In some jobs having a Juris Doctor degree is considered an advantage; however, attending a game at Madison Square Garden with a law degree may not be so advantageous. This is due to the “lawyer ban” imposed by Madison Square Garden Entertainment owner James Dolan.
In October, Larry Hutcher, a partner at Davidoff Hutcher & Citron LLP, was informed by the New York Knicks that his season tickets had been revoked. Hutcher, a season ticket holder for 45 seasons, was instructed by letter that he was no longer allowed to attend any Madison Square Garden Entertainment events. This includes events at Radio City Music Hall and Beacon Theater. The revocation came nine days after Hutcher filed a lawsuit on behalf of 24 ticket resellers who claimed Madison Square Garden was violating New York’s Arts and Cultural Affairs Law. Additionally, the letter asserted that the ban extended to any other lawyer at Davidoff Hutcher & Citron.
In June 2022, Madison Square Garden enacted a policy precluding attorneys from firms engaged in litigation against the company from attending events at its venues until the litigation is resolved. Natalie Ravitz, senior vice president of communications and marketing, explained, “We cannot ignore the fact that litigation creates an inherently adversarial environment, and an ancillary consequence of that is our need to protect against improper disclosure and discovery.” However, while Hutcher and his colleagues filed suit against MSG in response to the ban, the company’s method of enforcing the ban has become even more controversial.
The policy, which could potentially affect thousands of lawyers, is enforced with facial recognition technology. MSG Entertainment enlisted the help of computer software that can identify hundreds of lawyers through profile pictures on their firm’s websites and use an algorithm to sort through images and suggest a match instantaneously. Legal in New York, facial recognition technology is typically used in retail stores to identify shoplifters, airports to check in travelers, and casinos to identify cheaters. However, utilizing the technology to exclude a company’s critics is unprecedented. Adam Schwartz, a senior staff attorney at Electric Frontier Foundation, an international non-profit digital rights group, identified the enforcement as “radical.” He added, “This is punitive as opposed to protective. It sets a precedent for other businesses to identify and punish their critics. It raises the question of what’s going to come next. Will companies use facial recognition to keep out all the people who have picketed the business or criticized them online?”
MSG Entertainment’s use of facial recognition technology to exclude lawyers caught the attention of New York’s lawyer, Attorney General Letitia James. After reports of lawyers who were never directly involved in litigation against the company being turned away at events, Attorney General James’ office sent a letter to MSG Entertainment. The letter expressed apprehension that the policy might violate New York Civil Rights Law and other city, state, and federal laws prohibiting discrimination and retaliation for engaging in protected activity. Additionally, they raised concerns that the policy may dissuade lawyers from taking legitimate cases, including sexual harassment or employment discrimination claims. The letter also addressed the potential biases and false positives connected with facial recognition software, specifically toward people of color and women. In a press release, Attorney General James insisted, “anyone with a ticket to an event should not be concerned that they may be wrongfully denied entry based on their appearance.” She later urged MSG Entertainment to reverse the policy.
On January 23rd, several New York state legislators introduced a bill taking aim at MSG Entertainment’s attorney exclusion policy. The bill, spearheaded by Senators Brad Hoylman-Sigal and Liz Krueger, and Assemblyman Tony Simone, pushes for sporting events to be included under a 1941 civil rights law. Section 40-B prevents places of public entertainment from wrongfully refusing admission if they have a valid ticket; this includes theaters, concert halls, and opera houses, but does not include sporting events. Moreover, Hoylman-Sigal wrote a letter to NBA Commissioner Adam Silver and NHL Commissioner Gary Bettman urging them to sanction James Dolan for using facial recognition software to exclude courtroom adversaries and enable his “bullying tactics.”
In response to this situation, the New York Bar Association announced the launch of a group dedicated to studying the legal and ethical implications of facial recognition software. Sherry Levin Wallach, president of the Bar Association, asserts, “The use of facial recognition software to exclude members of law firms from a Knicks basketball game or a Taylor Swift concert discriminates against lawyers for doing their jobs.” Wallach added, “A law firm should be able to represent clients in a personal injury lawsuit, a dispute about concert tickets or any other legal matter without fear of retribution.”
As the public pressure bubbles, James Dolan remains steadfast in his position. In an interview with Good Day New York, Dolan addressed the policy and the controversial use of facial recognition technology. Dolan downplayed the technology, calling it “just technology.” While adding, “The real issue that’s going on here is our policy of not letting attorneys, right, who are suing us into, into our building until they are done, done suing us. When they’re done, they’re very much welcome back.” Additionally, he claimed the banned lawyers were representing “ambulance chasers” and “ticket scalpers” while accusing the politicians of jumping on the bandwagon because they “like the clicks.” After the interview, MSG Entertainment released a statement reiterating the policy.
As facial recognition technology expands, civil rights groups have expressed fear of the technology being used for malign reasons. Around the sports world, stadiums and venues have installed facial recognition technology to authenticate ticket holders’ identities and get them inside quickly. Companies cite shorter wait times, minimizing the need to touch public surfaces, and reduced ticket scalping as the advantages of utilizing this technology in gameday operations. However, while most stadiums implement the technology to accommodate spectators, as James Dolan and MSG Entertainment have displayed, this technology can also be used to exclude patrons. Additionally, it allows high-ranking officials within these venues to pick and choose who they will allow in the building. While James Dolan and MSG Entertainment appear to be the only group using the technology to exclude people from their events, what is stopping another disgruntled owner from implementing the same policy? Without state laws governing the use of facial recognition technology in these spaces, owners will maintain this power of exclusion.