(Cover image via United Twitter)
In our previous article, we covered the incident in which United forcibly removed a doctor from a plane, causing serious physical injuries. In this post, we’ll take a closer look at the legal and practical issues involved. Turning anger into action is how you protect your rights.

The rules on oversales

United clearly treated this incident as an oversale and handled it using its standard oversales procedures. First, under U.S. Department of Transportation (USDOT) rules, airlines must first seek volunteers willing to give up their seats (see 14 CFR § 250.2b). If not enough passengers volunteer to take another flight, the airline may deny boarding under certain rules, a process known as "Involuntarily Denied Boarding." Those rules must be established in advance and publicly disclosed (under 14 CFR § 250.3), and the airline must minimize the involuntary denial of boarding for passengers with so-called "Confirmed reserved space" (under 14 CFR § 250.2a).
Except for certain exceptions, passengers who are denied boarding are entitled to cash compensation under 14 CFR § 250.5.

Was this incident really an oversale?

This case was unusual. First, the oversale issue arose after all passengers had already boarded. Second, this “oversale” was not caused by too many paying passengers, but by additional crew members needing seats.
Because of these unusual facts, some people online have debated whether this incident falls under the USDOT definition of an oversale or Involuntarily Denied Boarding. My view is that the answer to that question is largely irrelevant. If it does fit the legal definition of an oversale, then United largely complied with the applicable DOT rules. If, as some argue, it does not fit the DOT definition of an “oversale,” then United may not even have been required to follow the DOT oversales compensation rules in the first place, because those provisions would not apply. In that case, United still would not have violated DOT rules. So arguing over whether this was technically a statutory “oversale” is not especially meaningful.
What we should really care about is United’s Contract of Carriage (full text here). Whether United violated its own Contract of Carriage is the core issue, and it also affects the extent of its liability in this incident.

Did United violate its own Contract of Carriage?

The Contract of Carriage defines an "Oversold Flight" as "a flight where there are more Passengers holding valid confirmed Tickets that check-in for the flight within the prescribed check-in time than there are available seats." Because the definition of "Confirmed Tickets" is fairly broad, even potentially including handwritten authorization slips issued by the airline, these four crew members may have triggered the "Oversold" condition at least before the aircraft door was closed.
But can removing a passenger after boarding still be called "Denied Boarding"? That is much more debatable. United’s argument would likely be that removing one passenger after boarding has the same practical effect as deplaning everyone and then asking all but 4 passengers to reboard. But that does not really match the plain meaning of the word "Boarding." If this does not count as "Denied Boarding," then United may have lacked a contractual basis for dragging the passenger off the plane, and may therefore have breached the Contract of Carriage. Of course, United might still try to force an argument under Rule 21 (H) (4) to cover this doctor, but that would be a stretch...

Did United have the right to call police to remove the passenger?

Although we believe United may have violated its own Contract of Carriage, unfortunately the answer to this question is still yes.
The captain is the final decision-maker on the aircraft (under 14 CFR § 91.3). In addition, the airline is also the possessor of the aircraft. The harsh reality is that if the airline tells you to leave the plane, whether it is right or wrong, you have effectively lost your right to remain onboard. What many people do not realize is that even if United was violating its own Contract of Carriage by doing so, it could still demand that a passenger leave the aircraft and ask police to enforce that demand on the basis of trespass of property. Police are not necessarily there to mediate disputes or play peacemaker; they may simply enforce criminal law and restrain the person they view as trespassing. Meanwhile, a dispute over the Contract of Carriage is civil in nature, so police generally will not get involved in that aspect. It may not sound fair, but that is the reality.

Was the passenger selection really “random”?

Many people believe the employees targeted Asians. What I am fairly confident about is that the four “unlucky passengers” were probably not selected through a truly random process. In this kind of situation, airlines generally choose the lowest-fare passengers for denial of boarding, or passengers who do not yet have assigned seats. Sometimes elite frequent flyer status is also considered. “Random” selection is not usually part of the normal airline process, so the system likely does not even have a built-in procedure to randomly choose passengers.
Different people may define “random” differently, but I do not think it is very likely that a computer truly selected these four unlucky passengers at random in this case. That also lines up with the latest internal email from Oscar Munoz, which did not say the passengers were selected “randomly.” Airlines may also prefer to remove family members together, since a couple can share one hotel room and save the airline money. It just so happened that the selected passengers were two couples; whether that was coincidence is up to you to decide. As for whether employees intentionally targeted Asians, no one can read minds, so there is no direct evidence proving or disproving that claim for now. My own sense is that United will never admit it. But in any case, I do not believe the crew’s statement onboard that the passengers were selected “randomly” was truthful; in my view, it was a deliberate attempt to mislead passengers.

What mistakes did United make here?

Employees could not raise voluntary rebooking compensation

This point is not entirely the fault of frontline United employees. United’s internal rules appear to cap the oversales compensation that gate agents can offer passengers, and that cap was probably around a $1,000 United voucher valid for one year. But if nobody accepts that offer, the airline may ultimately have to pay up to four times the ticket price in cash compensation, or $1,350, which is still a huge gap compared with a $1,000 voucher. Nobel Prize-winning economist Robert Shiller was once involuntarily denied boarding by United, and he strongly criticized United’s terrible policy of not allowing employees to offer compensation above a certain amount or bid in cash.

United’s terrible treatment of paying customers

United’s explanation was that it wanted the flight to depart on time. But when dealing with a customer who had every reason to be upset and angry, calling the police is not how an airline should treat its customers, especially when the root cause of the problem was the airline’s own actions.
And when the law enforcement officers they summoned used violent force on the plane, United employees still did nothing to stop it. That makes things even worse.

If this happens to me, what should I do?

There is a saying: police in the United States are not people you argue with on the spot. Arguing with flight attendants or airline staff usually will not lead to major consequences. But if the police tell you to do something, whether they are right or wrong, it is usually best to comply first unless your life is in immediate danger, and then fight back later through every available channel to recover both compensation and justice. Going head-to-head with police rarely helps.
What passengers need to know is that if an airline denies boarding, DOT rules require the airline to compensate the passenger in cash by at least a certain amount. If the total delay to your trip is 1 to 2 hours, the compensation is 2 times the one-way fare, capped at $675. If the delay is more than 2 hours, the compensation is 4 times the one-way fare, capped at $1,350. The airline cannot simply walk away from the situation.

Liability of law enforcement and the airline

People often see headlines about huge settlements worth millions or tens of millions of dollars from police departments, but in reality the law provides very strong protections for officers and police departments, that is, the government. Officers acting in the course of duty are protected by Qualified Immunity unless they violated clearly established law or a citizen’s constitutional rights. That makes it quite difficult to sue the individual officers or the police department successfully.
United, however, may be in more serious trouble. Although severely injuring a passenger was probably not its intended outcome, or at least not something it would ever say openly, this incident coming so soon after the leggings controversy dealt another major blow to United’s reputation. Will United face a massive lawsuit? I think that may be difficult, because the physical force was used by police, and the passenger’s failure to comply with police instructions may be treated as an intervening cause that breaks the chain of causation between United’s conduct and the injury. But lawsuit or not, in trying to save money, the airline may still end up paying heavily and damaging its reputation badly. It brought this on itself.

How should travelers respond to United?

You can click this link to support the petition and express your anger at United’s conduct.
If you have elite status with United, other airlines may “conveniently” launch Status match offers to attract frequent flyers who are deeply disappointed with United. That may be a good time to jump ship.
If you have a large balance of UA MileagePlus miles, there are many award options on United’s Star Alliance partners, so you can fly back to China without dealing with United at all. Also, United has to pay partner airlines a certain amount when you redeem that way, even if it is not much. Likewise, if you have lounge access and a choice, you can use other Star Alliance lounges instead of entering a United Club. Each time you access a lounge using MileagePlus status or a premium-cabin UA ticket, United has to pay the lounge.
If you have a Chase United credit card and are willing to make a sacrifice, canceling the card is also a way to make your protest heard.
What do you think about this incident? Feel free to leave a comment below.