The NFL doesn’t just deploy the secret, rigged, kangaroo court of arbitration against its employees. The NFL uses it on its customers, too.
Recently, a federal appeals court found that four fans who were injured when a railing collapsed at FedEx Field after an Eagles-Commanders game might be required to pursue their claims in arbitration.
The four fans didn’t buy the tickets. They never saw the tickets. Someone else bought the tickets and invited them to attend.
The lower court ruled that the four fans who were injured weren’t bound by the arbitration requirement in the tickets. The appeals court disagreed.
The case has been sent back to the lower court to determine whether the person who bought the tickets accepted the condition that any claims would be required to go to arbitration. If the person who bought the tickets did indeed accept that term, those who used the tickets are subject to the arbitration requirement, even if they didn’t know about it.
Here’s the provision that appeared in the terms and conditions of the Washington tickets: “ANY DISPUTE, CLAIM, OR CAUSE OF ACTION IN ANY WAY RELATED TO THE TICKET OR THE EVENT SHALL BE RESOLVED BY MANDATORY, CONFIDENTIAL, FINAL, AND BINDING ARBITRATION . . . . HOLDER UNDERSTANDS THAT THEY ARE WAIVING THEIR RIGHT TO A COURT OR JURY TRIAL . . . . IF HOLDER DOES NOT CONSENT TO THIS CLAUSE, HOLDER MUST LEAVE OR NOT ENTER THE STADIUM. THIS CLAUSE IS GOVERNED BY THE FEDERAL ARBITRATION ACT.”
Again, the four people who were injured when the railing collapsed never saw that term. They never agreed to that term. But the federal appeals court found that, if the person who bought the tickets is bound by that provision, they are, too.
There’s a deeper issue at play here, one that will be largely overlooked in the upcoming election. The president appoints all federal judges, at every level. And the clear trend, proven time and again, goes like this: Judges appointed by Republican presidents tend to favor the interests of businesses, and judges appointed by Democratic presidents tend to favor the interests of the individual.
I’ve witnessed this, during 18 years of practicing law before I escaped and never looked back. The law is malleable. The presiding judge has a massive impact in how, and if, justice is dispensed. The proliferation of arbitration clauses has given judges who are inclined to support business interests an easy way to short circuit the process by forcing the case into a forum that makes it much harder for the individual to prevail.
That’s why these companies tuck arbitration clauses into any and all transactions, from the negotiation of an employment contract to the purchase of a ticket to a game.
In this case, the judge who found that the four injured people aren’t bound by an arbitration clause they never saw was appointed by a Democratic president. The judge who wrote the opinion finding that they’re potentially stuck with the arbitration clause they never saw was appointed by a Republican president.
It’s unclear why this basic issue doesn’t get addressed during campaigns. We often hear about it as it relates to the Supreme Court, as to some of the issues (mostly social) that the highest court in the land resolves. We never hear about it as to every other federal court that isn’t the Supreme Court, or as to the impact of the outcome of the election on the ability of the average person to obtain justice against the rich and powerful.
None of it will matter to the outcome of the upcoming election. But if/when someone seeking justice against a large business has the courthouse door slammed in his or her face, how they voted in this or any presidential election won’t change the fact that the door has slammed in his or her face.
One last point. At a time when many are celebrating the fact that the Commanders have turned the page from the dark years of Daniel Snyder to the new beginning under Josh Harris, the effort to force four fans who were injured at the team’s stadium is a lingering blemish on the franchise. Harris, with a snap of his fingers, could withdraw the effort to force these four people to arbitration.
If he’s truly different from Snyder, Harris will do it. Today. Every day that he doesn’t underscores the reality that, in many respects, the new boss is the same as the old boss.
