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Tom Brady [Brady] had apparently decided to retire. Lelands was selling Brady’s final touchdown football of his career. The football sold at auction for $518,628 and 21 hours later, Brady announced he was returning to play in the NFL.

Lelands’ listing noted:

If there is any item in the field of sports collectibles that needs no embellishment, it is this historic piece: the final touchdown ball of Brady’s career … one thing is certain: the opportunity to obtain a piece of football history of this magnitude may never present itself again.

It appears the buyer is obligated to pay this $518,628 since at the time of the auction, this was the “final touchdown football of his career” but now it appears quite likely it won’t be by next season. Some estimate this football lost about $498,000 in value when Tom announced he was playing again.

While Lelands certainly claims they did not misrepresent this football’s status, there are basically three types of misrepresentation: (1) Innocent misrepresentation (unaware,) (2) negligent misrepresentation (less than reasonable care,) and (3) fraudulent misrepresentation (intentional.)

Brady’s tweet following the auction (dated March 13, 2022,) said in part:

These past two months I’ve realized my place is still on the field and not in the stands.

I’ve been a longtime proponent that auctioneers should not only disclose what they know, but what they should know. Could one assume other people knew Brady wasn’t retiring after all? Was this information that could have been discovered? Were there any other indications this football wasn’t actually as advertised?

However this situation ends up, it might be a good lesson for auctioneers … to not advertise guarantees (expressed warranties) in the future unless one is absolutely sure — no different than auctioneers “guaranteeing” future profits or returns on property purchased.

Can (could) an auctioneer (and/or seller) disclaim expressed warranties? While countless auctioneers attempt to disclaim expressed and implied warranties, we hold expressed warranties cannot be disclaimed, and even disclaiming implied warranties is ill-advised.

Here is our analysis on expressed warranties: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/, and implied warranties: https://mikebrandlyauctioneer.wordpress.com/2021/09/20/auctioneers-and-when-the-circumstances-indicate-otherwise/.

Would words like “appears to be” or “thought to be” be better in situations where there is uncertainty? I well understand hindsight is 20/20 as they say, but words do matter and might make a difference as this case further unfolds.

Lastly, we all know there is risk in buying anything as there is hardly ever a guarantee of future profits. For example, we noted the sale of a 1965 Chevrolet Impala with 14 (or less) original miles which sold for $76,150 in 2013 and then sold again for only $27,500 in 2020: https://mikebrandlyauctioneer.wordpress.com/2020/01/14/1965-chevrolet-impala-sells-at-auction-again/.

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.