[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11556

____________________

ISAAC PAYNE, 

Plaintiff-Appellant,

versus

SAVANNAH COLLEGE OF ART AND DESIGN, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-05000-JPB

____________________

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2 Opinion of the Court 22-11556

Before BRANCH and LUCK, Circuit Judges, and BERGER, District 

Judge.

∗

BRANCH, Circuit Judge:

Isaac Payne sued The Savannah College of Art and Design, 

Inc. (“SCAD”) for race discrimination and retaliation after he was 

fired from his job as Head Fishing Coach. As part of his 

employment onboarding, however, Payne signed a document 

agreeing to arbitrate—not litigate—all legal disputes that arose 

between him and SCAD. Accordingly, SCAD moved to dismiss and 

compel arbitration. The district court, approving and adopting the 

magistrate judge’s Report and Recommendation (“R & R”), 

granted SCAD’s motion.

On appeal, Payne argues that the district court erred by 

ignoring that his agreement with SCAD was unconscionable and 

that SCAD waived its right to arbitrate. He also argues that the 

district court abused its discretion in rejecting his early discovery 

request. SCAD counters that (1) Payne freely agreed to a 

substantively fair arbitration provision, (2) SCAD never waived its 

right to arbitrate, and (3) the district court correctly denied Payne’s 

discovery request. After careful review, and with the benefit of oral 

argument, we affirm the district court’s order granting SCAD’s 

motion to dismiss and compel arbitration.

∗ The Honorable Wendy Berger, United States District Judge for the Middle 

District of Florida, sitting by designation.

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22-11556 Opinion of the Court 3

I. Background

A. Facts

The factual details of Payne’s firing do not affect this appeal.1 

Instead, we focus on the facts surrounding his hiring and 

onboarding, particularly the details of his arbitration agreement 

with SCAD.

After accepting the Head Fishing Coach position in August 

2015, Payne attended a new hire orientation. At the orientation, 

Payne signed numerous employment documents, including the 

Staff Handbook Acknowledgement.2 

The Staff Handbook Acknowledgment provided: “I . . . 

acknowledge that I understand that the Staff Handbook contains 

current policies of SCAD, and I agree to read and comply with the 

policies contained in the handbook, including the Alternative 

Dispute Resolution Policy and Agreement . . . .” The 

1 Payne, a black man, alleged that he was fired because of his race and because 

he reported race-based abuse and threats by white student-athletes to SCAD 

leadership. Payne further alleged that when he reported these incidents, 

parents of the student-athletes campaigned to have him fired and SCAD 

complied. SCAD, in part through a declaration from its Executive Director of 

Human Resources, countered that Payne was fired for numerous non-racerelated reasons. Because we ultimately affirm the district court’s approval of 

SCAD’s motion to dismiss and compel, the factual details of Payne’s firing are 

best considered during arbitration.

2 Payne declared that he “do[es] not remember exactly what [he] signed” 

because he was “rushed,” but he admitted that it was his signature on the Staff 

Handbook Acknowledgment. 

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Acknowledgment further referred to the Alternative Dispute 

Resolution Policy and Agreement (“ADRPA”) as “binding on SCAD 

and [SCAD’s employee] as written, unless revised following the 

procedures set out in the ADRPA.” 

The ADRPA was included in the sixty-four-page Staff 

Handbook. The ADRPA began with a bolded title and spanned 

three double-columned pages. In pertinent part, the ADRPA 

provided:

• “[The ADRPA] involves an internal review, 

mediation and binding arbitration to resolve all 

legal disputes that may arise between SCAD 

and an employee.” 

• “The term ‘Dispute’ as used in this ADRPA 

encompasses and includes all legal claims or 

controversies between SCAD and any 

employee . . . including, but not limited to, 

claims arising in contract, tort, fraud, property, 

statutory or common law claims, or equitable 

claims.” 

• “If the parties are unable to resolve the Dispute 

through [internal review and then] mediation, 

then such Dispute may be submitted to 

arbitration at the election of either the 

[e]mployee or SCAD . . . .” 

• “The parties agree that the arbitration shall be 

conducted in accordance with and subject to, 

the rules and procedures set forth in the 

Arbitration Procedures.”

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• “The parties will mutually agree on an 

arbitrator, who must be a retired federal judge 

unless a retired federal judge is not available to 

hear the dispute in a timely manner. The 

selected arbitrator must have a minimum of 5 

years[’] experience in the substantive practice 

area of the Dispute or in arbitrating similar 

types of Disputes.” 

• “In making his/her award, the arbitrator shall 

require the non-prevailing party to bear the 

cost of the arbitrator’s fees, provided however, 

that SCAD will advance the cost of the 

arbitrator’s fees at the initiation of the 

arbitration, subject to reimbursement by the 

employee following arbitration if the 

employee does not prevail.” 

The ADRPA also included an electronic link (as well as 

information on where physical copies could be obtained) to the 

second important document in this case, the Arbitration 

Procedures.3 The Arbitration Procedures supplemented the 

ADRPA by providing additional details about the arbitration 

process.4 

3 The ADRPA also allowed the losing party to appeal the arbitrator’s decision 

to a second arbitrator. 

4 The ADRPA and Arbitration Procedures work hand-in-hand and, for the 

most part, supply the same provisions. On one issue, the location of the 

arbitration, the magistrate judge determined that the ADRPA and Arbitration 

Procedures contradicted one another. Accordingly, the magistrate judge 

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We next outline Payne’s pertinent factual allegations.

Payne declares that, in the event he would lose at arbitration,

he could not afford to pay the arbitrator’s fees. To supplement this 

contention, Payne provides declarations from Professor Imre 

Szalai, who declares that an arbitrator’s fees in a case such as 

Payne’s could range from $9,000 to $39,600, with the caveat that 

“[a] retired federal judge’s rates may be higher,” and Darnell 

Holcomb, who declares that he was fired from SCAD and the risk 

of paying significant arbitration costs discouraged him from 

continuing his discrimination case against SCAD.

Payne, as relevant to his waiver argument considered below, 

also emphasizes the details of SCAD’s dealings with Noah 

Pescitelli, a scholarship-receiving member of the fishing team, who 

resigned from the team after Payne was fired. Pescitelli had 

allegedly complained to SCAD leadership “about some of the same 

issues [Payne] had sought SCAD leadership’s help in resolving.” 

After his resignation, “SCAD approached [Pescitelli] to ask if he and 

his family would sign a ‘Confidential Settlement Agreement’ in 

exchange for a scholarship of $36,630.”5 Pescitelli did not sign the 

agreement. 

severed the provision that was more favorable to SCAD, making the provision 

more favorable to Payne the operative provision. 

5 SCAD argued below that Payne’s statements about the negotiations between 

SCAD and Pescitelli were hearsay. SCAD also contended that Payne had the 

facts wrong and that the confidentiality agreement offered to Pescitelli was in 

no way related to Payne or his potential legal action against SCAD. As 

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B. Procedural History

Before filing this lawsuit, Payne sent SCAD a demand letter

providing that he was “prepared to file litigation in federal court” 

if SCAD was not willing to settle for a certain amount. SCAD’s

initial response referenced Payne’s “binding arbitration agreement 

with SCAD.” SCAD later provided a copy of Payne’s “signed 

agreement to be bound by SCAD’s [arbitration] policy and 

procedures, as well as a copy of the [arbitration] procedures 

manual.” Despite SCAD reiterating that Payne had previously 

agreed to arbitration, Payne filed suit in the Northern District of 

Georgia.

After a series of motions and orders,6 SCAD filed its Motion 

to Dismiss and Compel Arbitration (“MTD/MCA”). Payne then 

filed a Motion to Take Limited Early Discovery on Issues of 

Arbitrability (“Discovery Motion”). The magistrate judge’s R & R 

support, SCAD provided a declaration from Dr. Phil Aletto, SCAD’s Senior 

Vice President for Admission and Student Success, that discussed SCAD’s 

process of disbanding the fishing teams. Aletto declared that “all then-current 

members of the Fishing Teams” were offered “to maintain and continue 

[their] athletic scholarships,” but such an offer did not extend to Pescitelli 

because “he had already quit the Fishing Teams.” Accordingly, when 

Pescitelli threatened legal action against SCAD, “SCAD offered to reinstate 

[Pescitelli’s] athletic scholarship . . . in exchange for a general release of claims 

reflected in a proposed settlement agreement” that included “a standard 

confidentiality clause.” 

6 The procedural complexities preceding the magistrate judge’s R & R are not 

important to this appeal.

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recommended that SCAD’s MTD/MCA be granted, and Payne’s 

Discovery Motion be denied. 

The district court adopted the R & R, noting that the R & R 

was “thorough” and “carefully addressed each of the parties’ 

contentions.” In pertinent part, the district court agreed that

(1) the arbitration agreement was not unconscionable,7

(2) SCAD—by offering a settlement agreement to Pescitelli—did 

not waive its rights to arbitrate its dispute with Payne, and 

(3) Payne’s Discovery Motion should be denied.8 Accordingly, the 

district court ordered Payne to submit his dispute to arbitration. 

Payne appeals. 

II. Standard of Review

“We review de novo an order granting a motion to dismiss a 

complaint and compel arbitration.” Young v. Grand Canyon Univ., 

Inc., 980 F.3d 814, 818 n.3 (11th Cir. 2020).

“We review the [d]istrict [c]ourt’s ruling on discovery 

matters only for abuse of discretion.” Khoury v. Miami-Dade Cnty. 

7 Payne’s unconscionability argument was multi-faceted. He argued that the 

ADRPA was unconscionable because (1) its cost-shifting provision carried 

potentially significant costs that inhibited his ability to vindicate his rights, 

(2) its arbitrator-selection provision limited the pool of arbitrators to two 

white men, (3) it contained a confidentiality provision, and (4) it included 

provisions that were indefinite, non-conspicuous, and non-mutual. 

8 The R & R concluded that “[t]here [was] not good cause for allowing 

[Payne’s] discovery [requests]” because his “waiver arguments to which [his] 

discovery requests relate[d] unequivocally fail[ed].” The district court agreed. 

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22-11556 Opinion of the Court 9

Sch. Bd., 4 F.4th 1118, 1125 (11th Cir. 2021). “District judges are 

accorded wide discretion in ruling upon discovery motions, and 

appellate review is accordingly deferential.” Harris v. Chapman, 97 

F.3d 499, 506 (11th Cir. 1996).

III. Discussion9

Payne brings four arguments on appeal. First, Payne

contends that the district court erred in determining that the 

ADRPA is not unconscionable. Second, and relatedly, Payne argues 

that the agreement’s unconscionable provisions should not be 

severed from the agreement; rather, he contends that the entire 

agreement is unenforceable. Third, Payne argues that the district 

court erred in determining that SCAD did not waive its right to 

arbitrate. Fourth, Payne argues that the district court erred in not 

permitting him to take early discovery on issues of arbitrability. We 

address each argument in turn.

A. Unconscionability

Payne argues that the arbitration agreement is 

unconscionable for a number of reasons. First, Payne argues that 

the cost-shifting provision is substantively unconscionable because

the risk of having to pay the arbitrator’s fees will force him to 

abandon his claim; thus, the provision prevents him from 

vindicating his rights. Second, Payne argues that the arbitrator9 The parties’ 2015 agreement is the operative arbitration agreement. The 

ADRPA allowed SCAD to modify the agreement as long as it provided 30 

days’ written notice to its employee. SCAD’s attempted amendment in 2019

failed because it did not provide Payne the required notice.

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selection provision is substantively unconscionable because it limits 

the pool of arbitrators to two white men, which he argues 

undermines the neutrality of any potential proceeding. Third, 

Payne argues that the agreement is procedurally unconscionable as 

evidenced by a number of provisions that are either indefinite or

non-mutual. 

The unconscionability standard is hard to satisfy under 

Georgia law.10 The Supreme Court of Georgia has described an 

unconscionable contract as “one that no sane man not acting under 

a delusion would make and that no honest man would take 

advantage of, one that is abhorrent to good morals and conscience, 

and one where one of the parties takes a fraudulent advantage of 

another.” Innovative Images, LLC v. Summerville, 848 S.E.2d 75, 83 

(Ga. 2020) (quotations omitted); see also BMW Fin. Servs. N.A., Inc. 

v. Smoke Rise Corp., 486 S.E.2d 629, 630 (Ga. Ct. App. 1997) 

(concluding that a contract provision was not unconscionable

because it did not “shock the conscience,” among other 

considerations). “Under Georgia law, procedural 

unconscionability addresses the process of making the contract, 

10 The parties agree that Georgia law governs but disagree over the proper 

Georgia law standard for unconscionability. Whereas SCAD contends that 

“Georgia law requires both procedural and substantive unconscionability for 

a contract to be struck down as unconscionable,” Payne argues that “both 

need not be present in the same quantum to render a contract 

unconscionable.” Because we ultimately conclude that the arbitration 

agreement is neither procedurally nor substantively unconscionable, we need 

not resolve this dispute over Georgia law because Payne fails to prove 

unconscionability under either standard.

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while substantive unconscionability looks to the contractual terms 

themselves.” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1377 

(11th Cir. 2005) (alteration adopted and quotation omitted).

As for procedural unconscionability, well-established 

Georgia law provides that “the mere existence of an arbitration 

clause does not amount to unconscionability.” Saturna v. Bickley 

Constr. Co., 555 S.E.2d 825, 827 (Ga. Ct. App. 2001) (quotation 

omitted). Rather, “where . . . a binding arbitration agreement is 

bargained for and signed by the parties, it is the complaining party 

that bears the burden of proving that it was essentially defrauded 

in entering the agreement.” Innovative Images, 848 S.E.2d at 83. 

Factors that play a role in the procedural unconscionability 

determination include the “age, education, intelligence, business 

acumen and experience of the parties, their relative bargaining 

power, the conspicuousness and comprehensibility of the contract 

language, the oppressiveness of the terms, and the presence or 

absence of a meaningful choice.” NEC Techs., Inc. v. Nelson, 478 

S.E.2d 769, 772 (Ga. 1996).

“As to the substantive element of unconscionability, courts 

have focused on matters such as the commercial reasonableness of 

the contract terms, the purpose and effect of the terms, the 

allocation of risks between the parties, and similar public policy 

concerns.” Id.

With this legal framework in mind, we address Payne’s 

various unconscionability arguments.

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i. Substantive Unconscionability

We start with substantive unconscionability.

a. Cost-Shifting Provision

The ADRPA’s cost-shifting provision provides: 

In making his/her award, the arbitrator shall require 

the non-prevailing party to bear the cost of the 

arbitrator’s fees, provided however, that SCAD will 

advance the cost of the arbitrator’s fees at the 

initiation of the arbitration, subject to 

reimbursement by the employee following 

arbitration if the employee does not prevail. 

Payne alleges that this provision is substantively unconscionable 

because it “serves no purpose other than . . . dissuad[ing] potential 

claimants from pursuing their rights under the law.” Payne’s 

evidence included a law professor’s declaration that calculated the 

likely costs of arbitrating Payne’s claims, Payne’s own declaration 

about the effect that the costs would have on his family, and the 

declaration of another employee who arbitrated against SCAD but 

withdrew his arbitration allegedly due to the risk of incurring 

significant costs if he lost. SCAD counters that the district court 

correctly determined that “Payne’s evidence is [too] speculative at 

this stage of the litigation” (i.e., Payne may win in arbitration and

would not be required to pay anything) such that his substantive 

unconscionability argument must fail under our precedents. 

We start with Payne’s argument that our case that rejected a 

similar argument against cost-shifting provisions, Musnick v. King 

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Motor Company of Fort Lauderdale, 325 F.3d 1255 (11th Cir. 2003), has 

been abrogated in relevant part by the Supreme Court’s holding in 

Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008). 

In Musnick, we analyzed an arbitration agreement’s “loser 

pays” provision that Musnick challenged on the ground that “the 

provision . . . awarding costs and fees to the prevailing party 

rendered it unenforceable.” 325 F.3d at 1257. We concluded that 

Musnick’s challenge failed for the following reasons. To start, we 

set out the proper standard: “The party seeking to avoid 

arbitration . . . has the burden of establishing that enforcement of 

the agreement would preclude him from effectively vindicating 

[his] federal statutory right in the arbitral forum.” Id. at 1259 

(quotations omitted). Then, we determined that Musnick’s

evidence was “too speculative” to render his agreement 

unenforceable because he had not shown that he was likely to lose 

his arbitration. Id. at 1260. Stated differently: “Whether Musnick 

[would], in fact, incur attorneys’ fees . . . depend[ed] entirely on 

whether he prevail[ed] in arbitration. If he [did], he [would] incur 

no fees . . . [and would] not have been deprived of any statutory 

right or remedy . . . .” Id. at 1261. Next, we also noted that 

Musnick’s evidence, which was merely a statement that he feared 

he would be unable to pay an award of attorneys’ fees against him, 

was “wholly inadequate to establish” that he was inhibited from 

vindicating his rights. Id. at 1260. Finally, we buttressed our 

analysis by stating that Musnick, if he were to lose, would have the 

ability to challenge the arbitrator’s award of attorneys’ fees in 

federal court. Id. at 1261 (explaining that “arbitration awards may 

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be vacated if they are in manifest disregard of the law” (quotation 

omitted)).

Payne argues that the Supreme Court’s decision in Hall Street

abrogated Musnick “in relevant part” by “severely limit[ing] any 

right of appeal to a court.” See Hall Street, 552 U.S. at 590. While 

he accurately characterizes Hall Street’s effect on Musnick’s third

point (regarding the losing party’s ability to challenge an arbitral 

award in federal court), he is incorrect that Hall Street should end 

our reliance on Musnick. 325 F.3d at 1261. In Hall Steet, the 

Supreme Court simply limited review of arbitration awards under 

the Federal Arbitration Act (“FAA”) to the Act’s textually-provided 

avenues—thereby limiting the amorphous “manifest disregard of 

the law” category that had developed in prior caselaw.11 Hall Street, 

11 Sections 10 and 11 of the FAA provide for limited review of an arbitration 

award. 9 U.S.C. §§ 10, 11. For example, Section 10 provides the following 

four avenues for challenging an arbitration award:

(a) In any of the following cases the United States court in and 

for the district wherein the award was made may make an 

order vacating the award upon the application of any party to 

the arbitration—

(1) where the award was procured by corruption, fraud, 

or undue means; 

(2) where there was evident partiality or corruption in the 

arbitrators, or either of them; 

(3) where the arbitrators were guilty of misconduct in 

refusing to postpone the hearing, upon sufficient cause 

shown, or in refusing to hear evidence pertinent and 

material to the controversy; or of any other 

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552 U.S. at 585, 590. Following Hall Street, in Frazier v. CitiFinancial 

Corp., LLC, we followed suit, foreclosing wide-ranging challenges 

to arbitration awards: “We hold that our judicially-created bases for 

vacatur are no longer valid in light of Hall Street.” 604 F.3d 1313, 

1324 (11th Cir. 2010). See also White Springs Agric. Chems., Inc. v. 

Glawson Invs. Corp., 660 F.3d 1277, 1282–83 (11th Cir. 2011) 

(declining to review a challenge to an arbitration award because 

“[e]ven though [appellant] presents its argument in terms of the 

FAA, [appellant] asks us to do what we may not—look to the legal 

merits of the underlying award”).

But the linchpin of Musnick—which was unaffected by Hall 

Street—is the requirement that appellants demonstrate that they 

are likely to bear prohibitive costs (i.e., that their costs are not 

merely speculative). Musnick, 325 F.3d at 1261. We have 

emphasized this point in our more recent case law. For example, in 

Escobar v. Celebration Cruises Operator, Inc., 805 F.3d 1279, 1291 (11th 

Cir. 2015), we interpreted Musnick to mean that a plaintiff’s 

“[s]peculative fear of high fees” would be insufficient to satisfy his 

burden to “prove the likelihood of prohibitive costs.” Thus, postmisbehavior by which the rights of any party have 

been prejudiced; or 

(4) where the arbitrators exceed their powers, or so 

imperfectly executed them that a mutual, final, and 

definite award upon the subject matter submitted was 

not made.

Id. § 10(a).

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Hall Street we have explicitly stated that the likely-to-bearprohibitive-costs prong is still intact such that Musnick remains 

good law. See, e.g., United States v. Kaley, 579 F.3d 1246, 1255 (11th 

Cir. 2009) (“In addition to being squarely on point, the doctrine of 

adherence to prior precedent also mandates that the intervening 

Supreme Court case actually abrogate or directly conflict with, as 

opposed to merely weaken, the holding of the prior panel.” (emphasis 

added)).

Putting it all together, for Payne to prove that his arbitration 

agreement with SCAD is unconscionable because of the

agreement’s cost-shifting provision, he must provide evidence of

“(1) the amount of fees he is likely to incur and (2) his inability to 

pay those fees.” Suazo v. NCL (Bahamas), Ltd., 822 F.3d 543, 554

(11th Cir. 2016) (quoting Escobar, 805 F.3d at 1291 (internal 

quotations omitted)). He cannot satisfy the first step. The 

“problem” for Payne is that he might win. And if he were to 

prevail, SCAD would be required to pay for the arbitration. Thus, 

Payne has not shown that he is “likely to incur” any costs 

whatsoever and cannot prevail under the standards we have set 

forth.12 See Musnick, 325 F.3d at 1261.

Our conclusion is further supported by other 

considerations.

12 Payne’s request that we ignore our binding precedent in favor of the law 

recited in an out-of-Circuit, district court case, Crespo v. Kapnisis, No. 21-cv6963, 2022 WL 2916033 (E.D.N.Y. July 25, 2022), necessarily fails.

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First, we have recognized that an appellant’s rights are less 

threatened when an appellant is not required to pay the arbitration 

costs up front. See Escobar, 805 F.3d at 1292 (emphasizing that 

appellant’s challenge was “premature” because the “cost-splitting 

clause state[d] that [appellee] will pay ‘the initial cost of 

arbitration’”). Such is the case here where SCAD is advancing the 

costs of arbitration.13 That is, Payne will not be excluded from the 

arbitral forum, and he will have the ability to vindicate his rights 

through the arbitration process to which he agreed. 

Second, Payne’s instant appeal is even more speculative 

because of a unique feature of the Arbitration Procedures which 

provides for an appeal to a second arbitrator: “The awards and 

orders of the Arbitrator shall be final and binding unless, within 

thirty (30) days of service of the Arbitrator’s final award, a party 

serves notice to the other parties of the arbitration of intent to 

appeal the Arbitrator’s awards and orders to a second Arbitrator.” 

Thus, Payne’s appeal is especially speculative in the sense that (1) he 

has brought his case before arbitration can determine the winner 

and loser, and (2) even the result of the first arbitration could be 

appealed to a second arbitrator. Payne contends that this provision 

cuts in his favor because the additional costs of a second arbitration 

would further increase the ADRPA’s deterrent effect. But that 

13 The ADRPA provided that “[i]n making his/her award, the arbitrator shall 

require the non-prevailing party to bear the cost of the arbitrator’s fees, 

provided however, that SCAD will advance the cost of the arbitrator’s fees at 

the initiation of the arbitration . . . .” 

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argument ignores that the second appeal is optional. We look to 

this provision only to emphasize the exceptionally speculative 

nature of Payne’s complaint at the current stage.

Third, Payne argues that because he provided evidence

extensively detailing the potential costs of arbitration, and the 

effect that those costs would have on his livelihood, his claim is less 

“speculative” than the generalized grievance in Musnick. 325 F.3d 

at 1260 (finding Musnick’s mere recitation that he “genuinely 

fear[ed] the imposition of attorney’s fees” because he would be 

“unable to pay” “wholly inadequate to establish that the arbitration 

would result in prohibitive costs that [would] force him to 

relinquish his claim”). True. Payne’s evidence included a law 

professor’s declaration that calculated the likely costs of arbitrating 

Payne’s claims, Payne’s declaration about the effect the costs would 

have on his family, and the declaration of another employee who 

withdrew his arbitration claim against SCAD allegedly out of fear 

of incurring significant costs if he lost. But Payne conflates the 

likelihood that there will be arbitration costs (not a factor under 

our precedent) with the likelihood that he will incur those costs (the 

touchstone of our analysis).14 Thus, while he must bring evidence 

14 Payne also argues that “the cost-shifting is not speculative, as the ADRPA 

shifts the arbitrator’s fees . . . to the non-prevailing party, and this is a nondiscretionary contractual obligation.” This argument suffers from the same 

conflation. Our precedent is not concerned with whether fees themselves are 

“speculative,” but with whether it is “speculative” that the party challenging 

the arbitration agreement will be the party that has to pay those fees. Musnick, 

325 F.3d at 1261 (“Whether Musnick will, in fact, incur attorneys’ fees in this 

matter depends entirely on whether he prevails in arbitration.”) Payne 

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of his potential costs (and he has), such a showing is insufficient 

when Payne has not satisfied our primary consideration—showing 

that he is “likely” to incur those costs.

Finally, we reemphasize that these terms are part of an

agreement into which Payne voluntarily entered. As such, he has 

the burden of establishing that the agreement is substantively 

unfair. For the reasons above, Payne has not satisfied his burden, 

and we conclude that the cost-shifting provision is not substantively 

unconscionable. See Innovative Images, 848 S.E.2d at 83–84.

b. Arbitrator Selection Provision

Payne also contends that the ADRPA is substantively 

unconscionable because the arbitrator-selection provision would 

“effectively limit the pool of arbitrators to two White men.” Aside 

from the fact that Payne’s estimation is questionable, he has cited 

absolutely no authority for his contention that it would be 

unconscionable for Payne’s arbitration to be conducted by a white 

arbitrator. Thus, he has not carried his burden on this point.15

counters that employees often lose employment arbitration disputes, but that 

argument is also speculative because generalized statistics do not account for 

the individual facts of his case. Indeed, if Payne did not believe his claim was 

meritorious, then he would have had little reason to initiate this lawsuit.

15 Payne also argues that “[t]he ADRPA is unconscionable because its method 

of selecting arbitrators gives SCAD unilateral control to select the arbitrator.” 

The ADRPA, however, provides that “[t]he parties will mutually agree on an 

arbitrator,” and this understanding is confirmed in the Arbitration Procedures 

that give each party equal rights on proposing and striking potential 

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20 Opinion of the Court 22-11556

ii. Procedural Unconscionability

Turning to Payne’s arguments as to procedural 

unconscionability, he argues that various terms in the ADRPA and 

Arbitration Procedures are either indefinite (i.e., the court is left to 

ascertain the intention of the parties by conjecture) or non-mutual

(i.e., the agreement confers certain rights on SCAD but not Payne)

such that the arbitration agreement is procedurally 

unconscionable. We disagree, especially in light of the demanding 

standard for satisfying procedural unconscionability which requires 

“the complaining party” to prove “that it was essentially defrauded 

in entering the agreement.” Innovative Images, 848 S.E.2d at 83. 

“The law does not favor destruction of contracts on grounds 

of uncertainty.” Kitchen v. Insuramerica Corp., 675 S.E.2d 598, 601 

(Ga. Ct. App. 2009); see also O.C.G.A. § 13-2-2(4) (“The construction 

which will uphold a contract in whole and in every part is to be 

preferred, and the whole contract should be looked to in arriving 

at the construction of any part[.]”). With that said, “indefiniteness 

in subject matter so extreme as not to present anything upon which 

the contract may operate in a definite manner renders the contract 

void.” Fay v. Custom One Homes, LLC, 622 S.E.2d 870, 872–73 (Ga. 

Ct. App. 2005) (alteration adopted and quotation omitted). And 

“[a] contract cannot be enforced if its terms are incomplete, vague, 

arbitrators. Thus, Payne’s argument fails because it is directly contrary to the 

terms of the agreement.

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22-11556 Opinion of the Court 21

indefinite[,] or uncertain.” Aukerman v. Witmer, 568 S.E.2d 123, 126 

(Ga. Ct. App. 2002) (quotation omitted).

“Georgia law provides that an arbitration provision is not 

unconscionable because it lacks mutuality of remedy.” Caley, 428

F.3d at 1378 (alterations adopted and quotation omitted); see also 

Saturna, 555 S.E.2d at 827 (“[T]he fact that [one party] had 

additional means of redress available [that were not available to the 

other party] did not render the contract unenforceable due to 

unconscionability.”). The lack of mutuality is not detrimental 

because arbitration is intended to offer “simplicity, informality, and 

expedition.” Id. (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 

U.S. 20, 31 (1991)).

a. Indefiniteness

Payne argues that three terms in the ADRPA and Arbitration 

Procedures are either ambiguous or contradictory and, therefore, 

indefinite.

First, Payne argues that the terms in the respective 

agreements governing the selection of an arbitrator are

contradictory.16 Specifically, he points to the Arbitration 

16 The terms that Payne points to provide the following:

[ADRPA]: The parties will mutually agree on an arbitrator, 

who must be a retired federal judge unless a retired federal 

judge is not available to hear the dispute in a timely manner. 

The selected arbitrator must have a minimum of 5 years[’] 

experience in the substantive practice area of the Dispute or in 

arbitrating similar types of Disputes.

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22 Opinion of the Court 22-11556

Procedures’ use of the term “mediator” (rather than arbitrator) in 

one instance as proof that the ADRPA and Arbitration Procedures 

contradict one another. However, we find the language concerning 

arbitration to be clear. That the document may also provide for a 

mediator or may include a scrivener’s error does not change our 

conclusion. In any event, this small discrepancy is nowhere near 

enough to clear the high bar for proving unconscionability under 

Georgia law. Innovative Images, 848 S.E.2d at 83; see also O.C.G.A. 

§ 13-2-2(4) (“The construction which will uphold a contract in 

whole and in every part is to be preferred, and the whole contract 

should be looked to in arriving at the construction of any part[.]”).

Second, Payne argues that the ADRPA and Arbitration 

Procedures are contradictory because the ADRPA requires an 

employee seeking to initiate the dispute resolution process to 

“mak[e] a written request to the vice president for human 

[Arbitration Procedures]: Within a reasonable time after 

receiving the Request for Arbitration, the Vice President of 

Human Resources or a designated representative, and the 

employee or his/her designated representative, shall each 

submit to the other a list of four (4) proposed Arbitrators. The 

arbitrator will be selected by mutual agreement of the parties. 

When submitting the list of proposed arbitrators, each party 

agrees that all proposed arbitrators shall have a minimum of 

five (5) years of previous experience or background in the 

subject matter of the arbitration. In addition, the parties agree 

that the proposed mediators shall include as many retired 

federal judges as possible who are available to hear the dispute 

in [a] timely manner.

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22-11556 Opinion of the Court 23

resources,” while the Arbitration Procedures require “[a] party 

who desires to submit a legal claim to arbitration [to] submit a 

completed Request for Arbitration to the College’s Vice President 

of Human Resources.” We agree with the magistrate judge’s 

analysis that these terms are “not contradictory” because although 

“[t]he terms may be worded slightly different[,] . . . they clearly are 

referencing the same step in the alternative dispute resolution 

process.” This miniscule difference is certainly not “extreme” 

enough for Payne’s challenge to prevail. Fay, 622 S.E.2d at 872.

Third, Payne argues that the ADRPA’s “in effect” provision 

is ambiguous because it does not specify which agreement will 

govern a dispute: “SCAD retains the right to modify or terminate 

this ADRPA and the Arbitration Procedures on thirty days’ written 

notice. The policy, if any, in effect at the time a request for 

mediation and/or arbitration is initiated, will govern the process 

by which the Dispute is resolved.” This provision is not ambiguous

in any way; the policy “in effect” was the policy that both parties 

agreed to—the 2015 ADRPA and the related Arbitration 

Procedures. As stated previously, we agree with the district court 

that because SCAD’s attempted amendment in 2019 failed for lack 

of notice, the parties’ 2015 agreement is the operative one.

b. Mutuality

Payne also argues that “[t]he ADRPA and [the Arbitration 

Procedures] have a number of non-mutual provisions that make 

them procedurally unconscionable.” Payne’s main focus is a 

provision allowing SCAD (but not its employees) to bypass internal 

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24 Opinion of the Court 22-11556

review and mediation and fast-forward the dispute resolution

process to arbitration: “At its option, SCAD may elect to bypass one 

or more steps prior to arbitration for Disputes with the employee.” 

Although Payne contends that there are “numerous” non-mutual 

provisions, he cites only two and his second argument merely 

repackages his first.17 

Payne’s argument simply cannot survive because although 

he indicates that at least one provision (allowing SCAD to bypass 

certain dispute resolution steps) provides SCAD a right that is not 

also bestowed on him, the cited provision is minor, and similar nonmutual provisions have passed muster under Georgia law. See

Saturna, 555 S.E.2d at 826–27 (determining that a contract that 

provided “additional means of redress” to one party did not render 

the contract unconscionable for being non-mutual). We conclude 

that the non-mutual provisions are not detrimental to the contract

and Payne was not “essentially defrauded” in entering this 

arbitration agreement. Innovative Images, 848 S.E.2d at 83.

* * *

Simply stated, we agree with the district court’s finding that

Payne’s arguments on this small subset of provisions “do not put 

17 We note that Payne does not complain about the non-mutual provision that 

requires SCAD to advance the costs of the arbitration (i.e., a non-mutual 

provision that benefits Payne). 

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22-11556 Opinion of the Court 25

the agreement over the very high bar for finding unconscionability 

under Georgia law.”18 See Innovative Images, 848 S.E.2d at 83.

B. Waiver

Payne argues that SCAD—by asking Pescitelli (a former 

member of the fishing team) to sign a confidentiality agreement 

when attempting to resolve a lawsuit threatened by Pescitelli

roughly a year before Payne’s legal action—has somehow waived 

its right to arbitrate Payne’s claim. Payne contends that, by 

entering or attempting to enter into confidentiality agreements

with student-athletes19 who could participate or provide 

information related to Payne’s claims, SCAD has cut Payne off 

from effective pre-hearing discovery from third parties. Such 

preclusive efforts, in Payne’s view, constitute interference with 

third-party litigation and result in waiver of arbitrability. 

Our waiver doctrine is typically implicated when parties 

have “invoked the litigation machinery” before reversing course

and claiming that arbitration was the proper avenue all along. 

Gutierrez v. Wells Fargo Bank, NA, 889 F.3d 1230, 1236 (11th Cir. 2018) 

18 Because we conclude that there are no unconscionable provisions in the 

ADRPA or the Arbitration Procedures, we need not address Payne’s argument 

regarding severability. 

19 Payne tries to broaden the scope beyond Pescitelli by arguing that “[t]he 

question of whether SCAD entered into confidential settlement agreements 

with other former Fishing Team members . . . could only be answered 

through discovery.” We do not bite at this last-ditch argument because 

Payne’s waiver argument is altogether meritless.

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26 Opinion of the Court 22-11556

(alteration adopted and quotation omitted); see also Morgan v. 

Sundance, Inc., 142 S. Ct. 1708, 1711 (2022) (“Sometimes, 

[defendants] engage in months, or even years, of litigation—filing 

motions to dismiss, answering complaints, and discussing 

settlement—before deciding they would fare better in arbitration. 

When that happens, the court faces a question: Has the defendant’s 

request to switch to arbitration come too late?”).

As an initial matter, Payne asks us to apply our waiver 

doctrine in a novel manner.20 We have never held that a party 

waives its right to arbitrate based on its actions taken in a previous 

legal action—especially when that party did not bring the lawsuit 

at bar and has repeatedly insisted that arbitration is the proper 

dispute resolution channel. And we decline to do so now. Rather, 

because SCAD (1) has not engaged in extensive use of the litigation 

process, (2) alerted Payne before he filed suit that his dispute must 

be arbitrated, and (3) promptly filed its MTD/MCA, we hold that 

SCAD has not waived its ability to insist on arbitrating Payne’s 

claim per their agreement.

C. Early Discovery

Payne’s final challenge on appeal is that the district court 

“erred in not permitting [him] to take limited early discovery on 

issues of arbitrability.” In particular, Payne sought SCAD’s 

communications with “prospective witnesses” such as Pescitelli 

20 Payne admits as much. He characterizes his wavier argument as one that 

“appears to be of first impression.” 

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22-11556 Opinion of the Court 27

and details of “SCAD’s past arbitrations with employees and 

former employees.” The district court determined that because 

each of Payne’s arguments failed, “there [was] no reason to allow 

discovery regarding the validity and enforceability of the 

arbitration agreement.” We conclude that the district court’s 

analysis of the underlying arbitration agreement was sound. 

Accordingly, the district court did not abuse its discretion in

overruling Payne’s unnecessary discovery request. Harris, 97 F.3d 

at 506 (“District judges are accorded wide discretion in ruling upon 

discovery motions, and appellate review is accordingly 

deferential.”).

IV. Conclusion

Payne agreed to arbitrate his legal disputes against SCAD. 

Attempting to evade his agreement, Payne searchesfor a legal hook 

that will catch him a break. He has not found it; rather, we 

conclude that his arbitration agreement is neither substantively nor 

procedurally unconscionable, that SCAD did not waive its right to 

enforce arbitration, and that the district court did not abuse its 

discretion in overruling Payne’s request for early discovery. In 

short, we conclude that Payne is bound by his agreement to 

arbitrate his legal claims against SCAD.

AFFIRMED.

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