the contract unambiguously gave them the right not to purchase tickets and to forfeit their seat licenses. We agree with the plaintiffs. The express written language of Rule 12 in the Club Seat Brochure states, "Once you have purchased your COAs and the new stadium opens, you must continue to purchase season tickets for your assigned seats on an annual basis to maintain your rights. Failure to purchase season tickets will forfeit your right to the COA." Furthermore, the plain language of the authorization states, "The undersigned has read the Rules and Regulations provided with this application, understands them, and agrees to be bound by them." When the plaintiffs purchased their seat licenses, they purchased the right to purchase season tickets at a discounted rate for a specified number of years. Under the unambiguous terms of the contract, they obligated themselves to make annual payments for the club-seat tickets only if they wanted to maintain ownership of their club-seat licenses. Otherwise, they would forfeit their club-seat license to the Bengals, who would then resell them to others. 8

11 Because the contract contained clear and unambiguous language that the plaintiffs had the unilateral right to cancel their club-seat licenses by not purchasing club-seats, the Bengals argument that the "Lease Term" section obligated the plaintiffs to pay for six to ten years of club-seat tickets is without merit. We, therefore, overrule the Bengals' second and third assignments of error. Dunkelman et al. v. The Cincinnati Bengals, Inc., 1st Dist. No. A , 2006-Ohio at pp. 8-9 (emphasis added). ("Dunkelman ll") The Bengals now come to this Court for a second time in the same case, with the same issues, and same set of facts, hoping to get a reversal under a new theory. Enough is enough. The issues in this case have long been settled by the Court of Appeals in Dunkelman 1, by the trial court upon remand, and then again by the Court of Appeals in Dunkelman ll that the Club Seat Brochure is the controlling contract, and that under the contract Plaintiffs have the right not to purchase season tickets by forfeiting their seat license back to the Bengals. That the Bengals disagree does not warrant the granting of jurisdiction. ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW APPELLANT'S PROPOSITION OF LAW NO. I: CONTRACTING PARTIES WHO INTEND FOR A REMEDIAL FORFEITURE CLAUSE TO EXCLUDE ANY OTHER REMEDY, INCLUDING ANY AVAILABLE AT COMMON LAW, MUST SPECIFY THAT EXCLUSION IN THE LANGUAGE OF THE CONTRACT. The Club Seat Brochure is the contract in this case, and the express language in the Rules and Regulations allow Plaintiffs to cancel their club seat season tickets by forfeiting their seat license back to the Bengals. Rule 12 is not a remedial provision to the benefit of the Bengals. Instead, Rule 12 states the mechanism by which Plaintiffs can exercise their own right to discontinue purchasing season tickets. This is how Plaintiffs interpreted the contract, and the Court of Appeals agreed. The Bengals stand alone in their interpretation. 9

12 A. The Rules and Regulations do not obligate Plaintiffs to purchase season tickets for a term of years. By purchasing the club seat license under the terms of the Club Seat Brochure and Order Form, Plaintiffs purchased the right to buy season tickets at specified prices fixed by the Bengals. As acknowledge by the Court of Appeals, although the seat license gave Plaintiffs the right to purchase season tickets, they were never obligated to purchase the season tickets. As such, the Bengals' reference to cases defining the word "term" make no difference. The Bengals' "term of years" was not a term of the contract. Furthermore, the Bengals' argument that the only "common sense" interpretation of the Club Seat Brochure is that Plaintiffs agreed to purchase tickets for a term of years is intended to shift the focus away from the Bengals' poor drafting. It is also undercut by the fact that the Bengals initially took the position that the CSLA was the contract, not Club Seat Brochure. Consider these "common sense" questions: If the Bengals really believed the Club Seat Brochure contractually obligated Plaintiffs and the putative class to pay the Bengals for 6, 8, or 10 years of tickets, why did the Bengals feel the need to create a new contract called "Terms of Club Seat License" which purported to add an entirely new "default" provision? Why wasn't this very detailed "default" provision included in the Club Seat Brochure and Order Form in the first place? Why did the Bengals tell their patrons that they didn't have to sign the "Terms of Club Seat License" document if they believed it was a binding club seat license agreement? Why did the Bengals fail to include any language anywhere in the Club Seat Brochure indicating that by signing up for club seats, fans were obligating themselves to purchase club seats or 6, 8, or 10 years and would be in default if they forfeited their seat license? 10

13 Why would anyone believe they were still obligated to pay the Bengals for 6, 8, or 10 years worth of club seat tickets after forfeiting their seat license back to the Bengals who in turn could sell it to someone else? How can the Bengals believe they are entitled to payments for club seats that they have already resold to other fans at a higher price? If the Bengals truly believed Plaintiffs were obligated to purchase 6 to 10 years worth of club seat tickets, why did the Bengals wait until after several years after the alleged breach to send default letters to Plaintiffs demanding payment? Why did the Bengals' first letter "invite" and "offer" Plaintiffs and the putative class to buy back into the program if the Bengals believed they were already obligated to purchase the tickets? Why would anyone obligate themselves to purchase club seat tickets for 6, 8, or 10 years, regardless of whether they wanted to keep the tickets and regardless of the unforeseeable circumstances? We cannot lose sight of what really happened here. As the Court of Appeals recognized, the Bengals "tried to change the rules during the game." They sent out a colorful Club Seat Brochure marketing club seats and encouraging fans to own a piece of the jungle. They employed a scam, in which fans had to first purchase club seat licenses, which gave them the right to purchase the club seat season tickets. Then, after fans had already purchased the club seat licenses, the Bengals tried to impose onerous terms on them in a separate document that the fans never agreed to. Among these terms was the default provision specifically advising fans that they were obligated to purchase tickets for the full 6, 8, or 10 years. The Bengals even told fans they did not have to sign the new document. Furthermore, the various price terms and refundable deposit was merely an incentive to encourage Plaintiffs to continue to purchase season tickets even though they were not obligated to. The bottom line is that speculation as to why the Bengals offered three different price terms is irrelevant. As one judge on the Court of Appeals 11

14 pointed out, "While the Bengals may have intended otherwise, they were bound by the language they wrote. The rules cannot be changed once the game is over." Dunkelman Il at p. 10. B. The Bengals' exclusive remedy argument fails because it presumes that Plaintiffs are in breach of contract when they are not. Contrary to the Bengals' argument, the Court of Appeals did not cut off any remedies available to the Bengals. As the Court of appeals found in both Dunkelman I and Il, Plaintiffs accepted an offer to purchase seat licenses, which gave them the right to buy club seat season tickets, but did not require that they actually purchase the tickets. The Bengals' argument that the Rules and Regulations do not exclude other remedies available at common law is misguided, because it presumes that Plaintiffs are in breach of contract in the first place. But Plaintiffs are not in breach of contract. They contracted to purchase the right to buy season tickets and they conducted themselves within the terms of that contract. They did not, as the Bengals argue, contract to purchase season tickets for up to 10 years. Therefore, because there is no breach, the Bengals' entire exclusive remedies analysis fails. Furthermore, the cases cited by the Bengals in support of their exclusive remedy argument are inapplicable here. Goddard v. Gen. Motors Corp. (1979), 60 Ohio St.2d 41, 396 N.E.2d 761 for example involved the purchase of a vehicle under a warranty containing a provision allowing the seller to repair defects in the vehicle. Id at 44. There was no dispute as to the actual terms of the warranty in that case. Id. Here, the Bengals interpret the contract to obligate Plaintiffs to purchase the actual season tickets and that forfeiture is a remedy to failure to do so. Quite the contrary, Plaintiffs and the reviewing courts in this case view the contract as one for seat licenses giving Plaintiffs 12

15 the right to purchase season tickets-a right which the Plaintiffs could give up by not purchasing the tickets. Similarly, in David Moore Builders, Inc. v. Hudson Village Joint Venture, 9th Dist. No , 2004-Ohio-4950, there was no dispute as to the actual terms of the contract. Id. On the other hand, in Forest Park Partners Ltd. Partnership v. Ponderosa, Inc. (Oct. 18, 1996), 2d Dist. No , there was a dispute as to the terms of the contract. But the Court of Appeals in Forest Park Partners expressly stated that the trial court should have looked to other evidence to determine the parties' intent before deciding whether the specified remedy was an exclusive remedy. If the Court were to do that in this case, the depositions and affidavits of the named Plaintiffs demonstrate their clear understanding that Rule 12 gave them the right not to purchase season tickets.6 Even if there were a question of whether the forfeiture provision is an exclusive remedy, the bottom line is that the Bengals wrote this contract and could have easily included default and/or acceleration language in the Club Seat Brochure. If this was their intent, they should have made it clear in the Brochure, as they did in the CSLA that was sent later without anyone ever seeing it. But the Bengals did not. And not only did they omit such default language, but they replaced it with Rule 12, which Plaintiffs, the class members, and the reviewing courts in this case all interpret as stating exactly the opposite. The Bengals know that had they included the default or acceleration 6 See Plaintiffs' depositions, T.d Ronald Wellman testified, "I felt that I could cancel those tickets at any time." (Wellman depo. at p. 15.) When asked if his understanding was whether he would be obligated to purchase club seat tickets that were not resold by the Bengals, Keith Chabut testified, "I'm going to say no. I don't see where it tells me that on this club seat order form." (Chabut depo. at p. 20.) Edward Walton testified that before purchasing club seat licenses, he actually spoke with someone in the Bengals offce who assured him that if he decided not to renew his tickets, he was would be forfeiting his license and that nothing else would be further due. (Walton depo. at p. 13.) He further testified, "If I chose not to renew or buy tickets for another year after the first year, I no longer had any money owed and I basically just forfeited my seat license," (Id. at p. 15.) Robert and Betty Brown also testified that they understood they had no obligation to purchase club seat season tickets. (Betty Brown depo. at p. 16; Robert Brown depo. at p. 14.) Douglas Menne testified, "The club seat contract that I read, my only risk was the seat license fee of $600, whether it was six years, eight years or ten years "(Menne depo. at p. 15.) 13

16 language in the Brochure, no one would have purchased the club seat licenses, because no one would have wanted to obligate themselves to up to 10 years worth of club seat season tickets. That's what this case is about, and that's what it's always been about. There is no reason to review the decision of the Court of Appeals. CONCLUSION Appellees respecifully request that the Bengals' request for jurisdiction to appeal be denied. This case does not involve a question of public or great general interest. It involves simple principles of contract law which have no great impact on the public at large. The Court of Appeals' decisions identifying the controlling contract in this case should not be disturbed. Accordingly, this Court should decline to accept jurisdiction. Respecttully submitted, anet G. Abaray (000 Counsel of Record Counsel for Appellees 14

17 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Memorandum in Opposition to Jurisdiction of Appellant Cincinnati Bengals, Inc. was served upon the following by ordinary U.S. Mail on this the 7th day of March, W. Stuart Dornett, Esq. Taft, Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, Ohio Counsel of Record for Appellant, The Cincinnati Bengals 15