Two fans of Madonna, Michael Felows and Jonathan Gedden, in New York, filed a lawsuit in Brooklyn federal court against the pop star for delaying the start of a concert as part of her Madonna’s Celebration tour, which took place at the Barclays Center on December 13, 2023.
The announcement stated that the show would start at 20:30, but the artist did not take the stage until after 22:30. Fans complain that the next day they “had to get up early to go to work”.
When two concert-goers left the concert after 1 a.m., they were “left to fend for themselves in the middle of the night” and “faced limited public transportation and increased private transportation costs,” the lawsuit says.
The late ending of the evening concert also affected their ability to “take care of their family responsibilities the following day,” according to the lawsuit.
The two fans accuse Madonna, the Barclays Center sports arena where the show took place, and the tour promoter Live Nation of “unfair, deceptive and/or misleading trade practices” in delaying the concert start time, which they claim is a breach of contract (note: this is an oral contract of adhesion, when a spectator purchases a ticket and enters into a contract for the provision of entertainment services by the event organizers).
The lawsuit claims to be a class action, including Madonna’s next two concerts in New York.
Later, these fans withdrew their individual claims and filed a class action lawsuit on behalf of all attendees of Madonna’s Celebration shows, which began late on December 14 and 16, 2023, at the same Barclays Center.
Such delays are far from uncommon in the world of live events, where many factors simultaneously affect the course of the event, from purely human to technical failures and problems.
We decided to find out how the Ukrainian consumer of entertainment services, such as concert events, is protected, including in case of a concert delay? Are there any objective reasons for delaying a concert that relieve both the artists and the organizers of responsibility? What should the audience do legally if there is a delay? What do they have the right to demand from the organizers?
As it turned out, Ukrainian legislation does not provide for the liability of the organizer/venue/artist for the delay of a concert event and does not define the mechanism for the audience (hereinafter referred to as consumers) to receive any compensation for the delay of a concert event.
However, we should not conclude that the audience has no rights at all.
Contract of adhesion
When a consumer buys a ticket to a concert event, he or she enters into a contract of adhesion with the organizers (Article 634 of the Civil Code of Ukraine). Its essence lies in the fact that the terms and conditions are predetermined, and the consumer can either agree to them or simply not buy a ticket. The fact of purchasing a ticket means acceptance of the terms and conditions of the event, including the time of the event.
The organizers must specify in detail what the consumer can and must do, as well as what rights and obligations are provided for the organizer, so it is advisable to familiarize yourself with the rules/conditions for attending a particular concert in advance (on the website or in the consumer corner). Of course, if the terms and conditions set by the organizer violate the law, according to the Civil Code, the consumer is not obliged to comply with them.
In such an adhesion agreement, the organizer specifies the rules for returning tickets. Pursuant to Article 10 of the Law of Ukraine “On Consumer Protection” and Section X of the Instruction on Ticketing in Theater and Entertainment Enterprises and Cultural and Educational Institutions, consumers have the right to return pre-purchased tickets in the event of a concert cancellation, postponement or change of the event. Refunds to visitors (spectators) are made by the organizers of the event upon presentation of an identity document (passport, military ID, student ID, driver’s license, service ID).
It is worth noting that only ticket prices are refundable. Paid organizational fees or ticket delivery, if ordered, are not refundable. Also, the organizers may set other restrictions on ticket refunds that do not contradict the law. Accordingly, these funds are not included in the amount of the refund.
Algorithm for refunding tickets and money paid for them
1) To return tickets, you need to find out who the organizer of the event is, and it is to them that you should apply for a refund.
2) You need to write a written application in 2 copies. The application must be accompanied by a ticket, check, passport data (sometimes copies are requested, but this is not necessary). The first copy is provided to the organizer of the event, and the second copy, which remains with the consumer, is marked with a note of acceptance of the application. If they refuse to accept the written application, you can send it to the postal address of the event organizer by registered mail with acknowledgment of receipt or to the organizer’s email address. In this case, the consumer will have documentary evidence of the fact of sending and/or delivery of the application to the organizer.
3) If the purchased ticket was a “promotional” ticket and you are refused a refund for such tickets, this is a violation of applicable law. The funds for “promotional” tickets are obliged to be returned in the usual manner.
However, in accordance with Part 6 of Article 10 of the Law of Ukraine “On Consumer Protection”, the contractor is not liable for non-fulfillment, delayed fulfillment or other improper fulfillment of the obligation and defects in the work performed or services rendered if he proves that they arose through the fault of the consumer or as a result of force majeure.
If the business entity, i.e. the organizer, refuses to satisfy your legitimate claims, you have the right to file a corresponding application with the court.
To provide the refund service, the event organizer may engage a relevant contractor – a ticket operator, theater box office, etc., or make refunds independently after receiving order data from such a contractor.
The respective contractor shall make refunds on the terms and conditions set by the organizer. It should be understood that such a contractor is an intermediary in the sale of tickets to events and does not have the right to make decisions on financial issues in consumer requests independently (without the participation of the organizer).
If the organizer, in turn, has determined in the management agreement that the refund of tickets is the responsibility of the relevant contractor, then the application for a refund of tickets referred to above should be sent to such a contractor.
Thus, we can see that the organizer’s liability may arise only in case of cancellation, postponement or change of the concert event/event, but no liability for delay in holding the event is envisaged.
Relationship between the concert organizer and the venue
According to clause 3 of the Cabinet of Ministers Resolution “On Approval of the Procedure for Organizing and Conducting Touring Events” No. 35 of January 15, 2004, touring events are conducted by organizers on the basis of agreements concluded in accordance with the law with touring artists, owners (authorized bodies or persons) of stationary stage venues and other enterprises, institutions and organizations.
Such agreements may stipulate, by agreement of the parties, liability for the delay of a concert event, which, in turn, affects the increase in the leased time of the respective venue. As a rule, this is monetary compensation. However, with regard to compensation to consumers of such a concert event, the parties to the agreement usually define general provisions stipulating that if consumers file complaints regarding the quality of service, the parties shall consider and resolve such complaints in accordance with their area of responsibility. For example, if it was stated on the poster that the concert would be live, but a phonogram was used, this is a matter of responsibility of the concert organizer, and if a person suffered injury or property damage due to a malfunction of the hall/venue structures, this is the area of responsibility of the venue, respectively.
In other words, it can be concluded that the law only establishes requirements for the conclusion of relevant agreements with the indication of essential terms (subject matter, cost, rights and obligations, etc.), but does not establish mandatory liability for the delay of the concert.
Protection of consumer rights
Pursuant to Article 22 of the Law of Ukraine “On Protection of Consumer Rights”, the protection of consumer rights provided for by law is exercised by the court. Every person has the right to apply to court for protection of their violated, unrecognized or disputed rights, freedoms or legitimate interests, in accordance with part one of Article 4 of the Civil Procedure Code of Ukraine.
Therefore, if a consumer believes that the delay of a concert event has violated his or her constitutional right, namely the right to respect for his or her dignity (Article 28 of the Constitution of Ukraine), as well as the rights guaranteed by the Law of Ukraine “On Protection of Consumer Rights”, the consumer may file a claim with the court.
However, it is worth noting that we have not found any precedents in the Ukrainian court practice regarding the consideration of cases concerning moral and/or material compensation to a consumer for the delay of a concert event.
To summarize once again, if we talk about the legal relationship between the consumer as a recipient of entertainment services (concert event) and the organizer providing such services, then by purchasing a ticket, the consumer:
1) agrees to the terms and conditions of the concert event service, which are set by the organizer in the adhesion agreement;
2) the fact that the consumer came to the concert and passed the ticket control indicates that the consumer has agreed to the terms of service (concert) that arose at the time of the provision of such services (for example, delay of the concert for various reasons) and, accordingly, the consumer has thus accepted entertainment services from the organizer, regardless of whether he waited for the concert to start and stayed until the end of the event or left the venue in the middle of the concert (i.e., in the middle of the process of providing services by the organizer).
Therefore, when applying to the court for consumer protection regarding the delay of a concert, it should be understood that the court will consider all the circumstances and provide relevant evidence to establish the fact of a violation by the organizer, which is very problematic in the case of a delayed event.
concert delay / copyright / intellectual property / responsibility / ticket refunds
