#FreeTheSnake or Bear the Consequences

This article is excerpted from the University of Buffalo Sport Law Forum. For more Sport Legal Analysis visit here.

The XFL is already up against a decision that will serve as a litmus test for the success of the league. Upper management has approached a fork in the road, and despite Yogi Berra’s advice, they must choose one side over the other. The consequences of this decision will forever alter the projection of the league. The issue in question: should the XFL free the snake?

The snake? Yes, the Beer Snake.  Let’s recap: February 15th, 2020, immaculate conception graced Audi Field as likeminded D.C. Defenders’ fans toiled in creation of the XFL’s first beer snake.  A beer snake comprises of empty beer cups stacked one on top of another.  If there are enough cups, the structure begins to resemble a large anaconda.  Each week ambitious spectators sought to outperform the last game’s efforts.  The longest snake was an unofficial 1,237 cups, spanning vertically, close to nine rows.  Dedicated D.C. fans consumed an unthinkable 19,792 ounces of beer to produce the creature.  Sadly, the beer snake was laid to rest when the league folded mid-season.  The D.C. Defenders even memorialized it in a tweet.  But, three years later, the beer snake had risen.  Scaling nine rows high, the beer snake was back and better than ever.  His return, however, was short-lived.  Security guards swooped in and repossessed the animal, removing it from its natural habitat—the stands of Audi Field.  Disaffected fans took to arms in revolt.  Equipped with the lemons served to them with their drinks, Defenders’ fans rained lemons onto the field, in rebellion.  Chants of “Free the Snake” could be heard on the broadcast.  The aura of the stadium was passionate but not agitated or riotous.  Perhaps it was the palpable passion exuded by the fans that fueled the Defenders’ on-the-field comeback.  A short pick-six caused the stadium to erupt into jubilation.  Drinks were flung into the skies, celebrating the score and drenching their compatriots.  The Defenders secured the Week 1 victory through a last second goal-line stand.  The raucous fans were the virtual embodiment of the 12th man on the field for the final stop.

A visual representation of the beer snake made during the 2020 XFL season.

So, should the XFL free the snake?  This question has more weight than you might think.  The XFL must decide who it is.  Is it a league of legitimacy, settling its foothold as a minor league to the NFL?  Or is the XFL still committed to its original vision of a fan-focused league?  Additionally, what risks does the league open itself up to if it does not crack down on fan behavior?  I’ll spell out the legal ramifications that go into this decision and why the definitive answer is to #FreeTheSnake.

First, why would security even take away the beer snake?  Simply, they want to avoid legal liability stemming from an injury. Extinguishing escalated inebriated behavior, much like a fire extinguisher used on a growing fire, is a tactic used to protect attendees from injury.  Stadium security must act to avoid injury or face potential liability—and possible problems with insurance carriers.

There is varying protection depending on the classification of the visitor under premises liability law.  The three classifications are trespasser, licensee, and invitee.  Attendees, who have legally purchased and entered the premises, at a sporting event are considered invitees.  Invitees are typically customers who the premises’ owner is soliciting business from; therefore they are afforded the most legal injury protection.  The possessors of the land have the duty to protect invitees when they:

  • know or by the exercise of reasonable care would discover the condition; and
  • realize that it involves an unreasonable risk to such invitees; and
  • should expect that [invitees] will not discover or realize the danger or will fail to protect themselves against it.”

Restatement (Second) of Torts § 343.

Fans are considered invitees and are afforded the most legal protection.

The possessor of the land is liable for the injury sustained by the invitee if the possessor, or their proxy, fails to act upon that duty.  Comment F to § 344 details the duty to police the premises.  If the character of business or past experience leads one to reasonably anticipate careless or criminal behavior, the possessor may owe a duty to protect attendees from third parties.

Drunken behavior is the kind of behavior that creates an unreasonable risk to attendees.  A recent case that illustrates the standard of care comes from Pearson v. Phila. Eagles, LLC, 220 A.3d 1154.  The Philadelphia Eagles were eventually found not liable for the assault of a Cowboys’ fan by Eagles fans in the bathroom of the stadium.  The court did consider drunken behavior to be a foreseeable risk to injury which would create a duty for security.  But, because of the circumstances of where the assault occurred, the duty was outside the reasonable scope of authority.  The basic rule is stadium security should act upon unruly drunken behavior within the reasonable scope of their authority to prevent injury.

Additionally, security may have considered dram shop liability in their decision to strip the beer snake from the clutches of the fans.  Dram shop liability laws exist in D.C. (where the game was played) and 42 other states.  The distributor of alcohol, in this case the team/XFL, bears some liability if the inebriated patron goes on to injure themselves or others.  Event insurance can cover some but not all liability that results from the actions of drunk patrons.

Consequently, the stadium security acted to avoid premises and dram shop liability for the team and the league. Evidence of the crowd’s excessive drunkenness laid across their shoulders in the form of empty cups.  In reaction, security believed there to be a potential for injury resulting from the collective intoxication.  Perhaps to prevent riotous behavior from this group of inebriated people, united under a common purpose, or perhaps to disincentivize the further consumption of alcohol, the stadium security decided the beer snake was going back into retirement.

The SEC has recently lifted the ban on the sale of alcohol in the stadium but does not permit the sale of alcohol after the 3rd Quarter.

Does that mean it would be better for the league to not #FreeTheSnake?  Justifiably, the XFL can continue the Week 1 standard and have security dissolve the formulations of beer snakes.  This decision is great for the league because it avoids potential liability from escalated inebriated behavior and sets a professional tone for the league.  Additionally, the XFL may not prefer to attach its brand to that behavior.  Some teams, like the San Francisco Giants, prefer to not have a rowdy culture in the stands.  Their Senior Vice President has implemented psychological amenities to their ballpark to create a serene environment that makes it more unacceptable to act out.  By remaining anti-beer snake, the XFL establishes itself as a fundamentally serious league, which may aide future deals with the NFL.

However, the correct answer, unequivocally, is to #FreeTheSnake.  While it is the smart decision to reduce legal liability, the XFL would lose its soul in the process.  As its main selling point in 2001 and again in 2020, this league was created for fans.  It was an alternative to the corporate machine of the NFL.  If the NFL is the “No Fun League,” the XFL was the “Xtra Fun League.”  The innovations to the game and television production were designed to create a better, more fan-friendly product.  It was important, especially for the 2020 reboot, to create an intimate fan experience.  It would be antithetical to the brand of the XFL to deny the beer snake.

Continuing, the XFL has to know who its target market is.  Is the league’s goal, and thus its identity, to create a product legitimate enough to be bought out by the NFL and transformed into a minor league?  Or, is the XFL honest in its pursuit to create a fan focused, spring football alternative, to satiate the appetites of football-starved fans?  It cannot do one without sacrificing the other.  The product fundamentally transforms depending on who it is intended to be sold to.  Where is the payday coming from; an eventual buy-out from other billionaires, or incrementally, through the sale of the gameday experience?  A league that seeks to market its product to the fans would support the beer snake.  For if it is the experience they are selling, nothing is more memorable or enjoyable than a unique tradition.

It is fair to ask, why is a fan focused league inherently better than one seeking to increase its own value?  To answer, let’s look into what a successful sport organization is.  However, it is difficult to define what a sport organization even is.  The players change, the coaches change, the front office changes, the owners change, and sometimes the team itself moves.  So, why would anyone even root for a particular team?  What exactly are they rooting for?  These paradoxes are answered by what represents the team.  The fan.  It is the fan that stays with the game longer than the franchise quarterback.  It is the fan that coaches from the couch longer than the ones do on the sideline.  It is the fan that outlasts regime change after regime change.  It is the fan, through his loyalty, that creates the value of the team.  Without him, without that trust and good will, the team is valueless.  With no one to watch or sell tickets to, the team is nothing.  In essence, the fan is rooting for himself.  He roots for the embodiment of the value he has created.  It is the reason that fans use “we” when speaking of the team they love.  The savvy sport organization reciprocates that value.  But for when the fan is ignored, the organization stagnates, failing to ever generate what is truly possible.

Pictured left is the late Pancho Billa who embodied the indomitable Buffalo spirit in his courageous battle with cancer.

To reach the great potential of an alternative to the NFL, the XFL must free the snake.  But, this choice does not necessarily have to result in lawsuits.  Premises liability law and dram shop liability law does not necessitate the removal of the beer snake.  As an alternative to shutting down the fans having fun, the stadium security personnel can direct more guards over to the section holding the snake.  Upon any raucous behavior from that section, security can relocate disruptive attendees to another part of the stadium.  Additionally, Audi Field can shut down alcohol purchases at an earlier point in the game.  Finally, not serving drinks that contain throwable objects (lemons) will greatly reduce liability.  These solutions can save the beer snake—which proves the XFL values their fans as their true target market—all without enduring pesky legal liabilities.

#FreeTheSnake went viral on Twitter during the Defenders-Sea Dragons game.  The hashtag was a message to the league and a rallying cry to likeminded fans.  Fortunately, the XFL may have listened.  There are hints that the XFL may be in favor of freeing the beer snake.  The main Twitter account for the XFL has been subtly liking mentions of the beer snake by various accounts.  Perhaps the XFL is rightly willing to accept that the beer snake is here to stay.

Ian Wojcik
Law Student at the University of Buffalo

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