Journalist Challenges Enforceability of Chicago Cubs' Arbitration Agreement

Back in 2021, we covered a surprising case, Zuniga v. Major League Baseball, in which a woman attending a Chicago Cubs game was injured by a foul ball.  She did not read the back of her ticket (shocking!), nor did she visit the Cubs' website referenced on the back of the ticket (more shocking!) and familiarize herself with the Cubs' mandatory arbitration provision (the most shocking of all!).  The court in that case held that the woman was not on notice of the arbitration provision, and the court denied the Cubs' motion to compel arbitration.

As they say in baseball, "It's that old deja vu all over again!" Charles Arbogast was awarded journalist credentials and granted entry to storied Wrigley Field on July 26, 2018.  While there, he “fell and sustained injuries,” allegedly due to the Cubs' negligent decision to stack pallets in the photo well near first base.  The pallets were intended for photographers to stand on, but Arbogast claims that they created a hazard.

Once again, on the back of Mr. Arbogast's press credential were terms and conditions, including the words "Bearer acknowledges receipt and review of, and agrees to be bound by, the further terms and conditions contained on the website of the Office of the Commissioner of Baseball at MLBPressbox.com."  If Mr. Arbogast had visited that website and found the appropriate link, he would have found a twenty-five paragraph, six page document containing an arbitration clause.

When Mr. Arbogast sued for negligence, the Cubs moved to compel arbitration.  The trial court, citing Zuniga, denied the motion without prejudice, and the appellate court affirmed.  The case was a bit more complicated than Zuniga, because Mr. Arbogast had been awarded media credentials on numerous occasions and had been granted access to Major League Baseball (MLB) stadiums during every season since 2018.  The Cubs' renewed their motion and demanded a summary proceeding to determine the existence of an arbitration agreement between the parties.  In a supplemental affidavit submitted by a Cubs' employee, the Cubs identified an Associated Press (AP) employee who requested the credential on behalf of Mr. Arbogast and other journalists.  In order to receive the credential this AP employee had checked a box agreeing to the Cubs' and MLB's terms.

Having conducted the summary proceeding, the trial court now granted the Cubs' motion to compel arbitration, rejecting Mr. Arbogast's claims that he had no reasonable notice of the arbitration provision and that the provision was unconscionable.  In Arbogast v. Chicago Cubs Baseball, LLC, the appellate court reversed and remanded.

The appellate court agreed with the trial court that an agreement had been formed but reversed on unconscionability.  Here, even more than in Zuniga, there was procedural unconscionability because Mr. Arbogast's press credential did not even mention arbitration.  Like in Zuniga, the provision was substantively unconscionable because, although the holder of a press credential has seven days to opt out of the arbitration provision, Mr. Arbogast had no ability to do so, as he was hospitalized during the relevant period and in any case had not been furnished with an account number which he would have needed in order to opt out.