To Scalp or Not to Scalp World Series Tickets? Both Are Illegal, Says the Massachusetts State Ethics Commission

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In the fall of 2004, the Boston Red Sox made it back to the World Series of Major League Baseball for the first time since they sold Babe Ruth to the New York Yankees in 1919.  It was an unbelievably exciting time for Red Sox fans.  On October 22, 2004, former Red Sox General Manager Dan Duquette unexpectedly had two extra tickets to Game 2 of the World Series in Boston.  He called the Mayor of Pittsfield, Massachusetts, Jim Ruberto, who he knew was an avid Red Sox fan, and sold the Mayor the tickets at face value.

Some say that Pittsfield was the birthplace for baseball.  It has a historical ballpark, and a long history of association with professional baseball.  In 2004, however, the City had lost its professional-affiliated baseball team, and negotiations for hosting another professional team did not bear fruit.  Mr. Duquette was operating a collegiate team at the time in a nearby town.  After the City exhausted all other options, it started to negotiate with Mr. Duquette in November of 2004, so Pittsfield could be Mr. Duquette's team's home field for the following year.  By all accounts, that negotiation was difficult, contentious, and resulted in a deal favorable to the City.

The Massachusetts State Ethics Commission charged Mr. Duquette with violation of the Gratuity Statute, M.G.L. c. 93A, section 3(a), which forbids gift-giving to public officials for or because of an official act.  Mr. Duquette moved for Summary Decision (similar to summary judgment) based on a lack of mens rea on his part.  In his mind, there had been no gift giving at all, because the tickets he sold to the Mayor were worth exactly their face value.  Mr. Duquette could not have sold the tickets at any higher price without violating anti-scalping laws and his season ticket holder's agreement with the Boston Red Sox and Major League Baseball.  The Commission denied Mr. Duquette's motion without directly address the mens rea issue raised by Mr. Duquette.  Instead, the Commission believed that a reasonable person would have valued these tickets at approximately $2000.  The Commission relied on its Advisory Opinion 04-01, which states that buying sporting event tickets at face value may be a violation of the conflict of interest law for a public official.  The Duquette matter was apparently the first time Advisory Opinion 04-01 was applied to a private citizen in the context of a section 3 violation.   

In July of 2010, following an adjudicatory trial before the State Ethics Commission in which nine witnesses testified over two days, the Commission issued a Decision and Order.  In its ruling, the Commission decided that although Mr. Duquette and Mayor Ruberto each technically violated the statute, "it is a very close question" whether there was a violation.  The leading cases from the Massachusetts Supreme Judicial Court and the U.S. Supreme Court, Scaccia and Sun-Diamond Growers,  both held that an "inchoate proposal" could not lead to a section 3 violation.  In October of 2004, there was no negotiation between Mr. Duquette and the City.  Nothing concrete had been exchanged by the parties at the time Mr. Duquette offered and sold the tickets to the Mayor at face value.

The Commission noted that both "Duquette and Mayor Ruberto believed that they were complying with both the conflict of interest law and anti-scalping law" in buying/selling the tickets at face value.  As a result of the evidence introduced at trial, the Commission "finds that a civil penalty is not appropriate" in this case.  Robins, Kaplan, Miller & Ciresi L.L.P. attorneys Anthony A. Froio and Yixin H. Tang represented Mr. Duquette in this matter.