Beating Cubs' Arbitration Clause Is Easier in Illinois than Tennessee

Yesterday, we covered a journalist's defeat of the Chicago Cubs' attempt to compel arbitration of his negligence claims. The Illinois court found, as it had found in the 2021 case, Zuniga v. Major League Baseball, that the Cubs did not put people on notice of arbitration terms by referencing their website, which links to an arbitration agreement, on the back of tickets or press credentials.

A Tennessee court reached the opposite conclusion based on very similar facts involving the Cubs' Double-A affiliate, the Tennessee Smokies. Deborah Roberts attended a Smokies game on April 22, 2022 and sat in the front row near the third-base dugout. She was hit by a foul ball and injured, requiring a three-day hospitalization and further treatment. Her husband immediately met with team representatives, but the Robertses claim that they only learned of the Smokies' arbitration clause when the team filed a motion to compel arbitration. As in Zuniga, the motion to compel was based on notice on the back of Ms. Roberts' ticket. The court provides the added particulars that the notice was in part in bold and in part in ALLCAPS, and it referenced arbitration, as well as a class-action waiver to be found on the team website.  To me, the most relevant fact is that all of the print on the back of the ticket was in 4-point font [this is eight-point because our platform knows that going small than that is absurd], which would make it completely illegible to me and likely to any potential reader over the age of forty. Moreover, the court does not seem to read this blog, because if it did it would know Yonathan Arbel and Andrew Toler's work showing that people are actually less likely to read and understand ALLCAPS text than they are to read and understand ordinary text. 

Applying Tennessee law, the District Court in Roberts v. Boyd Sports, LLC found that the parties had formed an arbitration agreement.  It's reasoning is summarized as follows:

. . . [A] reasonable onlooker or objective observer would conclude that the parties mutually intended to assent to the terms on the tickets by Plaintiffs' acceptance of the tickets and subsequent entry into the stadium. Plaintiffs were provided with ample opportunity to read, investigate, and understand the provisions on their tickets, both when received, and certainly in the 7 days afterward when they were investigating their options to resolve the injury that occurred. According to the undisputed facts here, they never inquired as to the terms or indicated confusion or lack of understanding. Simply failing to read the terms does not present a party with the ability plead ignorance to or reject the terms after the fact. 

The seven-day period is relevant because, had plaintiffs during that time found the arbitration agreement on the team website and worked through its terms, they would have seen that ticketholders have an option to opt-out of the arbitration provision within seven days.  To do so, plaintiffs would have had to know their account number, which they did not have.  While

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the Zuniga court found the seven-day period substantively unconscionable because it is so short, the Tennessee court declined to follow non-binding precedent.  As to the account number, given that the Roberts claim that they did not even know of the arbitration clause, their lack of an account number was irrelevant.  The team represented that it would have honored the opt-out even without such a number.

I find the opinion infuriating, in part because it treats four-point font as notice and in part because unconscionability relates to formation.  A contract that provides for an opt-out but requires an account number that the team does not actually provide is unconscionable at the time of formation.  It is of no matter that the team later proffers self-serving assurances that it would not stand by the terms of its unconscionable arbitration provision.  

In the case discussed in yesterday's post, Arbogast v. Chicago Cubs Baseball Club, LLC, the court held a summary hearing into arbitrability.  Such a hearing could have been useful in this case.  A judge ought to want to hear from the parties about what was going on during those seven days.  Were the plaintiffs not actively exploring their legal options based on conversations or assurances that the team had given in discussions with Mr. Roberts about Ms. Roberts' injury? If I were not a contracts professor and my spouse were hospitalized for three days with facial injuries, my first instinct would not be to try to decipher the four-point font on the back of her ticket stub.  But perhaps I am not the "reasonable and objective observer" that the court is looking for.

As usual, I say all this without quite grasping why plaintiffs prefer litigation over arbitration.  In Arbogast, the arbitration was to take place in New York.  If the same is true in this case, that might be a reason to opt out. But I would think such a remote venue would also be a basis for a claim of substantive unconscionability, so perhaps this arbitration clause allowed for arbitration in Tennessee.