Updated: Jul 20
Well, he’s back. Tom has always had a flare for the drama, and this week’s announcement was nothing short of shocking. Brady has decided to return for his 23rd NFL season to play for the Tampa Bay Buccaneers after announcing his retirement from the league only a month ago.
This news comes too little too late for the memorabilia collector who dropped $518,628 this past weekend to purchase the football that Brady threw 55-yards to Mike Evans during the fourth quarter of Tampa Bay’s NFC Divisional Round loss to the Rams.
At the time of the auction, this football was quite valuable as it was the last football Brady threw in an NFL game before retiring. All parties assumed as much. However, 24 hours later, Brady announced that his time on the field was not over, and that he will be returning as to the Buccaneers for the 2022 season.
This news leaves the question: Does this fan have any remedies now that the ball’s value has tanked, or can they get out of buying the ball all together?
The collector’s first argument might be one of mutual mistake. In contract law, a contract can be voided or rescinded if it was made upon a mutual mistake. In order to invoke the defense of mutual mistake, the collector would have to show that (1) there was a mistake; (2) that the mistake was material, meaning it was a substantial characteristic of the subject of the contract; and (3) both parties had the same mistaken belief.
In this case, the collector would argue that the substantive characteristic of the football would be that it was, at the time of purchase, considered to be the last football thrown by one of the greatest quarterbacks of all time. Both parties believed this characteristic to be true, and it was definitely the defining characteristic that drove the price up to over half a million dollars. However, at the time of the auction, this material detail was not a mistake. So, the question is, can a material mistake arise after a contract for sale is made?
In my opinion, the answer is yes as long as it is within a reasonable amount of time. Based on the auction company Lelands’ Bidding Terms and Conditions, the auction likely went past 10:00pm on March 12. After the winning bid is made and the purchaser is notified, they have 14 days to complete payment. Further, it says that it generally takes about seven days for payment to clear, and then the memorabilia is sent to the purchaser. Brady came out of retirement about 24 hours after the collector purchased the football, rendering it not the football thrown for Brady’s last touchdown ever. The purchaser probably had not yet submitted payment or their payment might not have been processed and the football certainly had not shipped. If Brady had decided five years from now that he wanted to come back to the NFL, then that reasonable amount of time would have passed. However, I think 24 hours after the sale is a reasonable time for the material mistake to take effect.
Therefore, based on the facts, the purchaser has a strong argument to void the contract based on mutual mistake.
This isn’t the first time we have seen the value of sports memorabilia change drastically after unexpected news dropped. In August of 2007, Barry Bonds hit his 756th career homerun to surpass Hank Aaron and become the MLB’s career home run champion. There had been talk for years regarding his supposed steroid use, but Bonds consistently denied the allegations. In September of 2007, fashion designer, Marc Ecko revealed himself to be the winning bidder at the auction paying a total of $752,467 for Bonds’ 756th homerun ball. Ecko later branded the baseball with an asterisk and in November of 2007 Barry Bonds was indicted by a federal grand jury for perjury. There was a lot of controversy surrounding Ecko marking the ball to discredit Bonds’ record due to the use of PEDs and the stamp quickly decreased the value of the ball.
Further, OJ Simpson’s Heisman trophy was auctioned off to help pay for his legal proceedings after he was accused of murdering his ex-wife, Nicole Brown and her friend, Ron Goldman. Tom Kriessman paid $255,000 in 1999 for Simpson’s trophy, which could’ve been worth well over $300,000 (the last six Heisman trophies sold at auction fetched an average of $340,000 with the highest amount paid for a Heisman trophy being $504,000 for Ricky Williams’ in 2019). It seems clear that the alleged homicide decreased the value of Simpson’s Heisman trophy.
The indictment of Barry Bonds and OJ Simpson’s murder charges tanked the value of the memorabilia due to the negative connotations surrounding them, conversely it is interesting to see the value of a milestone sink.
Undoubtedly the majority of football fans are excited for the return of the GOAT and we will all be savoring each touchdown pass completed by Brady, with the exception of the unlucky collector who purchased the ball 24 hours too soon.
Holly Summers is a 1L at New York Law School. You can find her on Twitter at @ProsecutieRests.