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Hat Trick: NHL Adds Arbitration Clause

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.

Little did I know that I was on’s email list. I guess having a son wild about all things hockey must have had something to do with it. So you can imagine my surprise on Saturday morning when I woke up to an email from informing me of the new arbitration clause it was adding to its “Terms of Service,” effective August 13, 2014 (three days earlier).

The arbitration clause contains an agreement to arbitrate before the AAA in New York all disputes arising out of the “Services” or “Terms of Service.” The clause also includes a class action waiver, a collective action waiver, a New York choice of law clause, a New York forum selection clause for all non-arbitrable disputes, and an agreement to shorten ALL applicable limitations period to ONE YEAR. Here are relevant excerpts:

Last Updated and Effective Date — August 13, 2014


These Terms of Service (the “Terms”) are a legal agreement between you and NHL Interactive CyberEnterprises, LLC and its affiliates, including NHL Enterprises, L.P., NHL Enterprises Canada, L.P., NHL Enterprises B.V., and the National Hockey League (“NHL”, “we” or “us”) governing your access to and use of the websites and online services that display or provide an authorized link to these Terms (collectively, the “Services”). The Services include, without limitation,, the NHL app, NHL GameCenter LIVE™, and NHL Vault™.

18. Location, Governing Law, Arbitration, and Time Period Limitation for Bringing Claim

These Terms are governed by, and must be construed in accordance with, the laws of the United States and the State of New York, as applicable, without giving effect to their principles of conflicts of law. By using the Services, you waive any claims that may arise under the laws of other states, countries, territories, or jurisdictions.

With respect to any and all disputes arising out of or in connection with the Services or these Terms (including without limitation the Privacy Policy), the NHL and you agree to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. If you and the NHL do not resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.

Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor the NHL 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. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

The NHL and you agree that all disputes arising under these Terms that cannot be settled through informal negotiation will be settled exclusively through confidential binding arbitration in accordance with the commercial rules of arbitration of the American Arbitration Association in New York. The arbitrator’s award shall be binding and may be entered as a judgment in a court of competent jurisdiction. You agree that the NHL may seek any interim or preliminary relief from a court of competent jurisdiction in New York, necessary to protect its rights or property pending the completion of arbitration.

Any claims not subject to arbitration shall be subject to the exclusive jurisdiction of state or federal courts in New York County, New York.

To the extent permitted by law, any claim or dispute under these Terms must be filed within one year in an arbitration proceeding. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred.

Unconscionable? Let’s discuss.


Jill Gross

Professor Jill I. Gross has been a director of the Investor Rights Clinic (formerly the Securities Arbitration Clinic) since 1999. Professor Gross teaches the Investor Rights Clinic and Seminar, Mediation and Arbitration, and Securities Litigation and Enforcement. She has published numerous law review articles in the area of dispute resolution… MORE >

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