Sports memorabilia is a troubling thing to collect. A number of states require that some type of express warranty of authenticity accompany a sports collectible. But, as we saw a couple of months back in a class action suit against eBay, you should be careful where and how you buy such items.
Ebay had successfully defended a $100 million class action suit involving items sold on their auction site which had phony autographs. A July decision in the Fourth Circuit Court of Appeals had the effect of removing eBay as a defendant in the case:
Justice Terry O'Rourke, writing for the Court of Appeal, said Quinn was correct in ruling that eBay is not a "dealer" in autographed memorabilia within the meaning of the California Autographed Sports Memorabilia Law.ebay was charged with violating the State of California's law which requires that a sports memorabilia dealer sell goods with an express warranty of authenticity. But, is eBay a dealer? The Justice didn't believe so, and articulated an exception involving some transactions on the web that carry some pretty broad implications.
But O'Rourke said eBay is not an auctioneer in the sense envisioned by the law, because it was not the owner or consignee of the items but merely brought together the dealers and buyers. eBay, he said, "does not sell or offer to sell collectibles because it is in fact the individual defendants who sold the forged items to appellants.Keep this in mind if you feel the inclination to purchase something through eBay. And, it's also important to make certain that you have some warranty right given to you by the dealer (not eBay, but the actual seller) that the autographed collectible you want to buy is the real deal.
The justice went on to say that any action against eBay is preempted by Sec. 230 of the Telecommunications Act of 1996, which says that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
The section expressly bars any suit based on inconsistent state law.
That immunity is extremely broad, O'Rourke said, citing a 1997 Fourth U.S. Circuit Court of Appeals decision that absolved America Online from potential liability for defamatory messages posted on its bulletin boards.
And, if someone tries to sell you a prize fighter's championship belts, you might want to hold out for proof that the champ really wants to sell.