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Kevin Kelly (real name, Kevin Foote) and the Tate Twins pushed back against AEW’s attempt to move their lawsuit into arbitration, in a new filing submitted last week Monday.
Their attorney Stephen P. New argued the arbitration clause in their talent contracts—as well as the rest of their contracts—is one-sided and unenforceable.
The plaintiffs—who claim they were defamed and misclassified by AEW, among other allegations—say they weren’t given a real chance to negotiate arbitration and weren’t told how expensive it would be, making it nearly impossible for them to challenge AEW in a fair setting.
Overcoming an arbitration clause is a high legal hurdle (which we’re also seeing litigated in the Grant v. WWE case), requiring a party to show that the clause is procedurally and substantively unconscionable—meaning it was imposed unfairly and operates in a way that overwhelmingly favors one party.
To that end, Kelly, Brandon Tate, and Brent Tate argue that AEW’s arbitration clause reinforces an unfair power dynamic, restricting talent while allowing AEW more legal flexibility. They claim their talent contracts allow AEW to reserve the right to seek injunctive and equitable relief in court, but denies wrestlers the same option, effectively preventing them from using the legal system to challenge the company on equal footing.
Beyond arbitration, the filing highlights several contract provisions that New claims further demonstrate substantive unconscionability. He argues that AEW’s contracts prohibit talent from challenging the legality of their contracts, limit discovery rights, but allow AEW to claim certain damages while preventing talent from doing the same. The plaintiffs contend these terms, taken together, ensure that talent remains bound by AEW’s control without the ability to push back through traditional legal avenues.
The contracts are filed under seal, meaning the judge can review them but the public can’t. If these allegations are an accurate reflection of the content of the contracts, it would strengthen the plaintiffs case.
New suggests that AEW’s reliance on restrictive contract language is an attempt to insulate itself from legal accountability, using arbitration not as a fair dispute resolution mechanism, but as a tool to suppress challenges from talent.
The latter part of the filing blends into becoming a broader policy critique, arguing that AEW’s arbitration clauses are both legally unenforceable and part of a systemic effort to deny talent access to the courts. New criticizes the larger trend of corporations using arbitration to avoid accountability. He frames the case as not just a wrestling issue, but a workers’ rights issue, stating:
As long as the legal fiction that arbitration is preferable to judicial proceedings persists, Plaintiffs, putative class members, and the many other individuals across this country who are subject to arbitration agreements will continue to be denied their 7th Amendment constitutional right to access the courts.
If AEW ends up prevailing on this issue, the case will go to private arbitration and out of public view. But if the judge in this federal case in the Middle District of Florida rules in favor of the plaintiffs, it would make it more difficult for AEW to force arbitration against wrestlers in future cases, assuming AEW uses similar language across its talent contracts.
Brandon Thurston has written about wrestling business since 2015. He operates and owns Wrestlenomics.