Recently, the NFL sent an email regarding terms of service update for its “websites, mobile applications, and other online and mobile services operated by NFL Enterprises LLC.” I received the email, and I’ve heard from multiple PFT readers who have gotten the same message.
Per the email, “The updates include changes to ‘Section 16. Limitation of Liability’ and the terms governing how disputes are handled, which are set forth in ‘Section 18. Choice of Law, Class Action Waiver, Small Claims, and Arbitration’ and ‘Section 19. Mandatory Pre-dispute Resolution Process.’”
Section 18.2 contains language that purports to waive the rights of consumers to band together as a class, requiring any potential claims against the NFL to be brought individually: “ANY PROCEEDINGS TO RESOLVE, ARBITRATE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR THE NFL WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY.”
Section 18.4 requires all disputes to be resolved in arbitration. The good news, if there is any, is that the NFL doesn’t try to grant the power to resolve the arbitration to the Commissioner or his designee, as the league does with many of its non-player employees. Instead, the NFL designates the American Arbitration Association as the entity that will resolve the matter.
There’s plenty more. It’s legalese. It’s gobbledygook. It’s potentially a worthless and unenforceable contract of adhesion that wouldn’t allow the NFL to engineer its way to minimum responsibility if/when its business practices violate the legal rights of consumers.
Parts of it are also laughable. At Section 19.1, the NFL requires consumers to send by certified mail or FedEx formal notice of any legal dispute to the league office before bringing any claim in any forum.
It’s not a sweeping agreement that applies to any and all claims that could ever be made against the NFL. It’s written to encompass the “use of the websites, mobile applications, and other online and mobile services.” Still, it’s hard not to interpret this language as a way to avoid a mess similar to the Sunday Ticket class action — especially as broadcasting pivots to streaming and Sunday Ticket resides on YouTube and that technically counts as an “other online” services owned by the NFL.
The fact that the NFL sent an email blast to presumably anyone with an NFL.com account shows that they’re serious about lawyering their way toward limited exposure and/or severely restricted avenues for, say, 2.4 million consumers banding together into a nationwide class action that could still bring the league to its knees.
The fact that the email message conspicuously mentions the new portions of the terms of service shows that they intend to use them, against anyone and everyone who might have a claim relating to the “use of the websites, mobile applications, and other online and mobile services” operated by NFL Enterprises, LLC.
Most of those who get the email won’t even open it. Those who do will take a quick look at it (if that) and move on. Hardly any will read the new terms of service.
But if you ever have a claim against the NFL — especially a small one that no lawyer would want to handle for one plaintiff but that could become a very potent class action of millions — the NFL will do whatever it has to do to use these new terms of service to slam the door to the courthouse in your face.
Because football is family. And, after dodging a $14 billion H bomb (for now) in the Sunday Ticket case, they’re doing whatever they have to do to protect the family.
