Chicago Cubs Fail in Effort to Enforce Arbitration - Appellate Court Orders Case Back to Trial Court

On Tuesday, September 29, the First District Appellate Court denied the Chicago Cubs’ attempt to compel arbitration and dismiss a lawsuit brought by Charles Arbogast, an Associated Press photographer injured at Wrigley Field.

In their effort to prevent a jury from hearing Charles’ case, the Cubs, in a motion to dismiss, argued that by simply applying for and using a press credential, Charles agreed to waive his Constitutional right to a jury trial and submit to binding arbitration. The trial court denied the motion, prompting the appeal.

On appeal, the Cubs argued that to get a press credential, one needed to accept the terms and conditions for the pass, which included the arbitration agreement, and that Arbogast was put on notice by text on the pass itself that he was subject to the agreement.

Arbogast, however, successfully argued that there was no evidence of a contract between him and the Chicago Cubs. He did not agree to (or know of) the arbitration clause in question. His coworker was the one who had applied for the credential on his behalf, and Arbogast had never given him authority to agree to arbitration.

In addition, the credential did not even contain the word “arbitration” or inform the party that he/she was waiving the right to a jury trial. The credential merely mentioned that the bearer agrees to further terms and conditions at MLBPressbox.com. However, the webpage on MLBPressbox.com did nothing to highlight the arbitration clause, which was 22 paragraphs into a six-page document, in plain text.

The court expressed "serious doubts" that the credential would put a reasonable person on notice that they were entering into a contract.

Timothy Tomasik, who argued the case on behalf of Mr. Arbogast, stated that the court's decision is extremely well-reasoned and sound in preserving Arbogast's right to a jury trial:

"Citizens cannot be forced to arbitrate when they have not freely and voluntarily assented to waive their right to trial by jury," he said. "The Cubs have been unable to produce evidence demonstrating formation of a contract of any kind, written, oral, or by conduct. Fundamentally, it is striking that there is no signed or affirmed document."

Sources:
Chicago Daily Law Bulletin: Injury suit against Cubs advances