The Deeper Scandal of That Brutal United Video

The footage is shocking. So is the law.

Louis Nastro / Reuters

Updated on April 11, 2017

It is the “re-accommodation” heard ’round the world: A passenger on an overbooked United flight from Chicago to Louisville on Sunday night was ripped out of his seat by uniformed officers and dragged down the aisle on his back like carry-on luggage, as several horrified passengers captured video footage of his bloodied face on their phones.

Here is another account.

The incident created a firestorm online, which only intensified after United published a mealy-mouthed statement on Monday morning that seemed to blame the bruised customer and apologized only for “the overbooking situation.” After several hours, punctuating the sordid event with the least human-sounding statement in crisis-PR history, United CEO Oscar Munoz apologized "for having to re-accommodate” customers, as if the brutalized passenger had merely been asked to switch from an aisle seat.

Sometimes, a shocking controversy like this one is both freakish and representative. Indeed, this incident is both an extraordinary occurrence—overbookings are common yet rarely involve thuggish yanking—and also a dramatic reminder of the profoundly unequal, and even morally scandalous, relationship between consumers and corporations in industries where a handful of large companies dominate the sector.

But first, a few details to flesh out the story. According to one flyer, soon after the passengers boarded the flight, United announced that four of them would have to give up their seats to make room for United employees commuting to work a flight out of Louisville. After the offer was raised to $800, and nobody was willing to leave the flight (perhaps because it would require missing a full day's work without a compelling excuse), somebody from United announced that a computer would randomly select four people to leave the plane. When the man in the video, a doctor, was selected, he refused to leave his seat, saying he had to see patients the following morning. United called officers to the scene. The rest is now a matter of digital record.

Can United really do this? Legally, the airlines can turn away paying customers, and they do it thousands of times a year. Airlines often overbook flights to account for the likelihood that passengers won’t show up, and, although this can be extremely annoying, it is also legal and might even contribute to lower prices for tickets, because it increases the likelihood that planes will be filled to capacity. According to its contract of carriage, United can deny boarding on oversold flights if passengers don’t accept compensation. Here is the key part of the contract language, under Rule 25 Denied Boarding Compensation (which, notably, says nothing about forcibly removing passengers after they have boarded the plane to make room for United workers):

Boarding Priorities - If a flight is Oversold, no one may be denied boarding against his/her will until UA or other carrier personnel first ask for volunteers who will give up their reservations willingly in exchange for compensation as determined by UA. If there are not enough volunteers, other Passengers may be denied boarding involuntarily in accordance with UA’s boarding priority.

That “boarding priority” protects minors and disabled people and makes special commendation for “fare class [and] status of frequent flyer program.” In other words: Don’t worry, First Class folks, you’re safe.

It’s important to note that this is a very rare occurrence. Several sources track the number of people who are denied boarding each year in the United States due to overbooking, and they all say it is declining steadily. The share of passengers denied boarding rose until the late 1990s to about 1 in 500, but it's fallen to about one in a thousand, according to the Bureau of Transportation Statistics. According to another report, the 2017 Airline Quality Rating (released, incredibly, just this morning), involuntary denied boardings are affecting about six passengers per 100,000.

But although this incident was unusual in many respects, it was also representative of an airline industry that has considerable power over consumers—even if the use of force is more subtle than a group of security professionals wrestling a passenger to the floor.

For example, many people have pointed out that United might have avoided the entire fiasco by simply offering the passengers more money to leave the plane. By law, airlines are required to offer compensation—up to four times the value of the ticket, or $1,350—before booting customers from the flight. But a free-market solution would require the airlines to raise the compensation offer indefinitely until somebody accepted the offer. It’s a simple matter of fairness: If airlines are legally permitted to make false promises—and to overbook a flight is, essentially, to promise a service that cannot be fulfilled—they ought to pay market price to compensate people for the unfulfilled promise. Instead, airlines are permitted to practice a kind of bizarro capitalism, in which they can overbook with impunity and throw people off the plane after they reject an arbitrary fee.

Domestic airlines are now enjoying record profits, having flown more passengers each year since 2010. This is in part because the airline industry is sheltered from both antitrust regulation and litigation. Four carriers—United, Delta, American, and Southwest—earn more than $20 billion in profits annually and own 80 percent of seats on domestic flights. Along with cable companies, airlines are the top-of-mind paragon for industries that seem to get worse for consumers as they become more heavily concentrated. Indeed, when fuel prices fell last year, as The Atlantic’s Joe Pinsker (who edited this story and who has a relative who works at United) has written, airlines spent the savings on stock buybacks rather than pass them to consumers.

Meanwhile, if customers are shocked by the fine print of United’s contract of carriage, what recourse do they have against the company? Very little. In the last decade, class-action lawsuits have become endangered thanks to a series of Supreme Court rulings that have undercut consumer rights. Disputes over fine-print regulation are increasingly likely to be settled in arbitration, without a judge or jury, where the deck is stacked against the individual plaintiff and the decisions are practically impossible to appeal.

In this way, the United video serves as a stark metaphor, one where the quiet brutalization of consumers is rendered in shocking, literal form. The first thought that I had watching the outrageous footage of a passenger being dragged through an aisle like a bag of trash was that this should never happen. But fundamentally, this is an old story: Companies in concentrated industries, like the airlines, have legal cover to break the most basic promise to consumers without legally breaking their contracts. The video is a scandal. But so is the law.