State ex rel. Hewitt v. Kerr, No. SC 93846

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM
Citation461 S.W.3d 798
Docket NumberNo. SC 93846
Decision Date28 April 2015
PartiesState ex rel. Todd Hewitt, Relator, v. Honorable Kristine Kerr, Judge, Circuit Court for St. Louis County, Missouri, Respondent.

461 S.W.3d 798

State ex rel. Todd Hewitt, Relator
v.
Honorable Kristine Kerr, Judge, Circuit Court for St. Louis County, Missouri, Respondent.

No. SC 93846

Supreme Court of Missouri, en banc .

Opinion issued April 28, 2015
Rehearing Denied June 30, 2015


John D. Lynn, Sedey Harper PC, St. Louis, for Hewitt.

Bradley A. Winters, Sher Corwin Winters LLC, St. Louis, for the Rams.

Opinion

PER CURIAM

A former employee of the St. Louis Rams Partnership, Todd Hewitt, seeks a writ of mandamus requiring the circuit court to vacate its order compelling arbitration of his claim of age discrimination against the St. Louis Rams Partnership and three of its affiliates. Five judges find that a writ of mandamus is the appropriate mechanism to review whether the trial court erred in sustaining a motion to compel arbitration. Four judges find that Mr. Hewitt's employment contract contained a valid and enforceable arbitration clause that required him to arbitrate disputes, including his statutory claims, against the Rams. Four judges also find that the National Football League's dispute resolution procedural guidelines setting out the essential terms of arbitration were not referenced in Mr. Hewitt's employment contract and, therefore, were not incorporated into his contract. Four judges further find that the terms of the contract designating the NFL commissioner, an employee of the team owners, as the sole arbitrator with unfettered discretion to establish the rules for arbitration are unconscionable and, therefore, unenforceable. Four judges find that Missouri's uniform arbitration act provides a mechanism to imply the terms missing from the arbitration agreement and provides the rules for appointing an arbitrator to replace the NFL commissioner. Accordingly, four judges issue a permanent writ of mandamus directing the trial court to vacate its order granting the motion to compel arbitration and, instead, issue an order compelling arbitration wherein the trial court appoints a neutral arbitrator, implies the specific terms of arbitration from applicable statutes in Missouri's uniform arbitration act, and directs the parties to proceed with arbitration.

I. Factual and Procedural Background

The Rams are a professional football team affiliated with the NFL. Starting as a summer equipment department employee for the Rams during college, Mr. Hewitt joined the organization full time in 1978 and was promoted to equipment manager in 1985. He held that position until early 2011.

Mr. Hewitt entered into a number of employment contracts with the Rams during the more than 40 years he was employed by the team. In November 2008, he signed his most recent contract with the Rams. It covered the 2009–2010 and 2010–2011 NFL seasons. Like many of his prior employment contracts, this contract contained an arbitration clause that stated:

Hewitt agrees to abide by and to be legally bound by the Constitution and By–Laws and Rules and Regulations of the National Football League and by the decisions of the Commissioner of the
461 S.W.3d 804
National Football League, which shall be final, binding, conclusive and unappealable. The Rams and Hewitt also severally and mutually promise and agree that in any dispute which may arise between them, the matter in dispute shall be referred to the Commissioner of the National Football League for decision and after due notice and hearing, at which both parties may appear, the decision of said Commissioner shall be final, binding, conclusive and unappealable, and the Rams and Hewitt severally and jointly hereby release the Commissioner and waive every claim each or both have or may have against the Commissioner and/or the National Football League, and against every director, partner, officer, and stockholder of every Club in the National Football League, for all claims and demands whatsoever arising out of or in connection with any decision of the Commissioner of the National Football League.

The constitution and bylaws of the NFL further provided that “[t]he Commissioner shall have full, complete, and final jurisdiction and authority to arbitrate.”

In January 2011, then head coach Steve Spagnuolo notified Mr. Hewitt that his employment contract would not be renewed. At that time, Mr. Hewitt was 54 years old. In May 2012, Mr. Hewitt filed suit in the St. Louis County circuit court against the St. Louis Rams Partnership and three affiliated companies—The Rams Football Company, Inc., ITB Football Company, L.L.C., and The St. Louis Rams, L.L.C.—(collectively “the Rams”) alleging age discrimination in violation of the Missouri Human Rights Act (MHRA), section 213.010 et seq.1

The Rams moved to compel arbitration and to dismiss or stay the court proceedings, citing the arbitration provision of Mr. Hewitt's employment contract. Mr. Hewitt opposed arbitration, arguing that the arbitration provision was invalid and unenforceable against him because: (1) three of the four defendants did not sign the agreement; (2) there was no meeting of the minds as to the essential terms of the arbitration agreement; (3) there was no consideration for the arbitration agreement; (4) the agreement does not contain a clear and unmistakable waiver of Mr. Hewitt's right to bring a statutory violation claim in court and several provisions of the arbitration agreement interfere with Mr. Hewitt's rights under the MHRA, barring arbitration under the “denial of statutory rights” doctrine; and (5) several provisions of the arbitration agreement are unconscionable, including the provision naming the NFL commissioner as the arbitrator.

The trial court granted the Rams' motion to compel arbitration and ordered that the court action be stayed pending the arbitration. After an unsuccessful attempt at an appeal,2 Mr. Hewitt petitioned the court of appeals for a writ of mandamus or prohibition. The court of appeals issued a

461 S.W.3d 805

preliminary order in mandamus. After opinion, both parties sought, and were granted, transfer to this Court pursuant to article V, section 10 of the Missouri Constitution. On transfer, Mr. Hewitt asks this Court to issue a writ of mandamus preventing the trial court from compelling arbitration of this dispute.3

II. Standard of Review and Issuance of Writ of Mandamus

This Court has the authority to “issue and determine original remedial writs,” including the extraordinary writ of mandamus. SeeMo. Const. art. V, sec. 4.1. This Court recognized, in State ex rel. Vincent v. Schneider that a writ of mandamus is an appropriate mechanism to review whether a motion to compel arbitration was improperly sustained. 194 S.W.3d 853, 855 (Mo. banc 2006). A litigant seeking “relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed.” Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006). This right may arise from a statute that creates a right but does not explicitly provide mandamus as a remedy to enforce the right. See State ex rel. JCA Architects, Inc. v. Schmidt, 751 S.W.2d 756, 757 (Mo. banc 1988). Additionally, this Court will not issue a remedial writ “in any case wherein adequate relief can be afforded by an appeal.” Rule 84.22(a).

The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. (2006), governs the applicability and enforceability of arbitration agreements in all contracts involving interstate commerce. Section 2 extends the scope of the FAA to any “contract evidencing a transaction involving commerce.” 9 U.S.C. § 2. Section 1 defines “commerce” as “commerce among the several States.” Id. § 1. The United States Supreme Court has construed this language broadly, stating:

We have interpreted the term “involving commerce” in the FAA as the functional equivalent of the more familiar term “affecting commerce”—words of art that ordinarily signal the broadest permissible exercise of Congress' Commerce Clause power. Because the statute provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause,” it is perfectly clear that the FAA encompasses a wider range of transactions than those actually “in commerce”—that is, “within the flow of interstate commerce.”

Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (internal citations omitted).

The Supreme Court further has held that the FAA applies even when, for example, an arbitration agreement is executed in a single state by residents of that state if one of the parties to the agreement engages in business in multiple states. Id. at 57, 123 S.Ct. 2037. It is undisputed that the Rams operate in interstate commerce; the team—its players and employees—participate in away games and take in revenue in other states, and several of the defendant corporations named in this suit are incorporated in Delaware. Mr. Hewitt's employment contract to provide equipment managerial services to the team as it was engaged in interstate commerce brings the contract within the purview of the FAA.4

461 S.W.3d 806

Under the FAA, a party must submit to arbitration “save upon such grounds as exist at law or in equity for the...

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60 practice notes
  • State ex rel. Norfolk S. Ry. Co. v. Dolan, No. SC 95514
    • United States
    • United States State Supreme Court of Missouri
    • February 28, 2017
    ...see State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 515 nn.1, 2, 515–16 (Mo. banc 2009), and State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 807 (Mo. banc 2015).3 The rule stems from the framework for general jurisdiction over natural persons: states may exercise general jurisdiction ......
  • Bertocci v. Thoroughbred Ford, Inc., WD 80151
    • United States
    • Court of Appeal of Missouri (US)
    • September 26, 2017
    ...case where a sole arbitrator was prescribed by the arbitration contract and that arbitrator was biased. See State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 813 (Mo. banc 2015) (provision in employment contract designating biased NFL Commissioner as sole arbitrator in any dispute between emplo......
  • Donelson v. Ameriprise Fin. Servs., Inc., No. 19-3691
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 3, 2021
    ...of agreement, which implies a mutuality of assent by the parties to the terms of the contract." State ex rel. Hewitt v. Kerr , 461 S.W.3d 798, 810 (Mo. 2015) (internal quotation marks omitted). Parties may assent to terms expressly in a contract or "incorporated into the contract ......
  • Shelter Prods., Inc. v. OMNI Constr. Co., WD 78598
    • United States
    • Court of Appeal of Missouri (US)
    • January 19, 2016
    ...and enforceability of arbitration agreements in all contracts involving interstate commerce." State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015). The parties agree that this litigation involves interstate commerce,3 and 479 S.W.3d 194that the FAA therefore applies.4 The ......
  • Request a trial to view additional results
60 cases
  • State ex rel. Norfolk S. Ry. Co. v. Dolan, No. SC 95514
    • United States
    • United States State Supreme Court of Missouri
    • February 28, 2017
    ...see State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 515 nn.1, 2, 515–16 (Mo. banc 2009), and State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 807 (Mo. banc 2015).3 The rule stems from the framework for general jurisdiction over natural persons: states may exercise general jurisdiction ......
  • Bertocci v. Thoroughbred Ford, Inc., WD 80151
    • United States
    • Court of Appeal of Missouri (US)
    • September 26, 2017
    ...case where a sole arbitrator was prescribed by the arbitration contract and that arbitrator was biased. See State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 813 (Mo. banc 2015) (provision in employment contract designating biased NFL Commissioner as sole arbitrator in any dispute between emplo......
  • Donelson v. Ameriprise Fin. Servs., Inc., No. 19-3691
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 3, 2021
    ...of agreement, which implies a mutuality of assent by the parties to the terms of the contract." State ex rel. Hewitt v. Kerr , 461 S.W.3d 798, 810 (Mo. 2015) (internal quotation marks omitted). Parties may assent to terms expressly in a contract or "incorporated into the contract ......
  • Shelter Prods., Inc. v. OMNI Constr. Co., WD 78598
    • United States
    • Court of Appeal of Missouri (US)
    • January 19, 2016
    ...and enforceability of arbitration agreements in all contracts involving interstate commerce." State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015). The parties agree that this litigation involves interstate commerce,3 and 479 S.W.3d 194that the FAA therefore applies.4 The ......
  • Request a trial to view additional results

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