Free Beer + 2,500 Fans = Liability Concerns for Louisville University

Picture this: 2,500 fans rushing into a college basketball game bearing free beer vouchers. What could possibly go wrong? If you ask Louisville Cardinals’ Women’s Basketball head coach Jeff Walz, nothing at all. After all, Walz’s idea for boosting attendance at the WNIT semifinals game against LSU — provide free beer for fans, and they will come — worked, bringing more than 8,000 attendees to witness an 88-67 victory.

To pull it off, the coach emptied his wallet and dropped $5,000 to buy the first 2,500 beers for 21-and-over fans who attended the game at the KFC Yum! Center, the Cardinals’ off-campus basketball facility. Fans with proper ID were given a voucher for one free beer, redeemable at stadium concession stands. In an interview with the Louisville Courier-Journal, Walz noted, “We’re just trying to have a little bit of a good time here at the ballgame … Make sure you have a designated driver if you want to come and have a few [beers].”

Representatives from the university commented that there were no NCAA compliance issues that would bar the promotional move. However, though the inter-collegiate association may not prohibit the practice outright, university representatives might not be aware of the potential legal implications that come along with supporting Walz’s promotional stunt.

For starters, any potential liability for the move would almost certainly fall on the university, not Walz himself. Under the tort doctrine of respondeat superior, an employer can be held liable for the tortious acts of its employees if that employee was acting within the scope of his/her employment.[1] Under Kentucky case law, this has been described as any “acts done by others in the prosecution of [the employer’s] business.”[2]

The school was well aware of Walz’s promotion, as Amy Morgan, Louisville’s assistant athletic director for marketing, commented on the idea when the story broke on ESPN. Further, Walz almost certainly acted within the scope of his employment as a coach by publicly promoting the women’s basketball game and providing incentives (in the form of beer) to boost attendance. Lastly, it was the school selling the tickets and handing out the beer vouchers, implicitly showing approval for Walz’s idea by facilitating the stunt. Under these facts, it appears Walz’s promotion was done within the prosecution of the university’s business — Cardinals’ athletic events — making the school potentially liable for any harm resulting from the move.

In addition, like many other states, Kentucky has a Dram Shop Statute, Ken. Rev. Stat. § 413.241.[3] This law makes a liquor-selling establishment liable for injuries caused to third parties if the establishment served liquor to an intoxicated patron, provided a reasonable person should have realized that the individual was intoxicated at the time they were served. Anyone familiar with a stadium atmosphere can see the problem here. Concession stand transactions are quick by design. Further, contrary to a restaurant setting, a stadium employee serving beer has very little time to answer a difficult question: Is this person too intoxicated to be served another beer? This problem exists in any establishment where alcohol is served, but a promotion of this type encourages patrons to drink when they might not otherwise have done so, and the volume of served exacerbates the potential risk. In turn, these factors increase the possibility that one of these patrons will leave the arena and injure a third party while in an intoxicated state, exposing the school to potential liability. 

Generally, in Kentucky and elsewhere, a landowner has a duty to maintain its premises in a reasonably safe condition for those lawfully on its property.[4] However, it is common practice for athletic arenas and sports venues to issues disclaimers on the backs of ticket stubs which largely act to insulate the building owner from liability for flying balls, pucks, or other game-related objects that might take flight and cause injury. By purchasing a ticket to such an event, a fan implicitly acknowledges and agrees to the terms of the disclaimer. This waiver of these rights by a fan stems from the legal doctrine of “assumption or risk” — i.e., fans knowingly and voluntarily took the chance that they could be inadvertently injured during a sporting event, so the arena should not be on the hook for any accidents that occur.

However, a strong argument can be made that sports fans — in this case, Louisville women’s basketball team spectators — don’t assume the risk of being confronted by drunken, unruly fans. An ongoing lawsuit against the Los Angeles Dodgers demonstrates the problem. In March 2011, a spectator was attacked and beaten by unruly fans following a baseball game.[5] A civil suit is currently proceeding against the team for negligence in failing to provide reasonable safety measures to protect its fans, as well as premises liability claims.[6] A “half-off” alcohol promotion for all day games was cited in the lawsuit as a contributing factor to the disorderly conduct which caused the man’s debilitating brain injuries.

Here, the potential for abuse of Walz’s promotion is obvious: spectators could easily collect free beer vouchers from friends or other attendees and redeem them all for a night of binge drinking. Excessive alcohol consumption of this type could then produce safety concerns for attendees, exposing the school to liability in a similar fashion to what the Dodgers’ are dealing with now. 

Clearly, marketing and promotional activities are the lifeblood of boosting attendance at athletic events across the country. However, such campaigns can easily expose your organization to a wide array of potential liabilities. Accordingly, before you launch your next promotional campaign, a phone call to counsel might be in order for a cautionary review. Free beer might taste great, but the impact could be devastating.