IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

WILDFIRE PRODUCTIONS, 

L.P.,

Plaintiff,

v.

TEAM LEMIEUX LLC and 

LEMIEUX GROUP, L.P.,

Defendants.

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C.A. No. 2021-1072-PAF

MEMORANDUM OPINION

Date Submitted: March 23, 2022

Date Decided: June 29, 2022

Jon E. Abramczyk, Sabrina M. Hendershot, MORRIS, NICHOLS, ARSHT & 

TUNNELL LLP, Wilmington, Delaware; Daniel H. Shapira, Robert M. Barnes, 

Daniel J. Stuart, MARCUS & SHAPIRA LLP, Pittsburgh, Pennsylvania; Attorneys 

for Plaintiff Wildfire Productions, L.P.

Kurt M. Heyman, Jamie L. Brown, HEYMAN ENERIO GATTUSO & HIRZEL 

LLP, Wilmington, Delaware; Patricia L. Glaser, Craig H. Marcus, Nathaniel Wright, 

GLASER WEIL HOWARD AVCHEN & SHAPIRO LLP, Los Angeles, California;

Attorneys for Defendants Team Lemieux LLC and Lemieux Group, L.P.

Ryan M. Lindsay, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, 

Wilmington, Delaware; Attorneys for Intervenor National Hockey League.

FIORAVANTI, Vice Chancellor
In December 2021, the controlling owners of the Pittsburgh Penguins (the 

“Team”), a member of the National Hockey League (the “NHL”), agreed to transfer 

a controlling ownership interest in the Team to another investor group. A minority 

owner of the Team asserted a variety of claims in this court challenging the 

transaction. The defendants—the transferors of the controlling interest—and the 

NHL—which has intervened—contend that the plaintiff’s claims must be arbitrated 

before the NHL Commissioner (the “Commissioner”). The court agrees with the 

defendants and the NHL. Accordingly, the plaintiff’s claims are dismissed in favor 

of arbitration.

I. BACKGROUND

The facts recited in this Memorandum Opinion are drawn from the Verified 

Complaint (the “Complaint”),

1 documents integral thereto, and materials submitted 

by the parties.

A. The NHL and the Governing Agreements

The NHL is a joint venture consisting of thirty-two member clubs (the 

“Member Clubs”), including the Team.

2 All of the Member Clubs are signatories to 

the NHL Constitution.3 The NHL Constitution provides that each Member Club 

1 See Dkt. 1, Verified Complaint (“Compl.”).

2 Dkt. 38, Unsworn Declaration of Kevin Acklin (“Acklin Decl.”) ¶ 2.

3 Acklin Decl. ¶ 3; id., Ex. A (“NHL Constitution”) at 26.
2

“accepts and agrees to abide by the foregoing Constitution and each and every 

alteration, amendment and repeal thereof duly made.”4 The Commissioner serves 

as the Chief Executive Officer of the NHL and is “charged with protecting the 

integrity of the game of professional hockey and preserving public confidence in the 

League.”5 The NHL Constitution grants the Commissioner all powers that may be 

“necessary or appropriate” to fulfill his or her responsibilities.6 The Commissioner 

has “the authority to interpret . . . the provisions of the Constitution . . . and League 

rules and resolutions, and their application and enforcement.”7 Most important to 

the pending motions, Article 6.3(b)(1) provides that the Commissioner “shall have 

full and exclusive jurisdiction and authority to arbitrate and resolve . . . any dispute 

that involves . . . two or more holders of an ownership interest in a Member Club of 

the League.”8

The NHL requires all direct and indirect owners of Member Clubs to execute 

a Consent Agreement with the NHL whereby they “agree to be bound by and adhere 

to all of the terms and provisions of . . . the NHL Constitution,” including mandatory 

4 NHL Constitution, art. XII.

5 Id., art. 6.1.

6 Id., art. 6.3(a).

7 Id., art. 6.3(d).

8 Id., art. 6.3(b)(1).
3

arbitration.9 Thus, all owners and partners of all Member Clubs hold their interests 

subject to the provisions of the NHL Constitution.

Defendant Lemieux Group, L.P. (“Lemieux LP”) is a Pennsylvania limited 

partnership that owned and operated the Pittsburgh Penguins at the time this action 

was filed.

10 Defendant Team Lemieux, LLC (“Lemieux GP,” and with Lemieux LP,

the “Defendants”) is the sole general partner of Lemieux LP.

11 Plaintiff Wildfire 

Productions, L.P. (“Plaintiff” or “Wildfire”) is a limited partner in Lemieux LP.

12 

When Wildfire acquired its membership interest in Lemieux LP in 1999, it 

executed two agreements contemporaneously. First, it executed a Consent 

Agreement with the NHL dated September 1, 1999 (the “1999 Consent 

Agreement”).13 The 1999 Consent Agreement memorialized, inter alia, the NHL’s 

consent to the transaction whereby Plaintiff acquired its interest in Lemieux LP.

14

Pursuant to the 1999 Consent Agreement, and in exchange for the NHL’s consent to 

Plaintiff’s acquisition of its interest in Lemieux LP, Plaintiff agreed “to be bound by 

and adhere to all of the terms and provisions of . . . the NHL Constitution.”15 The

9 Acklin Decl., ¶ 4; id., Ex. B (“1999 Consent Agreement”) §§ 3(a), 12(a).

10 Compl. ¶ 16.

11 Id. ¶¶ 14–15.

12 Id. ¶¶ 12–13.

13 Acklin Decl., ¶ 4; see 1999 Consent Agreement.

14 1999 Consent Agreement § 1.

15 Id. § 3(a).
4

1999 Consent Agreement also provides that “[a]ny dispute . . . relating to the subject 

matter hereof . . . shall be deemed to be a dispute which shall be resolved in 

accordance with Section 6.3 of the NHL Constitution,”16 i.e., arbitration before the 

Commissioner. Section 12(g) of the 1999 Consent Agreement states that

in the event of any conflict or ambiguity between any term or provision 

contained in this Agreement and any term or provision of any 

Transaction Document, the terms of this Agreement shall control and 

all such conflicts or ambiguities shall be resolved in a manner that will 

provide the NHL with the maximum protection that may be afforded to 

it.17 

Defendants and the NHL are also signatories to the 1999 Consent Agreement, which 

is governed by New York law.

18

Concurrent with their execution of the 1999 Consent Agreement, Wildfire and 

the Defendants also executed an Amended and Restated Limited Partnership 

Agreement (the “1999 Partnership Agreement”).19 Thereafter, during October 2007, 

the parties executed a Second Amended and Restated Limited Partnership 

Agreement (the “2007 Partnership Agreement,” and with the 1999 Partnership 

Agreement, the “Partnership Agreements”).20 The Partnership Agreements cross16 Id. § 12(a).

17 Id. § 12(g). 

18 Id. § 12(c) & p. 21.

19 Acklin Decl., ¶ 5; id., Ex. C.

20 Acklin Decl., ¶ 6; id., Ex. D (“2007 Partnership Agreement”).
5

reference the 1999 Consent Agreement.21 The NHL is not a signatory to either the 

1999 Partnership Agreement or the 2007 Partnership Agreement.

The Partnership Agreements are governed by Pennsylvania law,22 and 

designate Delaware as the venue for disputes between the parties to that agreement. 

They provide that: “each party hereby agrees that any dispute arising out of this 

Agreement or the consummation of the transactions contemplated hereby shall be 

heard in the state or Federal courts situated in Delaware . . . .”23 

At the time it executed the 2007 Partnership Agreement, Wildfire 

contemporaneously executed another Consent Agreement (the “2007 Consent 

Agreement”).

24 Both the 2007 Partnership Agreement and the 2007 Consent 

Agreement expressly affirm the continued validity of the 1999 Consent Agreement.

For example, Section 2 of the 2007 Consent Agreement states that “[e]xcept as 

expressly set forth herein” the provisions of the 1999 Consent Agreement “shall

remain in full force and effect.”25 Section 17.2 of the 2007 Partnership Agreement 

provides that a “Partner shall be individually liable to the Partnership for . . . any 

21 Acklin Decl., Exs. C & D (“Partnership Agreements”) §§ 17.1–17.2.

22 Id. § 16.3.

23 Id. § 16.12.

24 See Acklin Decl., Ex. E (“2007 Consent Agreement”).

25 2007 Consent Agreement § 2; see also id. § 7(d) (stating that the prior Consent 

Agreements “shall remain in full force and effect” except as expressly modified in the 2007 

Consent Agreement).
6

breach of the NHL Consent by the Partner” and defines “NHL Consent” as the 

“Consent Agreement by and among the National Hockey League, Lemieux Group 

LP, Team Lemieux LLC and each of the Limited Partners, dated as of September 1, 

1999.”26 Wildfire, the Defendants, and the NHL are signatories to the 2007 Consent 

Agreement.

B. The Challenged Transaction

The Complaint challenges a two-step transaction that would result in Fenway 

Sports Group (“FSG”) obtaining control and a majority ownership interest in the

Team. In the first step, on December 31, 2021, two wholly owned subsidiaries of 

FSG purchased a controlling interest in Lemieux GP from entities owned and

controlled by Ron Burkle and Mario Lemieux. FSG, through its acquisition of a 

controlling interest in Lemieux GP, consequently obtained control of Lemieux LP

and the Team.

In the second step of the transaction, FSG will acquire certain limited partner 

interests in Lemieux Group, which, together with FSG’s ownership interest in 

26 2007 Partnership Agreement § 17.2, Glossary. The Partnership Agreements refer to the 

“NHL Consent” and “NHL Consent Agreement” interchangeably. Compare Partnership 

Agreements § 17.1(d) (“NHL Consent Agreement”—the only usage of that defined term 

in the agreement), with Partnership Agreements § 17.2 (“NHL Consent”—one of seven 

times that term is used). Only the 2007 Partnership Agreement contains a glossary, which 

only defines the “NHL Consent Agreement.” 2007 Partnership Agreement, Glossary. All 

indications from the parties point to reading these two terms in the Partnership Agreements

interchangeably as well, and the court will do so here.
7

Lemieux LP through Lemieux GP, will give FSG majority ownership of Lemieux 

LP, and thus, the Team. Following the consummation of the second step of the 

transaction, although FSG will have obtained control and a majority ownership 

interest in Lemieux LP, each of Wildfire, Lemieux GP, and Lemieux LP will 

continue to hold an ownership interest in the Team.

Wildfire alleges that FSG’s acquisition of a controlling interest in Lemieux 

GP (and thus, FSG’s control of Lemieux LP and the Team), violates the 2007 

Partnership Agreement, which governs the partnership among members of Lemieux 

LP. Wildfire asserts that FSG’s purportedly invalid acquisition of a controlling 

interest in Lemieux GP wrongly leaves Wildfire, as a continuing limited partner in

Lemieux LP, subject to the “whims” of FSG.27 Wildfire therefore seeks a variety of 

relief, including a declaration that FSG’s acquisition of a controlling interest in

Lemieux GP is null and void.

C. Procedural History

Plaintiff filed its Complaint challenging the acquisition on December 9, 2021. 

Count I seeks a declaratory judgment that the sale is null and void under the terms 

of the 2007 Partnership Agreement. Count II alleges that Lemieux GP breached its 

fiduciary duties to Plaintiff. Count III asserts a claim for breach of the covenant of 

27 Compl. ¶ 78.
8

good faith and fair dealing under Pennsylvania law. Count IV asserts a claim for 

breach of the 2007 Partnership Agreement, which is governed by Pennsylvania law.

Defendants have moved to dismiss the Complaint under Court of Chancery 

Rule 12(b)(1) for lack of subject matter jurisdiction. Alternatively, Defendants have 

moved to dismiss Counts II and III under Rule 12(b)(6) for failure to state a claim 

upon which relief can be granted.

The NHL, which intervened on March 21, 2022, has moved to compel 

arbitration of this action. The NHL has made clear that it takes no position on the 

merits of the dispute between Wildfire and the Defendants. Instead, the NHL has 

intervened solely to enforce its right to compel arbitration of this dispute before the 

Commissioner.28

II. ANALYSIS

A. Standard of Review

“A motion to dismiss based on an arbitration clause goes to the court’s subject 

matter jurisdiction over a dispute and is properly reviewed under Court of Chancery

Rule 12(b)(1).” Legend Nat. Gas II Hldgs., LP v. Hargis, 2012 WL 4481303, at *4

(Del. Ch. Sept. 28, 2012) (citing Ishimaru v. Fung, 2005 WL 2899680, at *13 (Del.

Ch. Oct. 26, 2005), and Acierno v. New Castle Cty., 2006 WL 1668370, at *1 n.8

28 Neither the parties nor the intervenor sought expedited proceedings.
9

(Del. Ch. June 8, 2006)). Unlike standards governing a motion to dismiss under

Court of Chancery Rule 12(b)(6), “the guidelines for the Court’s review of [a] Rule

12(b)(1) motion are far more demanding of the non-movant. The burden is on the 

Plaintiff[] to prove that jurisdiction exists.” Appriva S’holder Litig. Co., LLC v. Ev3,

Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) (internal quotations omitted). “In 

deciding a 12(b)(1) motion to dismiss for want of subject matter jurisdiction, the 

court may consider documents outside the complaint.” Legend Nat. Gas, 2012 WL

4481303, at *4 n.25 (citing Acierno, 2006 WL 1668370, at *1 n.8). 

The arbitration agreements at issue do not provide for applicability of the 

Delaware Uniform Arbitration Act (“DUAA”). Therefore, the Federal Arbitration 

Act (“FAA”)29 governs the motion to compel arbitration.

30 The FAA, in turn, 

implicates state law contract principles. “When deciding whether the parties agreed 

to arbitrate . . . [the issue of] arbitrability” under the FAA, “courts generally . . .

should apply ordinary state-law principles that govern the formation of contracts.”

First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Ario v. Underwriting

Members of Syndicate 53 at Lloyds for 1998 Year of Acct., 618 F.3d 277, 288 (3d

Cir. 2010), as amended (Dec. 7, 2010). 

29 9 U.S.C. § 1 et seq.

30 See 10 Del. C. § 5702(c); Gulf LNG Energy, LLC v. Eni USA Gas Mktg. LLC, 242 A.3d 

575, 579 n.11 (Del. 2020) (“Because the parties did not designate the [DUAA], the FAA 

governs their arbitration.”).
10

The FAA reflects a “liberal federal policy favoring arbitration.” AT&T 

Mobility LLC v. Concepcion, 563 U.S. 333, 346 (2011) (internal quotations omitted). 

“[T]he public policy of [Delaware likewise] favors the resolution of disputes through 

arbitration.” Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 911 (Del. 

1989); see also MacPherson v. Magee Mem’l Hosp. for Convalescence, 128 A.3d 

1209, 1219 (Pa. Super. Ct. 2015) (same for Pennsylvania); Smith Barney Shearson 

Inc. v. Sacharow, 689 N.E.2d 884 (N.Y. 1997) (same for New York). “A strong 

presumption exists in favor of arbitration, and, accordingly, contractual arbitration 

clauses are generally interpreted broadly by the courts. However, this presumption 

will not trump basic principles of contract interpretation.” NAMA Hldgs., LLC v.

Related World Mkt. Ctr., LLC, 922 A.2d 417, 430 (Del. Ch. 2007).

Accordingly, the FAA requires that a court “shall direct the parties to proceed 

to arbitration on issues as to which an arbitration agreement has been signed.” Dean 

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in original).

When a contract contains an arbitration clause, there is a “presumption of 

arbitrability” unless “it may be said with positive assurance that the arbitration clause 

is not susceptible of an interpretation that covers the asserted dispute.” AT&T 

Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (internal 

quotations omitted). That presumption is particularly applicable when the 

arbitration clause is broad—when, for example, it covers any dispute “relating to” 
11

or “arising out of” certain subject matter. See Orix LF, LP v. Inscap Asset Mgmt., 

LLC, 2010 WL 1463404, at *7 (Del. Ch. Apr. 13, 2010) (noting the “broad” reach 

of the phrase “relating to” in an arbitration clause); ASDC Hldgs., LLC v. Richard J. 

Malouf 2008 All Smiles Grantor Retained Annuity Tr., 2011 WL 4552508, at *8 n.38 

(Del. Ch. Sept. 14, 2011) (noting broad import of “‘involving or relating to’ 

language” in an arbitration clause (citation omitted)). Any “[d]oubts” as to 

arbitrability “should be resolved in favor of coverage.” AT&T Techs., 475 U.S. at 

650; see Centene Corp. v. Accellion, Inc., 2022 WL 898206, at *7, 13 (Del. Ch. Mar. 

28, 2022) (discussing the breadth of an arbitration provision governing “any dispute” 

regarding the agreement and concluding that it was not limited to colorable or bona 

fide claims and that it extended to defenses to a claim).

B. The NHL’s Argument

The Defendants and the NHL make similar, but not identical, arguments in 

support of their motions to compel arbitration. The court’s analysis focuses 

primarily on the NHL’s arguments, because they are dispositive. The NHL relies on 

the arbitration provision in the NHL Constitution and the arbitration provision in the 

1999 Consent Agreement.31

31 The parties and the NHL have proceeded as though the court, and not an arbitrator, has 

the obligation to decide whether the claims must be arbitrated.
12

1. The NHL Constitution

Article 6.3(b) of the NHL Constitution provides the Commissioner with

full and exclusive jurisdiction and authority to arbitrate and resolve: (1) 

any dispute that involves . . . two or more holders of an ownership 

interest in a Member Club of the League; . . . and (5) any dispute 

involving a Member Club . . . that in the opinion of the Commissioner

is detrimental to the best interests of the League or professional hockey 

or involves or affects League policy.32

The NHL Commissioner has invoked both provisions to enforce the NHL’s right to 

arbitration.33

There is no disagreement that Wildfire’s claims in this action present a dispute 

that involves two or more holders of an ownership interest in the Team. As Wildfire 

alleges, Lemieux LP is a limited partnership that “owns the Pittsburgh Penguins,” 

and Lemieux GP is the sole general partner of Lemieux LP in which it possesses 

about a “31.34% interest.”34 Wildfire, in turn, is a limited partner in—and “owns 

approximately 7.5%” of—Lemieux LP.

35 The Complaint details Wildfire’s dispute 

with Lemieux GP and Lemieux LP over the transfer of ownership interests in the 

Team. Wildfire also does not contest that this dispute is one involving the Team that 

32 NHL Constitution, art. 6.3(b) (emphasis added).

33 Dkt. 57 (“Hrg.”) at 34:5–12.

34 Compl. ¶¶ 1, 15.

35 Id. ¶¶ 12–13, 27.
13

the NHL Commissioner has opined to be detrimental to the best interests of the NHL 

or involves or affects NHL policy.

The NHL points to the decision in Commodore Trust v. Predators Holdings, 

LLC, 16-674-BC (Tenn. Ch. Ct. July 29, 2016), as further support to compel 

arbitration under Article 6.3(b) of the NHL Constitution. In Commodore Trust, the 

Tennessee Chancery Court held that Article 6.3(b)(1) and 6.3(b)(5) of the NHL 

Constitution compelled holders of an indirect ownership interest in the Nashville 

Predators to submit their claims to the Commissioner’s full and exclusive arbitral 

jurisdiction. Based on their owners’ consent agreements, the court first held that the 

parties “agree[d] to be bound by the NHL Constitution and its arbitration 

provisions.” Id. at 5. Next, the court held that Article 6.3(b)(1) of the NHL 

Constitution required the plaintiffs to arbitrate their claims before the Commissioner 

because the plaintiffs’ indirect holdings in the Predators constituted an “ownership 

interest” as that term is defined in Article 3.5 of the NHL Constitution. Id. at 10.

Because the plaintiffs’ claims involved a member club (the Predators) and could be 

detrimental to the NHL, the court likewise ordered arbitration before the 

Commissioner under Article 6.3(b)(5) of the NHL Constitution. Id. at 12–13. As 

the court explained, the plaintiffs’ claims and request for relief could be detrimental 

to the best interests of the NHL because the plaintiffs alleged that holders of 

ownership interests in the Predators “breached duties and contracts and have 
14

committed torts” against others in the ownership chain, and such issues “link back 

to the Commissioner’s duty in Article 6.1 [of the NHL Constitution] to preserve 

public confidence in the League.” Id. at 12.

As in Commodore Trust, Wildfire signed the 1999 Consent Agreement as a 

condition to acquiring an ownership interest in the Team, and in doing so, expressly 

agreed “to be bound by and adhere to” the NHL Constitution.36 Wildfire then 

reaffirmed that agreement again in October 2007 at the same time it entered into the 

2007 Partnership Agreement.

37 In particular, Wildfire confirmed and agreed that 

except as “expressly set forth” therein, nothing in the subsequent owners’ consent 

agreements shall amend, modify, waive or otherwise affect any term or provision of 

the 1999 Consent Agreement, each of which “shall remain in full force and effect.” 

As in Commodore Trust, NHL Constitution Article 6.3(b)(1) and 6.3(b)(5) each 

independently require Wildfire to arbitrate its claims before the Commissioner.

First, Article 6.3(b)(1) requires arbitration before the Commissioner because 

Wildfire, Lemieux LP, and Lemieux GP all hold an “ownership interest” in the 

Penguins, as that term is used in the NHL Constitution—i.e., “any . . . partnership 

36 1999 Consent Agreement §§ 1(a), 3(a)(A).

37 Prior to executing the 2007 Consent Agreement, Wildfire had executed three other 

agreements with the NHL between October 2000 and August 2007 that confirmed the 

vitality of the 1999 Consent. See Dkt. 39, Unsworn Declaration of David Zimmerman 

(“Zimmerman Decl.”), Exs. D–F. 
15

(general or limited) or other proprietary holding in any . . . partnership, or other 

organization which holds, directly or indirectly, the franchise of Member Club.”38

As in Commodore Trust, Article 6.3(b)(5) of the NHL Constitution requires Wildfire 

to arbitrate its claims before the Commissioner because the Commissioner 

reasonably considers that matters in dispute could be “detrimental to the best 

interests” of the NHL.39

2. The 1999 Consent Agreement 

The NHL also invokes the Section 12(a) of the 1999 Consent Agreement as 

an independent basis to compel arbitration. Section 12(a) provides:

Any dispute between or among the Acquiring Parties [including 

Wildfire and the Defendants], or any of them, relating to the subject 

matter hereof . . . shall be deemed to be a dispute which shall be 

resolved in accordance with Section 6.3 of the NHL Constitution and 

the Commissioner shall have full and exclusive jurisdiction and 

authority to arbitrate and resolve such dispute.40

Wildfire asserts that this clause does not apply to its claims against the 

Defendants because the claims asserted in this action do not relate to the “subject 

matter” of the 1999 Consent Agreement.

41 The NHL argues that Wildfire’s 

construction of Section 12(a) is contrary to the plain language of the agreement. The 

38 NHL Constitution, art. 3.5.

39 Id., art. 6.3(b)(5).

40 1999 Consent Agreement § 12(a) (emphasis added).

41 Dkt. 43 (“Pl.’s Ans. Br.”) at 39–41.
16

NHL again relies on Commodore Trust, which analyzed a nearly identical provision. 

The provision at issue in Commodore Trust required owners of the Predators to 

arbitrate before the Commissioner “any dispute . . . relating to the subject matter” of 

their owners’ consent agreement. Commodore Tr., 16-674-BC, at 3. The court 

reasoned that because the owners’ consent agreement contained numerous terms 

relating to future, “ongoing events,” the “subject matter” of the owners’ consent 

agreement—and thus, its provision requiring arbitration before the Commissioner—

covered the “ongoing operations of the Club.” Id. at 4–5. Because the plaintiffs’ 

claims concerned the “ongoing operations of the [Predators],” the court compelled 

arbitration before the Commissioner. Id. at 5–6.

The NHL argues that, as in Commodore Trust, Section 12(a) of the 1999 

Consent Agreement requires Wildfire to arbitrate its claims before the 

Commissioner because the 1999 Consent Agreement also contains terms that apply 

to ongoing events beyond the ownership transaction consummated in 1999. Thus, 

the “subject matter” of the 1999 Consent Agreement—and in turn, its provision 

requiring arbitration before the Commissioner—covers claims relating to the 

ongoing operations of the Team, as do Wildfire’s claims here. For example, 

Wildfire’s claims relate to the ongoing operations of the Team because they concern 

whether FSG validly obtained a controlling interest in Lemieux GP, through which 
17

it obtained control of Lemieux LP and the Team.

42 Indeed, Wildfire alleges that its 

claims “arise[] out of the attempted sale of a controlling stake in [Lemieux LP],” and 

concern issues of “voting control,” including whether Wildfire will have “any 

meaningful vote on Partnership matters” going forward.

43 Those “Partnership 

matters” reasonably include the operation of the Team. Any uncertainty as to who 

operates and controls the Team—regardless of whether Wildfire or the Defendants

are ultimately correct on the merits of their dispute—necessarily affects the Team’s

continued relationship with the NHL, other NHL member clubs, NHL licensees, 

sponsors, players, and fans alike. Wildfire’s cramped reading of the 1999 Consent 

Agreement is unpersuasive and is contrary to the sound reasoning in Commodore 

Trust. Accordingly, because Wildfire’s claims concern the “subject matter” of the 

1999 Consent Agreement, they must be submitted to the Commissioner’s full and 

exclusive arbitral jurisdiction pursuant to Section 12(a) of the 1999 Consent 

Agreement.

C. Wildfire’s Reliance on the 2007 Partnership Agreement 

Wildfire insists that the 2007 Partnership Agreement controls this case, not 

the NHL Constitution or the 1999 Consent Agreement. Wildfire essentially 

advances three arguments as to why the motions must be denied and that the 2007 

42 See, e.g., Compl. ¶¶ 1–10.

43 Id. ¶¶ 1, 3 n.1, 45–46.
18

Partnership Agreement mandates that its claims be litigated in this court. First, 

Section 16.12 of the 2007 Partnership Agreement provides for Delaware to be the 

exclusive venue for disputes between the parties, and the agreement is fully 

integrated under Section 16.14. Second, Wildfire asserts that the NHL “approved” 

the Partnership Agreements. Third, although the NHL insisted that the 2007 

Partnership Agreement incorporate certain provisions from the 1999 Consent 

Agreement, an arbitration provision—which is notably absent from the 2007 

Partnership Agreement—was not one of them. 

1. The Exclusive Venue Provision

Wildfire contends that an exclusive forum provision in the 2007 Partnership 

Agreement allows Wildfire to proceed in this forum.44 That provision states, in 

pertinent part:

Dispute Resolution. As a material term of this Agreement, each party

hereby agrees that any dispute arising out of this Agreement or the 

consummation of the transactions contemplated hereby shall be heard 

in the state or Federal courts situated in Delaware and, in connection 

therewith, each party hereby consents to the jurisdiction and venue of 

such courts and waives its right to a jury trial. Each party agrees that 

any challenge to the provisions of this Section 16.12 shall constitute a 

material breach of this Agreement.45

44 Id. ¶ 11.

45 2007 Partnership Agreement § 16.12 (emphasis added).
19

Wildfire maintains that the 2007 Partnership Agreement trumps the arbitration 

provisions of the 1999 Consent Agreement and the NHL Constitution because the 

2007 Partnership Agreement is a fully integrated contract that contains no arbitration 

provision, and purportedly “supersedes” all other agreements.46 Wildfire’s 

argument suffers from at least two fatal flaws. First, the dispute resolution provision 

in the 2007 Partnership Agreement expressly binds “each party” to that agreement. 

The NHL is not a party to that agreement. Wildfire, the Defendants, and the NHL 

are, however, parties to the 1999 Consent Agreement and the 2007 Consent 

Agreement, both of which require arbitration of certain disputes, either directly or 

by the parties’ acceptance of the NHL Constitution.47 

The 2007 Partnership Agreement does not supersede the NHL Constitution or 

the 1999 Consent Agreement, because the NHL is not a party to the 2007 Partnership 

Agreement (or the 1999 Partnership Agreement). As a matter of black letter contract 

law, parties cannot modify a contract without the “assent” of “all . . . parties to the 

contract.” Brooklyn Union Gas Co. v. NewFields Cos., LLC, 2020 WL 7770993, at 

*5 (E.D.N.Y. Dec. 30, 2020); Trombetta v. Raymond James Fin. Servs., Inc., 907 

46 Pl.’s Ans. Br. 12–14.

47 1999 Consent Agreement §§ 3(a)(A) (agreeing to be bound and adhere to the NHL 

Constitution), 12(a) (agreeing to arbitrate disputes regarding the 1999 Consent Agreement 

in accordance with the NHL Constitution); 2007 Consent Agreement §§ 2 (reaffirming the 

validity of the 1999 Consent Agreement), 7(b) (agreeing to arbitrate disputes regarding the 

2007 Consent Agreement in accordance with the NHL Constitution).
20

A.2d 550, 558 (Pa. Super. Ct. 2006) (same under Pennsylvania law). Accordingly, 

“a later contract’s forum-selection clause” cannot “supersede[] a prior contract’s 

choice of forum” clause when “not all parties to the prior agreement signed the later 

one.” Brooklyn Union, 2020 WL 7770993, at *5 (citing PB Life & Annuity Co. v. 

Universal Life Ins. Co., 2020 WL 2476170, at *10 n.6 (S.D.N.Y. May 12, 2020)); 

see also Oldcastle Precast, Inc. v. VPMC, Ltd., 2013 WL 1952090, at *20–21 (E.D. 

Pa. May 13, 2013) (holding that under Pennsylvania law, obligations in a prior 

contract cannot be “extinguishe[d]” or “superseded by” a “subsequent contract” that 

is not “between the same parties”). Thus, the 2007 Partnership Agreement, to which 

the NHL was not a party, does not abrogate the NHL’s express contractual right 

granting the Commissioner full and exclusive jurisdiction to arbitrate this dispute 

under the NHL Constitution and the 1999 Consent Agreement, which Wildfire and 

the Defendants reaffirmed in their Consent Agreements with the NHL.

Wildfire, the Defendants, and the NHL all executed the 2007 Consent 

Agreement contemporaneously with the Defendants’ and Wildfire’s signing of the 

2007 Partnership Agreement. The 2007 Consent Agreement confirms that all parties 

agreed that “[e]xcept as expressly set forth herein, nothing in this Agreement shall 

amend, modify, waive or otherwise affect in any way any of the provisions of the 
21

[1999 Consent Agreement] . . . , each of which shall remain in full force and effect.”48

The terms of the 1999 Consent Agreement include Wildfire’s agreement to be bound 

by and adhere to the NHL Constitution, along with its agreement to arbitrate disputes 

before the Commissioner under Section 12(a). Those agreements were express 

conditions of the NHL’s consent to Wildfire acquiring its ownership interest in the 

Team.

49

2. The NHL’s “Approval” of the 2007 Partnership Agreement

Wildfire next argues that, even though the NHL is not a party to the 2007 

Partnership Agreement, the NHL should be held to the terms of the 2007 Partnership 

Agreement because it “approved both the original 1999 Partnership Agreement and 

the 2007 Partnership Agreement, each of which contain the Mandatory Dispute 

Resolution Clause.”50 Wildfire cites no authority to treat the NHL as a party to the 

2007 Partnership Agreement merely because it purportedly approved the Partnership 

Agreements.

51 

48 2007 Consent Agreement § 2 (emphasis added).

49 1999 Consent Agreement §§ 1(a), 3(a)(A); see also Zimmerman Decl. ¶ 10.

50 Pl.’s Ans. Br. 18. 

51 The NHL argues that Wildfire overstates the extent of the NHL’s approvals in 1999 and 

2007 in connection with the Partnership Agreements. First, Wildfire cites no specific 

document or evidence indicating that the NHL “approved” the Partnership Agreements

themselves. Hrg. 40:6–9. Second, the NHL argues that it approved the transaction, but 

not all of the terms of the transaction documents. Id. at 40:11–23. That argument finds 

support in Section 7(h) of the 2007 Consent Agreement, which states that the Defendants 

and Wildfire “acknowledge and agree that the NHL has reviewed the Transaction 
22

The NHL argues that there is no evidence or allegation in the Complaint that 

the NHL approved the Partnership Agreements. In addition, Wildfire’s assertion 

that in 2007, the NHL purportedly “approved” Section 16.12 of the 2007 Partnership 

Agreement as the controlling dispute resolution provision contradicts the plain 

language of Section 2 of the 2007 Consent Agreement. Section 2 of the 2007 

Consent Agreement, which was signed the same day as the 2007 Partnership 

Agreement, incorporates the terms of the 1999 Consent Agreement, stating that: 

“[e]xcept as expressly set forth herein, nothing in this [Consent] Agreement shall 

amend, modify, waive or otherwise affect in any way any of the provisions of the 

[1999 Consent Agreement] . . . , each of which shall remain in full force and effect.”52 

Wildfire does not identify any language in the 1999 Consent Agreement or the 2007 

Consent Agreement wherein the NHL expressly “approved” Section 16.12 of the 

2007 Partnership Agreement as amending or waiving the NHL’s right to arbitrate 

disputes pursuant to the 1999 Consent Agreement or the NHL Constitution. 

Documents that have been supplied to it for certain limited purposes only and that the NHL 

is not charged with knowledge of, or deemed to have any independent obligations under, 

any of the Transaction Documents. 2007 Consent Agreement § 7(h). That provision goes 

on to say that “in the event of any conflict or ambiguity between any term or provision 

contained in this Agreement and any term or provision of any Transaction Document, the 

terms of this Agreement shall control and all such conflicts or ambiguities shall be resolved 

in a manner that will provide the NHL with the maximum protection that may be afforded 

to it.” Id.

52 2007 Consent Agreement § 2 (emphasis added).
23

Wildfire argues that the simultaneous entry into one agreement containing an 

arbitration provision and another agreement which does not (the 2007 Partnership 

Agreement) is “‘convincing evidence that in instances in which the parties intended 

a particular dispute to be subject to arbitration, a provision creating such an 

obligation was included in the controlling agreement.’” Pl.’s Ans. Br. 29 (quoting 

Bianchini v. Waco Int’l Distrib. Corp., 1992 WL 7038, at *2 (E.D. Pa. Jan. 9, 1992)). 

Bianchini does not support Wildfire’s position. Bianchini involved several 

agreements executed by the same parties. Unlike in Bianchini, the NHL is not a 

party to all of the agreements. It is, however, a party to the agreements with Wildfire 

that require arbitration of disputes before the NHL Commissioner.

3. The Absence of an Arbitration Provision

Next, Wildfire argues that the exclusive forum provision in the 2007 

Partnership Agreement controls this dispute because the NHL demanded, and the 

parties to the 2007 Partnership Agreement included, express restrictions and 

requirements that supersede any other provision in the 2007 Partnership Agreement 

and arbitration was not one of them.53 Wildfire argues the decision not to include 

an arbitration provision in the 2007 Partnership Agreement was a deliberate decision 

of the parties to the agreement and the NHL.54

53 Pl.’s Ans. Br. 13. 

54 Id. at 14.
24

Wildfire’s argument is inconsistent with the plain language of the agreement. 

Section 17.1 of the 2007 Partnership Agreement begins as follows: “The NHL 

Consent requires the inclusion of the following provisions . . . .”55 The 

corresponding section 5(d) of the 1999 Consent Agreement sets forth those required 

provisions.56 Section 17.1 of the Partnership Agreements reflects language that the 

NHL required to be included in the agreement between the Defendants and the 

members of the limited partnership. Nowhere in the Partnership Agreements or the 

1999 Consent Agreement did the NHL indicate it was waiving its contractual right 

to require members to arbitrate disputes.

D. The NHL Has not Waived its Rights Under an Estoppel Theory.

As a general rule, “only the formal parties to a contract are bound by its 

terms.” Weygandt v. Weco, LLC, 2009 WL 1351808, at *3 (Del. Ch. May 14, 2009)

(internal quotations omitted). Wildfire seeks to circumvent that rule through the 

equitable doctrine of estoppel. Specifically, Wildfire relies on a line of cases that 

prevents non-parties to a contract from avoiding exclusive forum or mandatory 

arbitration clauses. Under that line of cases, a court may enforce a forum selection 

provision against a non-signatory if: 

(i) the agreement contains a valid forum selection provision; (ii) the 

non-signatory has a sufficiently close relationship to the agreement, 

55 2007 Partnership Agreement § 17.1.

56 1999 Consent Agreement § 5(d).
25

either as an intended third-party beneficiary under the agreement or 

under principles of estoppel; and (iii) the claim potentially subject to 

the forum selection provision arises from the non-signatory’s standing 

relating to the agreement.

Fla. Chem. Co., LLC v. Flotek Indus., Inc., 262 A.3d 1066, 1090 (Del. Ch. Aug. 17, 

2021); Cap. Grp. Cos., Inc. v. Armour, 2004 WL 2521295, at *5 (Del. Ch. Oct. 29, 

2004).57 

The doctrine of equitable estoppel serves to bind “non-signatories who, during 

the life of the contract, have embraced the contract despite their non-signatory status 

but then, during litigation, attempt to repudiate the forum selection clause in the 

contract.” Armour, 2004 WL 2521295, at *6. The doctrine “prevents the nonsignatory from accepting the benefits of the agreement without also accepting its 

burdens, including the forum selection provision.” Flotek, 262 A.3d at 1074. When 

applying the doctrine, a court must “proceed with a good deal of caution . . . lest 

nuanced concepts of equity be allowed to override established legal principles of 

contract formation.” NAMA Hldgs., LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 

57 When determining whether the non-signatory has embraced the contract, the court may 

also consider whether “(i) the non-signatory accepted a direct benefit from the agreement 

or (ii) the non-signatory had a close relationship to the agreement, a signatory to the 

agreement controlled the non-signatory, and the circumstances establish that the signatory 

agreed to the forum selection provision on behalf of its controlled affiliate.” Flotek, 262 

A.3d at 1090. The benefit may be pecuniary or non-pecuniary. Neurvana Med., LLC v. 

Balt USA, LLC, 2019 WL 4464268, at *4 (Del. Ch. Sept. 18, 2019). But the party must 

have actually received the benefit; “the mere ‘contemplation’ of a benefit does not directly 

confer one.” Id.
26

417, 433 n.35 (Del. Ch. 2007). Because “significant due process considerations [are] 

implicated where forum-selection clauses are applied to a non-signatory,” courts 

must be doubly cautious when asked to expand the doctrine’s reach. Europa Eye 

Wear Corp. v. Kaizen Advisors, LLC, 390 F. Supp. 3d 228, 232 (D. Mass. 2019). 

The estoppel paradigm is ill equipped to address this case. Wildfire is not seeking 

to compel the NHL to defend against claims in Delaware. 

Wildfire’s estoppel theory, in essence, is akin to arguing that the NHL has 

implicitly waived its right to enforce the express arbitration requirements of the 1999 

Consent Agreement and Article 6.3(b) of the NHL Constitution as a result of the 

2007 Partnership Agreement, to which the NHL is not a party. Under Pennsylvania 

law,

a waiver of a right to proceed to arbitration pursuant to the term of a 

contract providing for binding arbitration should not be lightly inferred 

and unless one’s conduct has gained him an undue advantage or 

resulted in prejudice to another he should not be held to have 

relinquished the right.

Keystone Tech. Grp., Inc. v. Kerr Grp., Inc., 824 A.2d 1223, 1226 (Pa. Super. Ct. 

2003) (quoting Kwalick v. Bosacco, 478 A.2d 50, 52 (Pa. Super. Ct. 1984)); see also 

Singer v. Jefferies & Co., 575 N.E.2d 98 (N.Y. 1991); accord Halpern Med. Servs., 

LLC v. Geary, 2012 WL 691623, at *3 (Del. Ch. Feb. 17, 2012). Here, Wildfire fails 

to establish that any such circumstances exist, and its waiver argument is without 

merit. See Agspring, LLC v. NGP X US Hldgs., L.P., 2022 WL 170068, at *7 (Del. 
27

Ch. Jan. 19, 2022) (affirming that party was not “estopped” from enforcing and had 

not “waive[d] its rights” under “arbitration provisions” of one contract, on the 

ground that the party allegedly took an “inconsistent position” in another contract).

The NHL is not asserting claims against Wildfire in another jurisdiction. Of 

the nine cases Wildfire cites as a basis to support its estoppel theory, none applied 

equitable estoppel to bind a party to a term in a contract it did not sign, in lieu of and 

in order for a plaintiff to evade an express requirement in its own contract with the 

other party.58

In Plaze, Inc. v. Callas, 2019 WL 1028110 (Del. Ch. Feb. 28, 2019), Justice, 

then-Vice-Chancellor, Montgomery-Reeves rejected a similar estoppel argument to 

what Wildfire makes here. The plaintiff in Plaze sued various signatories to a 

contract, in which only some were defined as “Parties” covered by a forum selection 

clause. Id. at *1–3. Invoking equitable estoppel, the plaintiff argued that those 

signatories who were not defined as “Parties” covered by the forum selection clause 

58 See Pl.’s Ans. Br. 20–27. See, e.g., McWane, Inc. v. Lanier, 2015 WL 399582, at *6–8 

(Del. Ch. Jan. 30, 2015) (holding non-signatories subject to forum selection clause where 

the agreement to which they were parties contained only a consent to jurisdiction 

provision); River Valley Ingredients, LLC v. Am. Proteins, Inc., 2020 WL 2220148, at *3–

5 (D. Del. May 7, 2020) (exclusive forum provision in one contract that bound nonsignatory); BE&K Eng’g Co., LLC v. RockTenn CP, LLC, C.A. No. 8837-VCL (Del. Ch. 

Sept. 27, 2013) (TRANSCRIPT), at 120–21 (non-signatory to contract held subject to its 

exclusive forum provision as to claims it was asserting under the contract); Armour, 2004 

WL 2521295, at *5–7 (applying equitable estoppel in the alternative to obtain personal 

jurisdiction over non-signatory who did not assert existence of a competing contract).
28

should nevertheless be bound to that clause because they were “third-party 

beneficiaries or entities closely related to the contract.” Id. at *8. The court rejected 

that argument, holding that the non-Party signatories did “not seek to benefit from 

the contract without accepting their obligations,” but rather, expressly “bargained” 

for specific rights, which equity would not override in favor of terms for which 

“other parties bargained.” Id. at *9.

Wildfire’s argument is even weaker. Unlike the plaintiff in Plaze, who 

unsuccessfully attempted to invoke equity to bind a signatory to a forum selection 

term in its own contract when the signatory did not agree to that term, Wildfire seeks 

here to bind the NHL to the forum selection provision of the 2007 Partnership 

Agreement that the NHL did not sign and to which it did not agree. Additionally, 

Wildfire seeks to do so in contravention of express arbitration requirements agreed 

to by Wildfire, the Defendants, and the NHL pursuant to the 1999 Consent 

Agreement and Article 6.3(b) of the NHL Constitution, as reaffirmed in four 

subsequent owners’ consent agreements, including the 2007 Consent Agreement, 

which Wildfire, the Defendants, and the NHL executed on the same day that Wildfire 

and the Defendants executed the 2007 Partnership Agreement. The estoppel theory 

breaks down when the non-signatory and the party seeking to enforce a forum 

selection clause are also parties to a separate, contemporaneous agreement with a 
29

broad arbitration provision.59 Otherwise, a plaintiff could vitiate the parties’ 

“freedom . . . in commerce to strike bargains,” when the law instead requires 

contracts to be “honor[ed] and enforce[d] . . . as plainly written.” TR Inv’rs, LLC v. 

Genger, 2013 WL 603164, at *20 n.198 (Del. Ch. Feb. 18, 2013) (internal quotations 

and citation omitted). The court declines to accept an equitable estoppel theory to 

override Wildfire’s express contractual bargain with the NHL.

60

E. The Arbitration and Delaware Venue Provisions Are Easily 

Harmonized.

Wildfire acknowledges that “[t]he Court’s task is to harmonize various 

agreements, not go looking for hypothetical conflicts with other agreements.”61 

59 See, e.g., Chapter 7 Tr. Constantino Flores v. Strauss Water Ltd., 2016 WL 5243950, at 

*13–15 (Del. Ch. Sept. 22, 2016) (holding that when a party who sought to use equitable 

estoppel to compel arbitration was “a party to another agreement with the party” against 

whom it sought to use estoppel, and “that other agreement [was] central to the dispute and 

it contain[ed] an express forum selection provision,” the party invoking estoppel could not 

rely on such a doctrine to “have the Court vary the terms of its contracts [with the other 

party] to compel a result for which it did not bargain”); TR Inv’rs, LLC v. Genger, 2013 

WL 603164, at *3, 20 (Del. Ch. Feb. 18, 2013) (declining to “override the parties’ bargain” 

based on equity).

60 See Heartland Del. Inc. v. Rehoboth Mall Ltd. P’ship, 57 A.3d 917, 925 (Del. Ch. Aug. 

27, 2012) (“Equity . . . will not rewrite a contract to save a party from its own negligence.”); 

Kan. City S. v. Grupo TMM, S.A., 2003 WL 22659332, at *5 (Del. Ch. Nov. 4, 2003) 

(“TMM cannot invoke general equity principles” when it has “contracted away its right to 

undertake actions . . .”); Absalom Tr. v. Saint Gervais LLC, 2019 WL 2655787, at *6 (Del. 

Ch. June 27, 2019) (observing that a court should not “invoke equitable principles to 

override the plain language of [a contract]”); MHS Cap. LLC v. Goggin, 2018 WL 

2149718, *13–14 (Del. Ch. May 10, 2018) (“[H]aving bargained for certain contractual 

rights against [the defendant], and for certain remedies, [the plaintiff] cannot use equity to 

circumvent the results of its bargain.”).

61 Pl.’s Ans. Br. 30.
30

Accepting that invitation, the court finds it relatively easy to harmonize the forum 

provision in the 2007 Partnership Agreement and the arbitration provisions of the

NHL Constitution and the Consent Agreements.

The NHL Constitution and the Consent Agreements give the Commissioner 

the authority to require arbitration of certain disputes involving the league and its 

Member Clubs before the Commissioner. Among those disputes are disputes 

between owners of any Club. The NHL Constitution and the 1999 Consent 

Agreement do not mandate arbitration in all qualifying disputes; instead, they give 

the NHL Commissioner the option to assert jurisdiction over those disputes. For 

example, Section 6.3(b) of the NHL Constitution provides, in pertinent part: “The 

Commissioner may elect not to arbitrate a dispute in any circumstances that he 

determines appropriate.”62 Similarly, Section 12(a) of the 1999 Consent Agreement, 

provides: “If the Commissioner shall give written notice to the parties that he has 

elected not to arbitrate and resolve such dispute, such dispute shall be resolved in 

accordance with any applicable agreements between the parties and any applicable 

law.”63 

Viewed in this light, the arbitration provisions in the NHL Constitution and 

the 1999 Consent Agreement give the Commissioner the preemptive right to assert 

62 NHL Constitution § 6.3(b).

63 1999 Consent Agreement § 12(a).
31

jurisdiction and to arbitrate qualifying disputes. But if the Commissioner declines 

to exercise that authority, then the parties to the 2007 Partnership Agreement are free 

to provide for an exclusive forum to govern their dispute. Here, the parties to the 

2007 Partnership Agreement chose the courts of Delaware as the exclusive forum 

for disputes under that agreement which either: (1) were not within the scope of 

matters subject to arbitration under the NHL Constitution and the Consent 

Agreements or (2) were within the scope of those provisions, but the Commissioner 

elected not to assert jurisdiction. The claims in this action fall within the scope of 

the arbitration provisions, and the Commissioner has invoked his authority to 

arbitrate this dispute. Doing so does not vitiate the venue provision of the 2007 

Partnership Agreement. Section 16.12 of the 2007 Partnership Agreement is 

subordinate to the arbitration provisions of the NHL Constitution and the 1999 

Consent Agreement, to which Wildfire and the Defendants have agreed and 

accepted.

F. The Consent Agreements Provide that Any Conflict or Ambiguity 

Must be Resolved in favor of the NHL.

Section 12(g) of the 1999 Consent Agreement (hereinafter the “Conflicts 

Clause”) states:

[I]n the event of any conflict or ambiguity between any term or 

provision contained in this [Consent] Agreement and any term or 

provision of [the 1999 Partnership Agreement], the terms of this 

Agreement shall control and all such conflicts or ambiguities shall be 
32

resolved in a manner that will provide the NHL with the maximum 

protection that may be afforded to it.64

An identical provision is found in the 2007 Consent Agreement.65 Pursuant to the 

Conflicts Clause, the Consent Agreements “control” in all respects over the 

concurrently executed Partnership Agreements. Plaintiff seeks to defeat the parties’ 

express intent by arguing that the venue clause in Section 16.12 of the 2007 

Partnership Agreement (the “Venue Clause”) controls over the arbitration clause in 

Article 6.3(b) of the NHL Constitution mandated by the Consent Agreements, and 

the separate arbitration clauses located in the Consent Agreements. Plaintiff’s 

argument is antithetical to and belied by the Conflicts Clause.

The court concludes that the Venue Clause in the 2007 Partnership Agreement 

and the arbitration clausesin the 1999 Consent Agreement and the NHL Constitution 

can and do co-exist. But even if these provisions could not co-exist, Section 12(g) 

of the 1999 Consent Agreement resolves any conflict in favor of arbitration. In 

Karish v. SI International, Inc., 2002 WL 1402303 (Del. Ch. June 24, 2002), the 

parties executed two related agreements on the same day; both agreements included 

integration clauses, but only one agreement included an arbitration clause. Id. at *1–

2. The agreement with the arbitration clause included the following conflicts clause: 

64 1999 Consent Agreement § 12(g) (emphasis added).

65 2007 Consent Agreement § 7(h).
33

“wherever a conflict exists between this Agreement and any other agreement, this 

Agreement shall control.” Id. at *2 (bracketing omitted). The plaintiff sued under 

the agreement without the arbitration clause. Id at *3. This court held that, because 

the two agreements were executed concurrently and coordinated, “they form[ed] one 

contract and must be examined as such.” Id. Next, the court held that the conflicts 

clause “provide[d] the solution” and, because the agreement with the arbitration 

clause controlled the other agreement, “the arbitration clause [would] control.” Id. 

Hence, the court ordered arbitration. Id. at *5. That reasoning is equally applicable 

here as an alternative basis for compelling arbitration.

G. Wildfire’s Challenge to the Commissioner’s Impartiality and 

Qualifications Is Premature and Unpersuasive.

Wildfire suggests that it should be permitted to proceed in this court because 

the Commissioner is “conflicted” and “biased” and cannot be trusted to impartially 

arbitrate this dispute.66 According to Wildfire, the Commissioner cannot resolve 

this matter impartially because the NHL “has already approved and supports the 

Proposed Transaction at the heart of” this dispute.67 In addition, Wildfire suggests 

that only a “Delaware judge” has “the special expertise necessary to resolve” 

Wildfire’s claims.68

66 Pl.’s Ans. Br. 44–48.

67 Zimmerman Decl., Ex. L at 1; Pl.’s Ans. Br. 45–46.

68 Zimmerman Decl., Ex. J at 5.
34

None of these arguments defeat the Commissioner’s jurisdiction. First, “it is 

well established” that a court “cannot entertain an attack upon the qualifications or 

partiality of arbitrators until after the conclusion of the arbitration and the rendition 

of an award.” Hojnowski v. Buffalo Bills, Inc., 995 F. Supp. 2d 232, 239 (W.D.N.Y. 

2014) (internal quotations omitted) (rejecting challenge to NFL Commissioner as 

arbitrator); Commodore Tr., 16-674-BC, at 17–18 (rejecting challenge to NHL 

Commissioner’s impartiality because the remedy for any such claim “is upon the 

completion of the arbitration”); Alexander v. Minn. Vikings Football Club LLC, 649 

N.W.2d 464, 467 (Minn. Ct. App. 2002) (similar ruling regarding NFL 

Commissioner). Any challenge to the Commissioner’s qualifications or impartiality 

therefore fails as premature.

Second, Wildfire cannot “be heard to complain” about the Commissioner’s 

“asserted biases” when the claimed biases were “known prior to the selection of the 

arbitrator.” Nat’l Hockey League Players’ Ass’n v. Bettman, 1994 WL 738835, at 

*13–14 (S.D.N.Y. Nov. 9, 1994). In such circumstances, courts reject challenges to 

league commissioners acting as arbitrators. See, e.g., id.; Commodore Tr., 16-674-

BC, at 15–18 (rejecting challenge to the Commissioner’s impartiality when 

challenger “had notice” of the claimed bias, and nonetheless provided “informed and 

knowledgeable consent to arbitration” before him); Nat’l Football League Mgmt. 

Council v. Nat’l Football League Players Ass’n, 820 F.3d 527, 548 (2d Cir. 2016) 
35

(rejecting partiality challenge to NFL Commissioner as arbitrator, when parties 

knew of alleged bias and contracted for his authority over the disputes); Hojnowski, 

995 F. Supp. 2d at 239 (similar). Here, Wildfire knowingly signed at least five (5) 

separate owners’ consent agreements dating back over twenty years to 1999, 

including in connection with other ownership transactions, and in doing so, 

expressly agreed to arbitrate disputes like the present one fully and exclusively 

before the Commissioner.

Additionally, Wildfire’s assertion that the Commissioner lacks impartiality 

because the NHL Board of Governors approved FSG’s acquisition of a controlling 

interest in Lemieux LP is unpersuasive. Notwithstanding its express agreement to 

arbitrate its claims fully and exclusively before the Commissioner pursuant to the 

1999 Consent Agreement and the NHL Constitution, Wildfire elected not to raise 

with the Commissioner any issues relating to FSG’s two-step transaction at any time 

prior to the Board of Governors’ vote on the matter,69 even though Wildfire alleges 

that it knew of FSG’s plans to acquire a controlling interest in Lemieux LP as far 

back as early-to-mid November 2021.70 Wildfire does not provide any basis to 

conclude that the Board of Governors’ vote reflects any prejudgment or rejection by 

the Commissioner of arguments that Wildfire may make as to the merits of this 

69 Zimmerman Decl. ¶ 22.

70 Compl. ¶¶ 36–37.
36

dispute. In addition, Wildfire cannot rely on its own failure to submit this matter to 

arbitration before the Commissioner prior to the Board of Governors’ vote as a basis 

to allege any pre-judgment of this matter, and thus, to challenge its express 

agreement to arbitrate disputes like the present fully and exclusively before the 

Commissioner.

Third, Wildfire’s assertion that the Commissioner is not qualified to resolve 

this dispute is conclusory and contrary to the record. The current Commissioner has 

served in that position for nearly 30 years. The NHL asserts—and Plaintiff does not 

challenge—that over the course of his tenure, the Commissioner has been 

responsible for and integrally involved in, among other things, team-related 

ownership transactions, franchise expansion transactions, financing transactions, 

and other complex commercial transactions, including, for example, negotiating 

broadcasting agreements, collective bargaining agreements with the National 

Hockey League Players’ Association and the National Hockey League Officials’ 

Association, and contracts with material NHL licensees.71 He also has mediated and 

arbitrated numerous disputes pursuant to his authority under the NHL Constitution 

and various owners’ consent agreements, including, for example, as ordered by the 

Tennessee Chancery Court in Commodore Trust.

72 Finally, far from disqualifying 

71 Zimmerman Decl. ¶ 6.

72 Id.
37

him as arbitrator, the Commissioner’s role within the NHL and intimate knowledge 

of its business render him uniquely positioned to resolve disputes like the one 

presented here, as holders of ownership interests in Member Clubs, such as Wildfire 

and Defendants, acknowledge when they agree to resolve disputes fully and 

exclusively before him pursuant to the NHL Constitution. The dispute resolution 

provisions of the NHL Constitution, including Article 6.3(b)(5), are, in part,

recognition by the Member Clubs of the value of maintaining autonomy over the 

NHL’s internal affairs. Indeed, for this reason, courts have expressed an 

“unwillingness to intervene in matters that involve the business operations of 

professional sports organizations,” including because “judicial intervention in such 

disputes” would unduly “interfer[e] with the [l]eague’s autonomy in matters where 

the [league] and its commissioner have much greater competence and understanding 

than the courts.” Oakland Raiders v. Nat’l Football League, 32 Cal. Rptr. 3d 266, 

284 (Cal. Ct. App. 2005); see also Crouch v. Nat’l Ass’n for Stock Car Auto Racing, 

Inc., 845 F.2d 397, 402 (2d Cir. 1988) (similar); Charles O. Finley & Co., Inc. v. 

Kuhn, 569 F.2d 527, 543 (7th Cir. 1978) (similar). Here, the Commissioner is wellsuited to resolve Wildfire’s claims, which likewise concern the business operations 

of the NHL, because the claims challenge the ongoing operation and control of one 

of the NHL’s thirty-two member clubs. Accordingly, Wildfire cannot avoid the 

Commissioner’s full and exclusive arbitral jurisdiction based on unsupported
38

assertions that the Commissioner is neither “neutral” nor “qualified” to resolve this 

dispute.73

III. CONCLUSION

For the foregoing reasons, the NHL’s motion to compel arbitration of this 

dispute before the NHL Commissioner is granted, and this action is, accordingly, 

dismissed pursuant to Court of Chancery Rule 12(b)(1).

IT IS SO ORDERED.

73 See id., Ex. L at 1.