Waiver exception?
X's father was a fan of a team from the state of TX, but his father never lived in Texas, and said father had never even been to Texas prior to his 30th birthday. At age 10 X moved and his choice was between the Green Bay Packers (closest by proximity) and The Detroit Lions (within the state). At age 12, X pledged allegiance to a team with the worst all-time winning percentage, never had a winning season, had never made the playoffs, and were 5-11 the previous year. His first purchased article of clothing for any sport (college or pro) was for said team after they finished last in the NFC West his first year as a fan.
Discuss.
Analysis:
The rule of bandwagoning states that in order for fandom to attach, S must have inherited a team from his father, or chosen a team prior to the age of 12 based on geographic proximity. In this instance, the father could have passed loyalty of a Texas team to petitioner, because bandwagoning is not devisable. The rule makes no mention of inherited disloyalty, rather courts have held that even if the father shifts loyalties or abandons his team, a good faith transfer made to a male child prior to the age of 12 vests the child with legitimate fandom (Namath. v. Bishere, 1970)
Here petitioner did not inherit fandom and chose a team based on non-geographic criteria. The valid defenses against bandwagoning are the obscurity of the team, and the relative success of the team in question. In addition, X must show an unwavering, lifetime loyalty to the same team if chosen from outside his home market.
Obscurity:
The Saints of the 1970s were one of the least successful, least popular teams in the NFL. Although "lovable loser" defenses in and of themselves are rarely successful, the obscurity of the team and size of its fan base are relevant and admissible. The Cubs rule may apply here, which is a two step analysis:
Is the team nationally popular, and
Is the teams lack of success contributory to said popularity.
Here the history shows that the Saints were both unpopular and that their lack of success made them even less popular. The defense may be valid in this instance.
Loyalty:
No evidence in the fact pattern indicates that X has ever wavered or shifted loyalties towards the Saints. Although the burden of proof is on X to create a rebuttable presumption that he did not abandon his team during the intervening period, the success of the Rickey Jackson Saints, compounded with the recent glory of the Payton/Brees Saints, indicate that X may have a rational claim to have never abandoned his team.
Conclusion:
Although X made a "jump" prior to the age of 12 that is violative of the rule against bandwagoning, X has met the criteria for the valid defense of rooting for an obscure, terrible team and never changing loyalties. X is therefore not a wagoner.