UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50339

RICHARD BROOK,

Plaintiff-Appellee,

v.

PEAK INTERNATIONAL, LTD.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

Austin Division

June 13, 2002

Before JONES, WIENER and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Brook and Peak International, Ltd., Brook’s former

employer, arbitrated their contractual dispute before an arbitrator

selected by the Am erican Arbitration Association (“AAA”). The

arbitrator’s award favored Peak. Brook filed a motion to vacate

the arbitration award in the district court. The district court

held that the arbitrator selected by the AAA was without power to

decide the dispute because the AAA did not follow the selection

procedure outlined in Brook’s Employment Agreement. The district1 The dispute resolution clause of the Employment Agreement provided

as follows:

4. Resolution of Disputes; Arbitration . Should a dispute

arise concerning this Agreement, its interpretation or termination,

either party may request a conference with the other party to this

Agreement and the parties shall meet to attempt to resolve the

dispute. Failing such resolution within thirty (30) days of either

party’s request for conference, the Company and the Employee shall

endeavor to select an arbitrator who shall hear the dispute. In the

event the parties are unable to agree on an arbitrator, the Employee

and the Company shall request the American Arbitration Association

to submit a list of nine (9) names of persons who could serve as an

arbitrator. The Company and Employee shall alternately remove names

from this list (b eginning with the party which wins a flip of a

coin) until one person remain s and this person shall serve as the

impartial arbitrator. The decision of the arbitrator is final and

binding on both parties. Each party shall bear equally all the

costs of the arbitrator.

2 court vacated the arbitration award pursuan t to 9 U.S.C. §

10(a)(4). Brook has appealed. Although we agree that AAA

seriously erred by deviating from the parties’ contractual

selection process, we conclude that Brook never timely objected to

the selection process on the ground he now espouses, hence, the

objection was waived. The award must be reinstated.

BACKGROUND

On January 1, 199 8, Richard Brook entered into an

employment agreement (the “Employment Agreement”) with Peak

International to become its president and chief operating officer.

Less than a year later, he was term inated. A dispute arose

regarding Brook’s severance benefits. On May 7, 1999, pursuant to

the terms of the Agreement, Brook filed a demand for arbitration

with the AAA alleging breach of his Employment Agreement. 13 This appeal concerns the arbitrator selection process.

The process began on May 18, 1999, when the AAA submitted a list of

nine prospective arbitrators and instructed the parties to follow

the procedure outlined in the Emp loyment Agreement to select the

arbitrator. On May 28, Brook struck one individual from the list.

Brook’s counsel also stated:

[Peak’s] counsel [] has agreed to Austin as the site of

the arbitration he aring and hence it strikes us that

perhaps an arbitrator from Austin would be more efficient

and economical for all concerned. To that end, [Peak’s

counsel] and I will try to come up with a mutually

acceptable Austin-based arbitrator from your AAA-Austin

list, if this is acceptable to the association.

Peak, citing its understanding that a new list of arbitrators from

Austin was to be provided by the AAA, did not sub mit a strike to

the AAA’s first list of arbitrators.

On June 9, the AAA informed the parties that “there were

no mutual choices [from the previously provided list of

arbitrators] who were able to accept the appointment.” The AAA

then advised: “[the AAA is] enclosing a second list of names from

our panel. We ask that this list be considered supplemental to the

list pr eviously provided and every consideration be given to

r eleasing names struck from that list.” The AAA’s June 9 letter

did not refer to Brook’s May 28 letter or Brook’s request for

selection of an arbitrator from the AAA’s Austin list, and it did

not direct the parties to employ the selection process outlined in

the Employment Agreement. Rather, the letter instructed the2 Although Brook now challenges the selection of Judge Miller as

arbitrator, he did not strike Judge Miller from the AAA’s second list.

4 parties to strike the names of unacceptable arbitrators and

indicate their order of preference by number. The letter also

provided that “[i]f this list is not received by the [A AA] on or

before Monday, June 21, 1999, or if there are no mutual choices,

the appoint ment will be made per Section 12 of the [AAA] Rules.”

If the parties failed to submit their strikes by June 21, the

letter warned, “all names submitted may be deemed acceptable.”

Complying with the June 9 letter, Brook submitted his

strike list and ranked the remaining arbitrators in order of

preference. 2 Peak did not submit a list of strikes before June 21.

On July 14, Peak’s counsel informed the AAA that he was

withdrawing and that Peak intended to substitute John McCamish as

counsel. Peak also advised the AAA of ongoing discussions with

Brook ’s counsel regarding the possible mutual selection of Judge

Joe Hart as arbitrator. On July 16, Mr. McCamish requested a

seven-day extension of time from Brook’s counsel to review the file

before advising whether his client would agree to the selection of

Judge Joe Hart. Brook’s counsel rejected the request for extension

of time.

On July 26, the AAA notified the parties that Professor

David Sokolow had been selected as arbitrat or. Peak immediately

prot ested the appointment of Professor Sokolow, citing concerns5

regarding Professor Sokolow’s potential conflicts with counsel and

his inexperience with employment-related disputes. Peak also

submit ted its strikes to the list of arbitrators. On August 5,

Peak sent a second letter of objection to the AAA , arguing that

“the entire appointment process violates the parties’ written

agreement.” Peak requested that the AAA comply with the terms of

the Employment Agreement by providing a list of nine, rather than

seven, potential arbitrators and by allowing the parties to

alternately remove names from the list until only one remained.

Brook filed no objection to the selection of Professor Sokolow or

the process used by the AAA and did not respond to Peak’s

objections.

On August 11, the AAA withdrew the appointment of

Professor Sokolow and appointed Judge Chuck Miller as arbitrator.

The AAA’s letter appointing Judge Miller refers neither to Peak’s

objections to the selection process nor to its de mand for

com pliance with the selection process outlined in the Employment

Agreement.

On August 13, Brook registered “his protest to the

process used by the [AAA] in the selection of the arbitrator.” In

a letter to the AAA and opposing counsel, Brook objected to the

appointment of Judge Miller “because the appointment [was] not made

in compliance with AAA rules and procedures.” Brook also requested

that the AAA reinstate “the properly appointed individual,6

Professor David Sokolow,” as arbitrator. However, Brook’s August

13 letter does not mention the Employment Agreement or the AAA’s

failure to follow the contractual selection process.

On August 26, Peak notified the AAA that it was “willing

to forego its c omplaints of procedural irregularities that have

occurred and proceed forward if Brook agrees to Mr. Miller as

arbitrator.” Peak also stated that “if Brook is unwilling to agree

to [the appointment of Judge Miller]

. . . then Peak would continue

to assert its complaint, outlined in [its] letter of August 4,

1999, that the entire appointment process to date has violated the

terms of Brook’s employment agreement

. . . .” The record contains

no response from Brook, and no furt her objection by Brook to the

appointment o f Judge Miller. The parties proceeded to arbitrate

their dispute before Judge Miller.

After months of discovery and related disputes, the

parties participated in an eight-day arbitratio n hearing before

Judge Miller. In his opening remarks to the parties on the first

day of arbitration, Judge Miller stated: “I have executed the oath

of arbitrator

. . . [s]o unless there are any othe r objections,

we’ll go ahead and convene the arbitration.” Brook raised no

objections, and the arbitration convene d

. After considerable3 The record before us indicates that the parties spent over $650,000

in fees and costs related to the arbitration of their dispute before Judge

Miller.

7 expense to the partie s and a lengthy arbitration process, 3 Judge

Miller entered an arbitration award favorable to Peak.

Brook filed a federal lawsuit in which he moved to vacate

the arbitration award, arguing that (1) the arbitration award was

arbitrary and capricious and/or based on a manifest disregard for

the law, (2) the arbitrator exceeded hi s authority by addressing

issues not raised by the parties, and (3) “the arbitrators were

guilty of misconduct

. . . or other misbehavior” that warranted

vacatur pursuant to 9 U.S.C. § 10(a)(3) because the AAA violated

its own arbitrator selection rules. Brook’s motion to vacate does

not refer to the Employment Agreement, does not raise the AAA’s

failure to follow the selection process outlined in the Employment

Agreement as grounds for vacatur, and does not cite 9 U.S.C. §

10(a)(4).

On Januar y 17, 2001, a magistrate judge heard oral

argument regarding Brook’s motion to vacate and raised, sua sponte

,

the AAA’s failure to follow the selection process outlined in the

Employment Agreement as a possible grou nd for vacating the

arbitration award. Several days later, Brook filed his “Supplement

to Motion to Vacate Arbitration Awar d,” asserting for the first

time that the AAA’s failure to select the arbitrator in the manner8

provided by the Employment Agreement rendered Judge Miller

powerless to arbitrate the dispute. Based on this argument, the

magistrate judge recommended that the district court va cate the

arbitration award pursuant to 9 U.S.C. § 10(a)(4). The district

court agreed with the magistrate judge’s recommendation, vaca ted

the award, and precipitated Peak’s appeal.

DISCUSSION

A.

In light of the stron g federal policy favoring

arbitration, “[j]udicial review of an arbitration award is

extraordinarily narrow.” G ulf Coast Indus. Worker’s Union v. Exxon

Co.

, 70 F.3d 847, 850 (5th Cir. 1995). This court reviews an order

vacating an arbitration award de novo

, a standard that is “intended

to reinforce the strong deference due an a rbitrative tribunal.”

McIlroy v. Painewebber, Inc. , 989 F.2d 817, 820 (5th Cir. 1993).

Section 10 of the Federal Arbitration Act, 9 U.S.C. §§ 1-

16 (“FAA”), provides “the only grounds upon which a reviewing court

may vacate an arbitrative award.” M cIlroy

, 989 F.2d at 820

(citation omitted). Section 10 allows vacatur, i nter alia

,

“[w]here the arbitrators exceeded their powers . . . .” 9 U.S.C.

§ 10 (a)(4). A reviewing court examining whether arbitrators

exceeded th eir powers must resolve all doubts in favor of9

arbitration. E xecuto ne Information Sys., Inc. v. Davis , 26 F.3d

1314, 1320-21 (5th Cir. 1994).

B.

Arbitration is a matter of contract. A T&T Tech., Inc. v.

Communication Workers of America

, 475 U.S. 643, 648, 106 S.Ct. 1415

(1986). Thus, “[t]he power and authority of arbitrators in an

arbitration proceeding is dependent on the provisions under which

t he arbitrators were appointed.” S zuts v. Dean Witter Reynolds,

Inc.

, 931 F .2d 830, 831 (11th Cir. 1991). Parties to an

arbitration agreement may determine by contract the method for

appointment of arbitrators. The FAA expressly provides that where

a method for appointment is set out in the arbitration agreement,

the agreed upon method of appointment “shall be followed.” 9

U.S.C. § 5.

Several courts, relying on § 5, have determined that

“[a]rbitration awards made by arbitrators not appointed under the

method provided in the parties’ contract must be vacated.” C argill

Rice, Inc. v. Empresa Nicaraguense Dealimentos Basicos , 25 F.3d

223, 226 (4th Cir. 1994); see also

, Avis Rent-A-Car Sys., Inc. v.

Garage Emp. Union, Local 272

, 791 F.2d 22, 25 (2d Cir. 1986)

(“Courts generally enforce [selection clauses] strictly, vacating

a wards entered by arbitrators whose qualifications or metho d of

appointment fail to conform to arbitration clauses.”); R.J. O’Brien

& Assoc., Inc. v. Pipkin , 64 F.3d 257, 263 (7th Cir. 1995) (“[I]n10

order to enforce an arbitration award, the arbitrator must be

chosen in conformance with the procedure specified in the parties’

agreement to arbitrate.”). However, “a ‘trivial departure’ from

the parties’ agreement [] may not bar enforcement of an award.”

R.J. O’Brien

, 64 F.3d at 263. Brook relies on these cases and

argues that the arbitration award must be vacated because Judge

Miller was not appointed according to the process outlined in the

Employment Agreement.

To state that the AAA failed to follow the simple

selection procedure outlined in Brook’s E mployment Agreement is

insufficient: the AAA flouted the prescribed procedures and ignored

complaints from both sides about the irregular selection process.

Rather than submitting a list of nine names and instructing the

parties alternately to strike names from the list until only one

remained, the AAA submitted two lists containing the names of

fifteen potential arbitrators. The AAA instructed the parties to

strike all unacceptable arbitrators and rank the remaining

candidates in order of preference. The AAA’s departure from the

selection procedure outlined in the Employment Agreem ent was

utterly unwar ranted. Because arbitration is a creature of

contract, the AAA’s depar ture from the contractual selection

process fundamentally contradicts its role in volunta ry dispute

resolution. The AAA must follow the selection procedures outlined

in the arbitration agreement. 9 U.S.C. § 5.4 Brook argues in the alternative that the AAA’s failure to follow its

own selection rules entitles him to vacatur of the arbitration award. This makes

no sense, as there was no agreement by Peak to modify the Employment Agreement

by adopting the AAA selection method.

11

Nevertheless, despite its asserted efficiencies over

judicial proceedings, arbitration remains an adversarial event, and

parties must insist upon the enforcement of their contractual

rights before the arbitrators as they do in court. This is

especially true if any case is to be made, under the exceedingly

narrow statutory standards, for a later judicial review of the

arbitration.

In the ca ses cited above, where federal courts vacated

arbitration awards because of irregularities in the process for

selecting arbitrators, the complaining party preserved its

objection during the arbitration proceeding. Here, however, Brook

never objected to the AAA’s failure to follow the selection process

in the Employment Agreeme nt (until prompted by the federal

magistrate judge long after the arbitration had run its course).

It is true that Brook filed a written objection t o the AAA’s

failure to follow its own selection rules, 4 but he also condoned

the AAA’s ignoring the Employment Agreement when he urged the AAA

to reinstate the “properly appointed” arbitrator, Professor

Sokolow, although Sokolow had not been appointed according to the

terms of the Employment Agreem ent. The failure to file a clear

written objection to a defect in the selection process constitutes5 Peak objected several times to AAA’s violation of the selection terms

of the Employment Agreement, but it ultimately acquiesced i n Judge Miller’s

appointment. Peak’s objection cannot support Brook’s vacatur motion.

12 waiver. S ee

, e.g.

, Health Services Management Corp. v. Hughes

,

975 F.2d 1253, 1263-64 (7th Cir. 1992) (citations omitted). 5

Brook compounded his inaction by failing to object to the

error in the selection process before Judge Miller during the

arbitration proceedings. In particular, at the outset of the

arbitration hea ring, Judge Miller invited the parties to state

their objections to the arbitration on the record, and Brook did

nothing. This court has previously held that objections to the

composition of arbitration panels must be raised “at the time of

the hearing.” Bernstein Seawell & Kove v. Bosarge , 813 F.2d 726,

732 (5th Cir. 1987). Brook’s failure to object at the hearing

constitutes waiver. Id.

Alternatively, before proceeding to arbitration, Brook

could have sought an order fr om the district court compelling

arbitration b e fore a properly selected arbitrator pursuant to

sections 4 and 5 of the FAA. But Brook did not timely go to court.

In sum, Brook did not state clearly his objection to the AAA’s

failure to follow the Employment Agreement when an arbitrator was

selected; Brook made no effort to preserve his objection to

arbitrating while the dispute was pending before Judge Miller; and

Brook fina lly raised the crucial objection after the magistrate13

judge conceived it. “It is well settled that a party may not sit

idle through an arbitration procedure and then collaterally attack

the procedure on grounds not raised before the arbitrators when the

result turns out to be adverse.” M arino v. Writers Guild of

America, East, Inc. , 992 F.2d 1480, 1484 (9th Cir. 1993).

We do not hold that Brook had t o exhaust all of the

described avenues of objecting to the arbitrator selection process,

but as was done in the cases on which he relies, he had to make

plain and timely his exact objection so that a responsible party

–

whether the AAA or the arbitrator or a federal court – could have

enforced the Employment Agreement.

CONCLUSION

For the reasons stated above, we REVERSE the judgment of

the district court and REMAND entry of a judgment enforcing the

arbitration award.

REVERSED and REMANDED

.