Trying The Code of Conduct

A case being heard in a San Diego court over whether the NFL has a right to enforce its code of conduct, including ejecting fans for making obscene gestures and using foul language, could potentially have implications beyond the sports world.

Jason Ensign, a Kansas City Chiefs fan, was detained by private security guards at San Diego’s Qualcomm Stadium during a Chargers-Chiefs game for allegedly yelling obscentities and flipping the bird at other fans. Ensign was charged with misdemeanor battery for allegedly punching and biting one of the guards.

San Diego Superior Court Judge Gale Kaneshiro tossed the case, ruling there was no justification for removing the fan because he had a First Amendment right to engage in obscenities and a right to defend himself.

Ensign’s attorney now wants Kaneshiro to clear his arrest record as well.

City Attorney Jan Goldsmith disagrees with both the ruling and the attempt to clear the arrest record, saying that the NFL also has a right to enforce its own code of conduct.

“The court’s decision was wrong,” Goldsmith said. “It applied the First Amendment in a way it hasn’t been applied before. The code of conduct has been in place three years. It applies in all 32 stadiums. If a fan uses obscene gestures or words, he may be removed from the stadium. This isn’t about whether one guy gets charged and convicted of battery. This about whether we’re going to set some kind of precedent.”

Mary Frances Prevost, the attorney representing Ensign, not only disputes Goldsmith’s view but offers an opinion of the fine print that appears on the back of most event tickets.

“You can’t print something on a ticket and call it a contract,” she said. “It’s not enforceable. To have a contract, you have to have an offer and acceptance. What if they said, ‘We want you to dance and do three cartwheels when you walk through the door?’ You wouldn’t have to if you didn’t want to.”

Language on the back of a recently purchased Ticketmaster stub includes in the fine print: “Management reserves the right, without refund of any amount paid, to refuse admission to, or eject, any person whose conduct management deems disorderly, who uses vulgar or abusive language, or who fails to comply with management rules. Breach of terms or rules will terminate this license without refund.”

Goldsmith supports the right of private entities – including venue management – to remove unruly customers.

“If somebody stood up at an opera and gave everybody the finger or started saying obscenities, they would be ushered out,” Goldsmith said. “They don’t have the right to beat up the fellow who ushers them out.”