Thomas P Valenti Dispute Resolution Office

The Second Circuit held that "not every self-declared 'arbitration agreement' . . . is embraced by the FAA's mandate," and that the FAA's mandate "is limited to the enforcement of actual 'arbitration agreements.'" Before asking whether the FAA required enforcement, the court asked whether the provision qualified as one. By posing the question at the structural threshold, the court held that the strong federal presumption favoring arbitration did not attach, because the FAA's mandate is limited to actual "arbitration agreements" and the provision at issue did not qualify. On that threshold question, the court answered no, holding that a provision giving one party's executive "full, complete, and final jurisdiction and authority to arbitrate" fails to provide the structural predicates the FAA presupposes — namely, an independent arbitral forum for bilateral dispute resolution, and a procedure fixed by contract rather than left to the unilateral discretion of one party's executive.

The Supreme Court just denied cert in Flores — is your arbitration clause still enforceable? The sports industry is experiencing unprecedented growth and investment. This trend is driven by changing regulations relating to ownership in…