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 NHL.com’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 NHL.com 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 CONTAIN DISCLAIMERS OF WARRANTIES (SECTION 12), DISCLAIMERS OF LIABILITY AND AN EXCLUSIVE REMEDY (SECTION 13), AND AN ARBITRATION CLAUSE AND CLASS WAIVER (SECTION 18). PLEASE READ THEM CAREFULLY.
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, nhl.com, 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.
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.
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