1

 The “Certificate of Insurance” issued March 19, 2002 to the Nets insuring its player

Todd MacCulloch, subsequently assigned to the Philadelphia 76ers, states, “Arbitration shall be

held in a location agreed to by the parties. If no location can be agreed upon, arbitration shall be

held at the then current main corporate office of the American Arbitration Association.” See

certificate, Exhibit “A” to plaintiff’s amended complaint, at 11. A letter from Linda L. Beyea, a

supervisor at AAA, dated October 8, 2004, states, “The parties agreed that the locale of the

hearing . . . will be determined after the panel has been appointed.” See Exhibit “A” to the

“Memorandum of Law of Plaintiff Philadelphia 76ers L.P. in Opposition to Defendant Trust

Mark Insurance Company’s Motion to Dismiss or Transfer Venue and Motion for and

Emergency Stay of Plaintiff’s Pending Motion to Compel Arbitration.” Former Third Circuit

Chief Judge John Gibbons has been chosen as chair of the arbitral tribunal by the arbitrators

selected by the 76ers and Trustmark. The location issue is now ready for determination by the

parties in default of which the arbitration will proceed at the corporate headquarters of AAA,

which are situated in New York City. Approximately 12 days should be sufficient time for the

76ers and Trustmark to reach an agreement if they are going to do so.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PHILADELPHIA 76ERS L.P. : CIVIL ACTION

:

v. :

: No. 04-4972

TRUSTMARK INSURANCE COMPANY, et al. :

ORDER - MEMORANDUM

AND NOW, this 10th day of December, 2004, upon oral argument, the motion of

plaintiff the Philadelphia 76ers L.P. to compel arbitration is denied. Federal Arbitration Act, 9

U.S.C. §4. The motion to dismiss or transfer venue of defendant Trustmark Insurance Company is

denied without prejudice. Fed. R. Civ P. 12(b)(6).

The 76ers and Trustmark are granted until Wednesday, December 22, 2004, within which

to agree on a location for the hearing in Philadelphia 76ers, L.P. v. Trust Mark Insurance Company,

No. 14 195 Y 01711 04, presently pending before the American Arbitration Association. If an

agreement is not reached by that date, the arbitration shall proceed in New York in accordance with

the terms of the arbitration forum selection provision.1 This court shall retain supervision to enforce

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PHILADELPHIA 76ERS L.P. v. TRUSTMARK INSURANCE COMPANY et al Doc. 19

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2

 The “Certificate of Insurance” defines a “Temporary Total Disability”: “The inability of

an Insured Player to perform the duties of a professional basketball player in the NBA which: 1.

Is due to Injury or Sickness; and 2. Is certified by a Physician.”

3

 In pertinent part, the form states, “Any defenses, counterclaims, or offset rights the

Insurer may have against the Assignor are waived as against the Assignee.” See Exhibit “D” to

plaintiff’s Demand for Arbitration, appended as Exhibit “A” to plaintiff’s amended complaint.

2

the arbitration forum selection provision in the event that the parties to the agreement do not comply

with it. Arbitrability is not an issue; however, hearing location remains unresolved. Consequently,

Trustmark’s motion to dismiss or to transfer venue must be denied at this time.

As background, the 76ers acquired MacCulloch from the Nets in 2002 and received an

assignment of the certificate of insurance issued by Trustmark under the “Master Policy” issued to

the National Basketball Association covering professional basketball players.2 Thereafter,

MacCulloch turned out to be permanently incapacitated. Trustmark denied coverage, maintaining

that the Nets’ insurance application contained material misrepresentations. An “ABSOLUTE

ASSIGNMENT OF DISABILITY POLICY FORM,” executed by the Nets, the 76ers and Trustmark

at the time of the trade, contains a waiver of defenses assertable against the assignee.3 Trustmark’s

position is that the 76ers were privy to the misrepresentations. According to the 76ers, $25 million

is at stake.

Trustmark joined the Nets in the arbitration proceeding commenced by the 76ers and also

filed a separate arbitration proceeding against the Nets. The 76ers move this court to compel

arbitration solely between itself and Trustmark and to direct that the arbitrators resolve, as a 

Case 2:04-cv-04972-EL Document 19 Filed 12/10/2004 Page 2 of 3
4

 “[A]n action to compel arbitration under the [FAA] accrues only when the respondent

unequivocally refuses to arbitrate, either by failing to comply with an arbitration demand or by

otherwise unambiguously manifesting an intention not to arbitrate the subject matter of the

dispute.” Painewebber, Inc. v. Faragalli, 61 F.3d 1063, 1066 (3d Cir. 1995). Here, Trustmark

has not refused to arbitrate. Instead, the arbitration has proceeded within the framework of the

arbitration provision in the certificate. Procedural issues, such as the propriety of the joinder of

the Nets in the 76ers’ arbitration and the order in which substantive issues should be decided, are

not within the scope of this court’s limited role in FAA cases. “‘The role of the courts is limited

to determining two issues: i) whether a valid agreement or obligation to arbitrate exists, and ii)

whether one party to the agreement has failed, neglected or refused to arbitrate.’” Jacobs v. USA

Track & Field, 374 F.3d 85, 88 (2d Cir. 2004), quoting Shaw Group Inc. v. Triplefine Int’l Corp.,

322 F.3d 115, 120 (2d Cir. 2003); PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir.

1990)(before compelling arbitration under FAA, court engages in limited review to determine

whether agreement to arbitrate exists and whether specific dispute falls within scope of

agreement; merits are to be considered by arbitrators, not court).

3

threshold issue, the efficacy of the waiver provision. The National Basketball Association also asks

to be heard on this matter. Given the strictures of the Federal Arbitration Act, 9 U.S.C. § 1, et seq.,

the 76ers’ motion must be denied as outside our purview.4

BY THE COURT:

s/ EDMUND V. LUDWIG

Edmund V. Ludwig, J.

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