1

Filed 4/15/15 Hanson v. Cable CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION THREE 

RANDY HANSON, 

 Plaintiff and Appellant, 

v. 

TOM CABLE et al., 

 Defendants and Respondents. 

 A138208 

 (Alameda County 

 Super. Ct. No. RG-10-499908) 

 Plaintiff and appellant Randy Hanson commenced a lawsuit against his former 

employer defendant and respondent The Oakland Raiders (the Raiders), a member club 

of the National Football League (NFL), and its former head coach and managing agent 

defendant and respondent Tom Cable (hereafter also collectively referred to as 

respondents), and defendants Does 1 through 10, inclusive. Hanson sought monetary 

damages for assault, battery, and intentional infliction of emotional distress, arising from 

a verbal and physical altercation between Hanson and Cable that occurred at the Raiders’ 

training camp in 2009. Respondents successfully secured an order compelling the parties 

to arbitrate the matter pursuant to provisions in Hanson’s employment agreement with the 

Raiders. Arbitration awards were ultimately issued resolving Hanson’s claims against 

respondents. The trial court denied Hanson’s petition to vacate the arbitration awards and 

granted the Raiders’ petition to confirm the arbitration awards. Hanson appeals from the 

judgment dismissing his complaint after confirmation of the arbitration awards. 

 Hanson mounts two challenges to the order compelling arbitration. He contends 

the agreement to arbitrate does not encompass the tort claims alleged in his complaint. 
2

He further contends the agreement to arbitrate is unenforceable because it is both 

procedurally and substantively unconscionable. We conclude Hanson’s contentions do 

not require reversal. Accordingly, we affirm the judgment. 

FACTS 

A. Background 

In early 2007, Hanson began his employment with the Raiders as an assistant 

secondary coach at a salary of $160,000 for the first year and $170,000 thereafter. Two 

years later, in January 2009, Hanson was promoted to assistant coach at a salary of 

$200,000 per year. In both 2007 and 2009, Hanson signed employment agreements, 

which contained the following arbitration clause: “Hanson agrees that all matters in 

dispute between Hanson and [the Raiders], including without limitation any dispute 

arising from the terms of this Agreement, shall be referred to the NFL Commissioner for 

binding arbitration, and his decision shall be accepted as final, conclusive, and 

unappealable.” Hanson also agreed to “abide by and be legally bound by the 

Constitution, Bylaws, and rules and regulations of the NFL . . . and by the decisions of 

the Commissioner of the NFL . . . which decision[s] shall be final, conclusive and 

unappealable.” In pertinent part, the NFL Constitution, article VIII, section 8.3 provides: 

“The Commissioner shall have full, complete, and final jurisdiction and authority to 

arbitrate: [¶] . . . [¶] (C) Any dispute between or among players, coaches, and/or other 

employees of any member club or clubs of the League, other than disputes unrelated to 

and outside the course and scope of the employment of such disputants within the 

League.” The NFL’s “Dispute Resolution Procedural Guidelines” govern “the time, 

method and manner of the arbitration procedure.” 

B. Trial Court Proceedings 

On February 23, 2010, Hanson filed this lawsuit against respondents and Does 1 

through 10, inclusive, alleging causes of actions for assault, battery, and intentional 

infliction of emotional distress. Each cause of action arose from an incident that occurred 

on August 5, 2009. In particular, Hanson alleged that Cable, as “a managing agent of and 
3

the head coach” of the Raiders, called a meeting of several coaches at the Raiders’ 

training camp. During the meeting, Cable allegedly attacked Hanson, causing him 

personal injuries. Regarding the Raiders’ liability, Hanson alleged that at the time of the 

assault, Cable was acting within the scope of his “agency and employment” with the 

Raiders. Hanson also alleged the Raiders later “ratified” Cable’s conduct by failing to 

conduct more than a cursory investigation of the incident and discipline Cable. Hanson 

further alleged that as a consequence of the incident, he was placed on leave of absence 

for an extended period of time, was not allowed to return to his position as assistant 

coach, and instead, was eventually permitted to return to an undefined role in the Raiders’ 

personnel department under conditions that caused him embarrassment, distress, and 

humiliation. 

 In response to Hanson’s complaint, respondents filed separate motions to compel 

arbitration pursuant to the provisions in Hanson’s 2009 employment agreement with the 

Raiders,1

 which motions were opposed by Hanson. After consideration of the parties’ 

papers and oral argument, the trial court (Hon. Yvonne Gonzalez Rogers) issued a written 

decision resolving the motions to compel arbitration. 

 The court set forth the issues before it in the following manner: “The parties do 

not dispute that the arbitration clause in the Agreement encompasses Hanson’s assault 

and battery and emotional distress claims. Hanson argues that because the NFL has 

already conducted an internal investigation and decided that no violation of its own rules 

occurred he should not be compelled to arbitrate. He further argues that the entire 

‘arbitration clause is fatally flawed’ and cannot be enforced in any circumstance because 

the commissioner is an employee of the NFL, and therefore, should never be allowed to 

preside over a dispute involving an NFL club. [¶] The four-page NFL Dispute 

Resolution Procedural Guidelines (‘NFL Arbitration Guidelines’) outline generally the 

procedures for resolution by arbitration giving the NFL Commissioner broad control. 

 

1

 Cable relied on the contractual provision that Hanson “abide by and be legally 

bound by the [NFL] Constitution.” The Raiders relied on both the contractual provision 

cited by Cable, and the arbitration clause in Hanson’s employment contract. 
4

[Record Citation.] Paragraph 3.1 provides that the ‘Commissioner may conduct the 

arbitration in such manner as he deems appropriate, and in a manner designed to reach a 

fair and prompt outcome, consistent with the circumstances of the particular dispute.” 

(Emphasis supplied.) Further, paragraph 3.5 of the NFL Arbitration Guidelines provides 

the parties with the option of proposing ‘alternative methods of proceeding or variations 

from these Guidelines in a particular arbitration, which the Commissioner may permit in 

his discretion.’ Here, the NFL Commissioner has indicated that arbitration under its 

provisions would be appropriate. [Record Citation.] However, because Hanson filed suit 

in state court, there has been no determination made by the NFL as to the manner or 

method of arbitration that will be chosen to reach a fair and prompt outcome, consistent 

with the circumstances of this dispute, nor did the parties undertake to exercise their 

option to propose jointly to the Commissioner alternative methods of proceedings. 

Hanson has not filed a cross-motion for the appointment of a neutral and impartial 

arbitrator, but rather seeks to have the[ ] entire clause invalidated.” 

 The court rejected Hanson’s contention that the arbitration clause in his 

employment contract was both procedurally and substantively unconscionable. It 

explained: “When evaluating a contractual arbitration clause, courts must determine 

whether the clause is both procedurally and substantively unconscionable. (Discover 

Bank v. Superior Court (2005) 36 Cal.4th 148, 160 [(Discover) 2

].) Both forms must be 

present although a sliding scale exists. (Armendariz v. Foundation Health Pyschcare, 

Inc. (2000) 24 Cal.4th 83, 114 [(Armendariz) 3

].) The longstanding goal is for courts to 

ensure that the contractual mechanism and procedures will allow parties with a ‘realistic 

and fair opportunity to prevail in a dispute under its terms.’ (Graham v. Scissor-Tail, Inc. 

(1981) 28 Cal.3d 807, 825 [Scissor-Tail].) It is for courts to determine ‘largely on a case 

by case basis’ whether ‘minimum levels of integrity’ exist. (Id.)” 

 

2 Discover was abrogated in part on another ground in AT&T Mobility LLC v. 

Concepcion (2011) 563 U.S. ____, ____ [131 S. Ct. 1740, 1746-1749] (Concepcion). 

3 Armendariz was abrogated in part on another ground in Concepcion, supra, 131 S. 

Ct. at p. 1746.) 
5

 In addressing the element of procedural unconscionability, the court stated: 

“Procedural unconscionability is found where the provision is the result of ‘surprise’ or 

‘oppression’. (Armendariz, supra, 24 Cal.4th at [pp.] 113-114.) [‘]Surprise[’] is present 

in a contract when the supposed agreed terms are hidden in a prolix agreement drafted by 

the party seeking to benefit from a disputed term. ‘Oppression’ is found in contracts of 

adhesion when there is an unequal bargaining power among the parties to the contract 

resulting in no real negotiation of the terms of the contract and no meaningful choice is 

available to the weaker party. [¶] The Agreement between Hanson and the Raiders totals 

five pages, eight and one-half by eleven inches in size, double-spaced, including 

introductory language and signature blocks. The agreement uses simple, understandable 

language. Paragraphs one through five focus on Hanson’s role, tenure and job duties. 

Paragraph six identifies his salary. Paragraphs seven through ten concern good cause for 

termination, game day dress, and Hanson’s agreement to conduct himself with ‘due 

regard to public conventions and morals’ and to ‘abide by and be bound by the 

Constitution, Bylaws, and rules and regulations of the NFL’ as well as the NFL 

Commissioner’s decisions. [¶] The arbitration provision is set forth in paragraph eleven 

using the same type-face. It reads, in its entirety: [¶] Hanson agrees that all matters in 

dispute between Hanson and Club, including without limitation any dispute arising from 

the terms of this Agreement, shall be referred to the NFL Commissioner for binding 

arbitration, and his decision shall be accepted as final, conclusive, and unappealable. [¶] 

The remaining two paragraphs provide addresses for notices and an integration clause. 

Hanson states in his Declaration that it was his ‘understanding that [he] needed to sign 

the contract as it was if [he] wanted to work for the Raiders.’ [Citation.] [¶] Generally, 

provisions forced upon another do support a finding of adhesion. Here, Hanson’s 

declaration is self-serving and more is needed to show that the contract is one of 

adhesion. Merely being an employee to a company does not in itself necessarily create 

an adhesion contract. Hanson does not claim surprise and he cannot, because his counsel 

acknowledged at oral argument that Hanson served as a witness in an NFL Arbitration 

himself. When Hanson signed the Agreement, he had employment as an assistant coach 
6

for the Los Angeles Rams. [Citation.] The Agreement sets forth Hanson’s salary, which 

is not insignificant. Although not outcome determinative, Hanson cannot be considered a 

lower level employee who lacks any voice in a larger corporate structure. (See, e.g., 

Morris v. New York Football Giants, Inc. (1991) [150 Misc. 2d 271, 276,] 575 N.Y.S.2d 

1013, 1016 [rejecting arguments that the professional football players who were highly 

paid, sophisticated athletes and represented by experienced agents and/or counsel were 

presented contracts with arbitration clauses on a[ ] ‘take-it-or leave-it’ basis].) [¶] There 

is no evidence that Hanson disagreed with the Agreement’s arbitration provision or 

foundation for Hanson’s statement that he was required to agree to arbitration in order to 

be employed by the Raiders. There is no evidence of pressure, as a representative of the 

Raiders left the Agreement with Hanson for Hanson to sign at his convenience. [Record 

Citation.] The Court notes that evidence is lacking on accessibility and/or delivery of the 

NFL Arbitration Guidelines, Bylaws and Constitution as part of the contracting process. 

On the current record there is insufficient evidence to support findings of surprise or 

oppression.” 

 In addressing the element of substantive unconscionability, the court stated: 

“ ‘Substantive’ unconscionability focuses on the terms of the agreement and the presence 

of overly harsh or one-sided results. (Martinez v. Master Protection Corporation (2004) 

118 Cal.App.4th 107, 113.) . . . [¶] Hanson argues that the agreement is substantively 

unconscionable because it designates the NFL Commission as the arbitrator. First, 

Hanson argues that because the NFL Commissioner is employed by NFL member teams, 

he is biased in their favor and cannot under any circumstance arbitrate disputes between 

teams and their employees. Second, Hanson contends that the Commissioner is bound by 

the ethical mandates in California Code of Civil Procedure sections 1281.9, 170.1, and 

ethics standards for neutral arbitrators, and subject to disqualification on the basis of prior 

knowledge of the disputed facts of this incident and because reasonable doubt exists that 

the Commissioner could be impartial. [¶] Regarding the first argument, the Court is not 

convinced that the fact that the NFL Commissioner’s salary is paid or determined by NFL 

member teams means that in all circumstances the Commissioner must be biased in favor 
7

of teams. In support of this argument, Hanson cites to dicta in Dryer v. Los Angeles 

Rams (1985) 40 Cal.3d 406, 417. One would expect that if such an argument had merit, 

it would have been resolved in the last 25 years. The only NFL case cited since 1985 was 

a New York state court opinion in which the Commissioner was disqualified from acting 

as arbitrator, but not by application of any rule of automatic disqualification based on the 

Commissioner’s employment status or identity. See Morris v. New York Football 

Games, Inc. (1991) 575 N.Y.S.2d 1013, 1016. [¶] Hanson’s second argument has some 

merit, but it is premature. Both state and federal law appear to permit the Court to 

enforce arbitration and substitute the arbitrator upon a showing of bias. See, e.g., Erving 

v. Virginia Squires Basketball Club (2d Cir. 1972) 468 F.2d 1064; Morris v. N.Y. 

Football Games, Inc., supra, 575 N.Y.S.2d at 1017; [Scissor-Tail], supra, 28 Cal.3d at 

[p.] 831. But in this case, the NFL Arbitration Guidelines to which Hanson contractually 

agreed to be bound provide a mechanism for ensuring fairness in the context of a given 

arbitration. They explicitly provide the Commissioner with the discretion to conduct an 

arbitration in any ‘manner as he deems appropriate, and in a manner designed to reach a 

fair and prompt outcome, consistent with the circumstances of the particular dispute.’ 

(Section 3.1.) This includes ‘alternative methods of proceedings’ which may be ‘jointly’ 

proposed by the parties. (Section 3.5.) While the NFL Arbitration Guidelines set forth a 

simple outline of pre- and post-arbitration proceedings, they do not foreclose an alternate 

arbitration process where the circumstances warrant. Hanson cannot ignore his 

contractual obligation to arbitrate or to propose alternative methods of arbitrating the 

dispute.” The court stayed the action and granted the motions to compel arbitration 

“without prejudice to any party that believes it necessary to file a motion for appointment 

of an arbitrator/s to resolve the matter consistent with the terms of the Agreement.” 

Hanson did not file a motion for the appointment of an arbitrator as permitted by the 

court’s order. 

 Evidence was presented at a hearing before an arbitrator. Thereafter, the arbitrator 

issued partial and supplemental awards resulting in the denial of Hanson’s claims 

asserted against respondents, save for an award in favor of Hanson in the sum of $3,339 
8

for special medical damages. 4 Hanson filed a petition to vacate the arbitration awards 

and the Raiders filed a competing petition to confirm the awards. After consideration of 

the parties’ papers and oral argument, the trial court (Hon. Frank Roesch) granted the 

petition to confirm the awards and denied the petition to vacate the awards. A judgment 

was later entered dismissing the complaint. Hanson now appeals. 5 

 

4

 The arbitration involved Hanson’s “claims of assault, battery and intentional 

infliction of emotional distress” against Cable, and Hanson’s “claims for breach of 

contract, breach of implied covenant of good faith and fair dealing, and for defamation 

(false light)” against the Raiders. The arbitrator’s award of special medical damages was 

based on Cable’s offer to pay for Hanson’s medical and dental expenses, which the 

arbitrator interpreted as Cable’s stipulation to an award of such damages, subject to 

proof. 

5

 Hanson’s notice of appeal indicates he is only appealing from the January 23, 

2013, order denying his petition to vacate the arbitration awards. However, that order, 

which also granted the Raiders’ petition to confirm the arbitration awards, and the earlier 

December 10, 2010, order compelling arbitration, are not separately appealable. Those 

orders are reviewable on appeal from the April 17, 2013, judgment confirming the 

arbitration awards and dismissing the complaint. (See Kinecta Alternative Financial 

Solutions, Inc. v. Superior Court (2012) 205 Cal.App.4th 506, 513; National Marble Co. 

v. Bricklayers & Allied Craftsmen (1986) 184 Cal.App.3d 1057, 1060, fn. 1.) Thus, we 

shall dismiss the purported appeal from the January 23, 2013, order as it is not separately 

appealable. At Hanson’s request, and in the absence of any showing of prejudice, we 

deem his notice of appeal from the January 23, 2013, order to be a premature notice of 

appeal from the judgment later entered on April 17, 2013. (Cal. Rules of Court, rule 

8.104(2)(d).) 
9

DISCUSSION6

In this appeal, as stated above, Hanson challenges the grant of respondents’ 

motions to compel arbitration on two grounds. First, he contends that the tort claims 

alleged in his complaint fall well beyond the scope of the arbitration clause in his 

employment contract (hereinafter also referred to as the arbitration clause). Second, he 

argues that even if his tort claims are arbitrable, the arbitration clause is unenforceable as 

“permeated by unconscionability.” More specifically, he contends the arbitration clause 

is part of a contract of adhesion that was imposed on a take-it-or leave-it basis, fails to 

disclose or include the NFL arbitration rules that would govern all arbitrations, lacks 

mutuality, and fails to provide for a neutral third-party arbitrator. As we now discuss, we 

conclude that none of Hanson’s assertions requires reversal of the order compelling 

arbitration. 

A. Arguments Concerning Scope of Disputes Subject to Arbitration 

 Initially we note that Hanson’s argument concerning the scope of disputes subject 

to arbitration is forfeited because he failed to raise the issue in the trial court when he 

initially opposed arbitration. (See Pearson Dental Supplies, Inc. v. Superior Court

(2010) 48 Cal.4th 665, 681 [forfeiture found where plaintiff failed to raise issue of 

unconscionability based on preclusion of administrative remedies in resisting petition to 

compel arbitration]; Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1266 

[forfeiture found where appellant failed to raise issue of unconscionability claim in 

 

6

 In the trial court, Hanson filed one joint memorandum of points and authorities in 

opposition to the separate motions to compel arbitration filed by respondents, “since the 

arguments are overlapping and would be repetitive. Indeed, Cable is a managing agent of 

the Raiders and the Raider’s potential liability for the torts here is heavily intertwined 

with Cable’s, and the grounds for denying the two [motions] are largely the same.” On 

appeal, Cable has filed a one-page brief containing no substantive arguments and 

essentially asking us to affirm the judgment based on the substantive arguments in the 

responsive brief submitted by the Raiders. Therefore, for convenience and as 

appropriate, we shall construe the arguments made by Hanson as addressing both 

respondents and the substantive arguments by the Raiders as made on behalf of both 

respondents. 
10

resisting petition to compel arbitration or at the hearing in the trial court]; Cummings v. 

Future Nissan (2005) 128 Cal.App.4th 321, 328 [forfeiture found where appellant failed 

to raise issue of unconscionability based on a bilateral provision for a second level of 

review of an arbitration award in resisting petition to compel arbitration]; see also RentA-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 72-73 [Supreme Court concluded a 

contractual arbitration clause delegating enforcement issues to an arbitrator was 

presumptively valid in the absence of a challenge in the lower courts].) 

 In all events, Hanson’s argument fails on the merits. In support of their motions to 

compel arbitration, respondents had the initial burden of proving the existence of an 

agreement to arbitrate the parties’ dispute. (Pinnacle Museum Tower Assn. v. Pinnacle 

Marker Development (US), LLC (2012) 55 Cal.4th 223, 236.) To meet their burden, 

respondents submitted Hanson’s signed 2009 employment contract and the NFL 

Constitution, Bylaws, and Dispute Resolution Procedural Guidelines, which were 

referred to in the employment contract. Those documents included provisions that all 

matters in dispute between Hanson and the Raiders were subject to binding arbitration, 

and disputes between coaches, other than disputes unrelated to and outside the course and 

scope of the employment of such disputants within the League, were subject to 

arbitration. Once the existence of a valid agreement to arbitrate was established, the 

burden shifted to Hanson, as the party opposing arbitration, to demonstrate that the 

agreement to arbitrate could not be interpreted to require arbitration of his disputes. (See 

Dryer v. Los Angeles Rams, supra, 40 Cal.3d at p. 414; Bigler v. Harker School (2013) 

213 Cal.App.4th 727, 738 (Bigler); Titolo v. Cano (2007) 157 Cal.App.4th 310, 316-

317.) 

 “ ‘A long line of California and federal cases holds that claims framed in tort are 

subject to contractual arbitration provisions when they arise out of the contractual 

relationship between the parties.’ (Dryer v. Los Angeles Rams, supra, 40 Cal.3d [at 

p.] 418, fn. 12; see Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 

186 Cal.App.4th 696, 712 [111 Cal. Rptr.3d 876].) It is the dispute, not the named cause 

of action, that is the focus of inquiry. Thus, [the fact] that the complaint alleges [assault, 
11

intentional infliction of emotional distress, and] battery is in itself immaterial; what must 

be determined is whether the tort claims ‘have their roots in the relationship between the 

parties which was created by the contract.’ ” (Bigler, supra, 213 Cal.App.4th at p. 739.) 

 Relying on RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 

1511 (RN Solution), decided by our colleagues in Division One, and our Supreme Court’s 

decision in Victoria v. Superior Court (1985) 40 Cal.3d 734 (Victoria), Hanson argues 

that, as a matter of law, the parties did not contemplate, or expect, that a physical attack 

on Hanson by another coach would fall within the scope of the arbitration clause in his 

employment contract or the arbitration provision of the NFL Constitution. We find 

Hanson’s cited authority distinguishable. Unlike the situations in those cases, we are not 

here concerned with (a) “an alleged violent physical assault by an employee of one 

company against an employee of [another] company in the context of an intimate 

domestic relationship between them . . . arising outside of the business relationship

between” the companies (RN Solution, supra, 165 Cal.App.4th at p. 1523, italics added); 

or (b) the negligent employment of an orderly accused of sexually assaulting a hospital 

patient who had agreed to arbitrate any claim for “bodily injury arising from rendition or 

failure to render services” in the hospital (Victoria, supra, 40 Cal.3d at pp. 738, 745). 

 Instead, the case at bar is analogous to Bigler, supra, 213 Cal.App.4th 727. In that 

case, the Sixth District held that a student’s parents’ agreement to arbitrate “ ‘any dispute 

involving the School,’ ” included the student’s claim of battery against a teacher, whose 

alleged behavior occurred within the course and scope of his role as a teacher in his 

classroom on a school day concerning an academic performance the student brought to 

the teacher’s attention. (Id. at pp. 732, 741.) Similar to our appellate colleagues in 

Bigler, in this case we, too, conclude that Hanson’s tort claims against respondents fall 

within the employment contract clause allowing for arbitration of “all matters in dispute” 

between Hanson and the Raiders, and the NFL’s Constitution clause allowing for 

arbitration of all disputes between coaches, other than disputes unrelated to and outside 

the course and scope of the employment of such disputants within the League. We are 

not persuaded by Hanson’s reliance on the circumstance that the employment contract’s 
12

“only definition” of a claim subject to arbitration is “ ‘any dispute arising from the terms 

of this Agreement.’ ” The phrase cited by Hanson is part of a sentence that reads: 

“Hanson agrees that all matters in dispute between Hanson and Club, including without 

limitation any dispute arising from the terms of this Agreement, shall be referred to the 

NFL Commissioner for binding arbitration, and his decision shall be accepted as final, 

conclusive, and unappealable.” When read in context, the use of the language “including 

without limitation” connotes the “ ‘illustrative and not limitative’ function of the 

example[ ] given” of a dispute between Hanson and the Raiders that would be subject to 

arbitration. (Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569, 577.) Had Hanson 

and the Raiders intended to limit arbitrable disputes to those arising from the terms of the 

employment contract, there would be no reason to use the phrase “all matters in dispute 

. . . including without limitation.” Thus, we cannot say, as a matter of law, that Hanson’s 

tort claims against Cable were “unrelated to and outside the course and scope” of their 

employment in the League, or did not relate sufficiently to the professional relationship 

of Hanson and the Raiders so as to fall outside the employment contract clause allowing 

for arbitration of “all matters in dispute” between them. 

B. Arguments Concerning Unconscionability 

 We also see no merit to Hanson’s arguments that the arbitration clause should not 

be enforced because it is both procedurally and substantively unconscionable. 7

 As the 

trial court noted, to invalidate a contract term, elements of both procedural and 

substantive unconscionability are required but not in the same degree. (Stirlen v. 

Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.) “ ‘Essentially a sliding scale is 

 

7

 We note that the issue of the standard to be applied in determining whether a 

contract or contract term is substantively unconscionable is presently pending before our 

Supreme Court in Sanchez v. Valencia Holding Company (2011) 201 Cal.App.4th 74, 

review granted March 21, 2012, S199119. We also note the Raiders have asked us to 

consider Sabia v. Orange County Metro Realty, Inc. (2014) 227 Cal.App.4th 11, which 

opinion has been depublished by review granted by our Supreme Court on September 24, 

2014, S220237. The California Rules of Court preclude our consideration of the case and 

we do not further address it. (Cal. Rules of Court, rule 8.1105(a), (e)(1).) 
13

invoked which disregards the regularity of the procedural process of the contract 

formation, that creates the terms, in proportion to the greater harshness or 

unreasonableness of the substantive terms themselves.’ ” (Armendariz, supra, 24 Cal.4th 

at p. 114.) Hanson as “[t]he party opposing arbitration has the burden of proving 

unconscionability.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 244 (Tiri).) 

 Hanson contends the arbitration clause is procedurally unconscionable because his 

employment contract was one of adhesion and he was neither told the NFL Dispute 

Resolution Procedural Guidelines rules would govern an arbitration nor given a copy of 

those rules. However, the trial court rejected Hanson’s assertions, finding there was 

insufficient evidence of an adhesion contract, surprise or oppression, and no evidence 

concerning the accessibility and/or delivery of the NFL Constitution, Bylaws, or Dispute 

Resolution Procedural Guidelines as part of the contracting process.8

 On appeal, Hanson 

argues the court’s ruling was against “the weight of the evidence supplied by both 

parties.” We decline Hanson’s invitation to reweigh the evidence on this point. “[T]he 

applicable standards of appellate review of [an order or] judgment based on affidavits or 

declarations are the same as for [an order or] a judgment following oral testimony: We 

must accept the trial court’s resolution of disputed facts when supported by substantial 

evidence; we must presume the court found every fact and drew every permissible 

inference necessary to support its judgment, and defer to its determination of credibility 

of the witnesses and the weight of the evidence.” (Betz v. Pankow (1993) 16 Cal.App.4th 

919, 923, citing to Griffith Co. v. San Diego College for Women (1955) 45 Cal.2d 501, 

507-508.) Consequently, it was for the trial court as the trier of fact to weigh “all the 

 

8

 In the trial court, Hanson’s written opposition made no mention of his lack of 

access or knowledge of the NFL Constitution, Bylaws, or Dispute Resolution Procedural 

Guidelines during the contracting process. The only reference to the issue occurred 

during oral argument. In response to the court’s questions, Cable’s counsel argued there 

was nothing in Hanson’s opposition papers indicating he was denied access to the NFL 

Constitution, Bylaws, or Dispute Resolution Procedural Guidelines. Further argument by 

all counsel confirmed that there was no admissible evidence in the record demonstrating 

whether or not Hanson had access to or physically received the documents during the 

contracting process. 
14

affidavits, declarations, and other documentary evidence . . . to reach a final 

determination.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 

972.) The trial court could properly “ ‘ reject part of the testimony of a witness, though 

not directly contradicted, and combine the accepted portions with bits of testimony or 

inferences from the testimony of other witnesses thus weaving a cloth of truth out of 

selected available material.’ ” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67.) 

In other words, the trial court was free to reject Hanson’s assertions that he met his 

burden of demonstrating that the arbitration clause was part of an adhesion contract or 

that he was “unfairly surprised” or oppressed by either the arbitration clause or the 

requirement to arbitrate all matters in dispute pursuant to the NFL Dispute Resolution 

Procedural Guidelines. Based on our independent review, the evidence submitted to the 

trial court does not establish that the arbitration clause was procedurally unconscionable 

as a matter of law. 

 Having failed to demonstrate procedural unconscionability, “we need not address 

whether there was a showing of substantive unconscionability.” (Crippen v. Central 

Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1167.) In all events, we are not 

persuaded by Hanson’s arguments that the arbitration clause is substantively 

unconscionable because it lacks mutuality and fails to provide for a neutral third-party 

arbitrator. 

 To support his argument that the arbitration clause fails to impose a bilateral 

obligation on the parties to arbitrate their disputes,9

 Hanson references that portion of the 

arbitration clause which states, “Hanson agrees . . . .” He then argues there is an absence 

of a reciprocal promise in the arbitration clause requiring the Raiders to submit to binding 

arbitration. However, we agree with those appellate courts that have rejected Hanson’s 

 

9

 Hanson did not ask the trial court to consider the issue of lack of mutuality. 

Nonetheless, the court ruled on the matter, finding that lack of mutuality was not an 

issue: “The provision is not one-sided. It does not limit arbitration to only certain 

disputes which would give the Raiders an advantage. It is purely a simple, all-inclusive 

provision which applies equally to both parties requiring private, rather than public, 

resolution of disputes.” 
15

argument that the language used in the arbitration clause lacks mutuality, and thus, is 

substantively unconscionable. (See Tiri, supra, 226 Cal.App.4th at p. 247; Roman v. 

Superior Court (2009) 172 Cal.App.4th 1462, 1473 [rejecting a holding that “the mere 

inclusion of the words ‘I agree’ by one party in an otherwise mutual arbitration provision 

destroys the bilateral nature of the agreement”]; cf. Higgins v. Superior Court (2006) 140 

Cal.App.4th 1238 (Higgins) [unconscionable unilateral obligation to arbitrate found 

where arbitration clause included both “I agree” language and allowed defendant to retain 

right to pursue certain legal remedies]; Flores v. Transamerica HomeFirst, Inc. (2001) 93 

Cal.App.4th 846, 854 [unconscionable unilateral obligation to arbitrate found where 

plaintiffs were required to arbitrate any controversy, while defendant was allowed to 

pursue certain legal remedies].) Hanson complains that any reliance on Roman, supra,

172 Cal.App.4th 1462, is misplaced because his employment contract is far from 

“otherwise mutual.” In support of his argument, he asks us to consider that (1) seven of 

the thirteen paragraphs in the employment contract contain similar “one-sided” language 

(“Hanson agrees . . .”), and (2) “before the arbitration clause a much longer paragraph 

obligates only Hanson – not the Raiders – to ‘abide by and be legally bound by . . . the 

decisions of the Commissioner.’ ” However, we are here concerned only with the 

enforcement of the arbitration clause. We see nothing in the other provisions of the 

employment contract that supports a finding that the arbitration clause “is not bilateral.” 

(Higgins, supra, 140 Cal.App.4th at p. 1254, fn. 14.) Nor do we see anything that 

suggests Hanson’s other obligations under the employment contract “materially affects 

the parties’ arbitration rights and duties.” (Ibid.) 10 

 

10 We recognize that presently pending before our Supreme Court is the following 

issue: “Is an arbitration clause in an employment application that provides ‘I agree to 

submit to binding arbitration all disputes and claims arising out of the submission of this 

application’ unenforceable as substantively unconscionable for lack of mutuality, or does 

the language create a mutual agreement to arbitrate all such disputes? (See Roman v. 

Superior Court (2009) 172 Cal.App.4th 1462).” (Baltazar v. Forever 21, review granted 

Mar. 20, 2013, S208345.) 
16

 We also must reject Hanson’s argument that reversal is required based on his 

argument that the arbitration clause fails to provide for a neutral third-party arbitrator. A 

trial court has “some discretion as to whether to sever or restrict [an] unconscionable 

provision or whether to refuse to enforce the entire agreement [to arbitrate].” 

(Armendariz, supra, 24 Cal.4th at p. 122.) Consistent with its discretionary authority, the 

trial court here determined that Hanson’s employment contract “obliged him to 

participate in the arbitration process set forth in the NFL’s Arbitration Guidelines or 

devised for his case by the Commissioner, but allowed him, if that process resulted in the 

selection of a biased arbitrator to return to court for the appointment of a neutral and 

impartial arbitrator.” Hanson complains that the trial court essentially rewrote the 

arbitration clause, which it purportedly cannot do. However, he relies on selective 

portions of several factually distinguishable state and federal appellate court decisions, 

which are not binding precedent. (See Ajamian v. Cantor CO2e, L.P. (2012) 203 

Cal.App.4th 771, 803; Sanchez v. Western Pizza Enterprises, Inc. (2009) 172 

Cal.App.4th 154, 177-178 (Sanchez);11 Cheng-Canindin v. Renaissance Hotel Assocs. 

(1996) 50 Cal.App.4th 676, 684, 691; and Chavarria v. Ralphs Grocery Co. (9th Cir. 

2013) 733 F.3d 916, 925.) And, more pertinently, binding California Supreme Court 

precedent counsels against reversal of an order compelling arbitration, where, as here, the 

trial court provides a mechanism that allows for the selection of a neutral third-party 

arbitrator. Indeed, the trial court’s ruling is explicitly supported by our Supreme Court’s 

“holding in Scissor-Tail, supra, 28 Cal.3d at page 831. In that case, [the court] found an 

arbitration agreement to be unconscionable because the agreement provided for an 

arbitrator likely to be biased in favor of the party imposing the agreement. (Ibid.) [The 

court] nonetheless recognized that ‘[t]he parties have indeed agreed to arbitrate’ and that 

there is a ‘strong public policy of this state in favor of resolving disputes by arbitration. 

(Ibid.) The court found a way out of this dilemma through the [California Arbitration 

 

11 Sanchez was abrogated in part on another ground in Concepion, supra, 131 S. Ct. 

at pp. 1746, 1752, as stated in Iskanian v. CLS Transportation Los Angeles LLC (2014) 

59 Cal.4th 348, 366.) 
17

Act], specifically Code of Civil Procedure section 1281.6, which provides in part: ‘If the 

arbitration agreement does not provide a method for appointing an arbitrator, the parties 

to the agreement who seek arbitration and against whom arbitration is sought may agree 

on a method of appointing an arbitrator and that method shall be followed. In the 

absence of an agreed method, or if the agreed method fails or for any reason cannot be 

followed, or when an arbitrator appointed fails to act and his or her successor has not 

been appointed, the court, on petition of a party to the arbitration agreement, shall appoint 

the arbitrator.’ Citing this provision, the court stated: ‘. . . [U]pon remand the trial court 

should afford the parties a reasonable opportunity to agree on a suitable arbitrator and, 

failing such agreement, the court should on petition of either party appoint the arbitrator.’ 

(Scissor-Tail, supra, 28 Cal.3d at p. 831.) Other cases, both before and after Scissor-Tail, 

have also held that the part of an arbitration clause providing for a less-than-neutral 

arbitration forum is severable from the rest of the clause. (See Lewis v. Merrill Lynch, 

Pierce, Fenner & Smith, Inc. (1986) 183 Cal.App.3d 1097, 1107 [228 Cal.Rptr.345]; 

Richards v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1976) 64 Cal.App.3d 899, 906 

[135 Cal.Rptr. 26].) [¶] Thus, in Scissor-Tail and the other cases cited above, the 

arbitration statute itself gave the court the power to reform an arbitration agreement with 

respect to the method of selecting arbitrators.” (Armendariz, supra, 24 Cal.4th at 

pp. 125-126.) 

 In sum, we conclude Hanson has failed to demonstrate that the order compelling 

arbitration requires reversal. Accordingly, we affirm the judgment of dismissal entered 

after the confirmation of the arbitration awards. 

DISPOSITION 

 The appeal from the January 23, 2013, order denying the petition to vacate the 

arbitration awards and granting the petition to confirm the awards is dismissed. The 

April 17, 2013, judgment of dismissal is affirmed. Respondents are awarded costs on 

appeal. 
18

 _________________________ 

 Jenkins, J. 

We concur: 

_________________________ 

McGuiness, P. J. 

_________________________ 

Pollak, J.