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NFL issues new terms of service, including mandatory arbitration and class action waiver
Massachusetts

NFL issues new terms of service, including mandatory arbitration and class action waiver

Recently, the NFL sent out an email with updated terms of service for its “websites, mobile applications and other online and mobile services operated by NFL Enterprises LLC.” I received the email and several PFT readers sent me the same message.

The email states: “The updates include changes to ‘Section 16. Limitation of Liability’ and the terms for handling disputes set forth in ‘Section 18. Choice of Law, Class Action Waiver, Small Claims and Arbitration’ and ‘Section 19. Mandatory Pre-Arbitration Dispute Resolution Procedure.'”

Section 18.2 contains language that purports to waive consumers’ right to join as a class and requires that all potential claims against the NFL be brought individually: “ANY PROCEEDING TO RESOLVE, ARBITRATE OR NEGOTIATE ANY DISPUTE SHALL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR THE NFL WILL ATTEMPT TO HAVE ANY DISPUTE RESOLVED AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACT OR PROPOSES TO ACT AS A REPRESENTATIVE.”

Section 18.4 requires that all disputes be resolved in arbitration. The good news, if there is any, is that the NFL does not seek to give the Commissioner or his designee the authority to arbitrate, as is the case with many of its non-player employees. Instead, the NFL designates the American Arbitration Association as the entity to resolve the matter.

There’s a lot more. It’s legalese. It’s gibberish. It’s potentially a worthless and unenforceable gagging contract that would not allow the NFL to obtain minimal accountability if its business practices violate consumers’ legal rights.

Parts of it are also ridiculous. In Section 19.1, the NFL requires consumers to send a formal Notice of Any Dispute to the league office by certified mail or FedEx before filing a claim in any forum.

It’s not a comprehensive agreement that applies to every claim that could ever be made against the NFL. It’s worded to include “use of the websites, mobile applications and other online and mobile services.” Still, it’s hard not to interpret that language as a way to avoid a mess like the Sunday Ticket class action lawsuit — especially since the broadcast is moving to streaming and Sunday Ticket can be found on YouTube, which is technically considered an “other online service” owned by the NFL.

The fact that the NFL sent such an email blast to presumably everyone with an NFL.com account shows that it is serious about its legal enforcement of limited publicity and/or severely limited options for, say, 2.4 million consumers who are joining together in a nationwide class action lawsuit that could still bring the league to its knees.

The fact that the new parts of the Terms of Service are clearly mentioned in the email message shows that they intend to use them against anyone who might have a claim related to “use of NFL Enterprises, LLC’s websites, mobile applications, and other online and mobile services.”

Most people who receive the email won’t even open it. Those who do will glance at it briefly (if at all) and then read on. Hardly anyone will read the new terms of service.

However, if you ever file a lawsuit against the NFL—especially a small lawsuit that no lawyer wants to take on for a single plaintiff, but which could become a class action lawsuit with millions in damages—the NFL will do whatever it takes to slam the court door in your face with the new Terms of Service.

Because football is family. And after they managed to avoid a hydrogen bomb worth 14 billion dollars in the Sunday Ticket case (for now), they are doing whatever it takes to protect the family.

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