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The ACBL's (Secret?) Arbitration Agreement

The topic of arbitration has surfaced repeatedly in discussions on BridgeWinners. Several articles have recommended that binding arbitration could provide a relatively expeditious resolution of cheating allegations without recourse to the courts. (http://bridgewinners.com/article/view/an-arbitration-procedure-to-adjudicate-allegations-of-cheating/)  (http://bridgewinners.com/article/view/dealing-effectively-with-cheating-allegations/) (http://bridgewinners.com/article/view/arbitration-rules-for-resolving-cheating-controversies/) The ACBL has announced a plan to create an Anti-Cheating Commission with such final authority. (http://bridgewinners.com/article/view/task-force-update/)

This proposal appears to be a refinement of a more general arbitration agreement, applicable to any dispute arising from ACBL membership, that the ACBL has attempted to implement for a number of years, which can currently be found here. (http://www.acbl.org/about-acbl/administration/binding-arbitration/)

Some ACBL members may be surprised to learn that the ACBL has attempted to add a binding arbitration agreement to their membership agreements. That was the issue confronted by the Contra Costa County Superior Court in California last month when the ACBL moved to compel arbitration of a variety of claims stated in a complaint by an ACBL member. The complaint’s causes of action are beyond the scope of this article, except to note that one alleges the unfairness of a disciplinary hearing conducted by the Appeals and Charges Committee.

Following a court hearing on December 16, 2016, the Superior Court (in case # MSC16-01110) denied the ACBL’s motion to compel arbitration, essentially finding in a four-page decision that the ACBL had failed to prove the member had knowingly entered an arbitration agreement that was hidden on the back of a dues renewal form.

According to the court's decision, the ACBL’s position in part was that it has added the arbitration agreement to the membership contract in 2008 by including a reference to it as one of four notices listed on the back side of a renewal billing form for annual dues.  To be clear, the form did not contain the arbitration agreement itself, just a reference to an arbitration agreement available on the ACBL website that was designed to bind anyone who joined or renewed ACBL membership.

In the court's opinion, “[t]he fourth item in a list of ‘notices’ about marginally important membership information, on the reverse of a renewal dues statement is not the sort of place one would ordinarily expect to find an agreement to give up the right to a jury trial and arbitrate disputes.” “The context of a renewal dues notice would not alert an ACBL member that he or she was agreeing to anything, much less to arbitrate any future dispute with the ACBL. A renewal dues notice does not look like a contract. The arbitration term is not called to the attention of the member on the first page, but instead hidden on the reverse of a form in a context where few would be expected to look at the reverse of the form. The principle of knowing consent applies with particular force to provisions for arbitration.”

The ACBL filed a notice of appeal of this ruling on January 9, 2017. The appellate process is likely to take some time.  While the appeal is pending, you may want to answer some questions or share your own opinion.  Does this ruling affect the validity of "browsewrap" arbitration agreements such as the one included in BridgeWinner's terms of service? (http://bridgewinners.com/pages/terms-of-service/)

(Disclosure.  I'm acquainted through bridge with parties on both sides of this litigation, but my interest in this topic is that of a lawyer who is an ACBL member.) 

1. I am an ACBL member and was not aware before this article that I've agreed to binding arbitration with the ACBL.
2. I am an ACBL member and was aware before this article that I've agreed to binding arbitration with the ACBL.
3, Though not an ACBL member, I was aware before this article that all ACBL members are subject to binding arbitration.
4. I am not an ACBL member and I was not aware before this article that all ACBL members are subject to binding arbitration.
5. I don't care whether ACBL members are subject to binding arbitration.

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