# SUPREME COURT OF MISSOURI en banc STATE ex rel. TODD HEWITT, ) ) Relator, ) ) v. ) No. SC 93846 ) HONORABLE KRISTINE KERR, ) JUDGE, CIRCUIT COURT for ) ST. LOUIS COUNTY, MISSOURI, ) ) Respondent. )
ORIGINAL PROCEEDING IN MANDAMUS Opinion issued April 28, 2015 PER CURIAM A former employee of the St. Louis Rams Partnership, Todd Hewitt, seeks a writ of mandamus requiring the circuit court to vacate its order compelling arbitration of his claim of age discrimination against the St. Louis Rams Partnership and three of its aff iliates. Five judges find that a writ of mandamus is the appropriate mechanism to review whether the trial court erred in sustaining a motion to compel arbitration. Four judges find that Mr. Hewitt’s employment contract contained a valid and en forceable arbitration clause that required him to arbitrate disputes, including his statutory claims, against the Rams. Four judges also find that the National Football League’s dispute resolution procedural guidelines setting out the essential terms of a rbitration were not referenced in Mr. Hewitt’s employment contract and, therefore, were not incorporated into his contract. Four judgesfurther find that the terms of the contract designating the NFL c ommissioner, an employee of the team owners, as the s ole arbitrator with unfettered discretion to establish the rules for arbitration are unconscionable and, therefore, unenforceable

. Four judges find that Missouri’s uniform arbitration act provides a mechanism to imply the terms missing from
the arbitratio n agreement and provides the rules for appointing an arbitrator to replace the
NFL c ommissioner. Accordingly, four judges issue a permanent writ of mandamus directing the trial court to vacate its order granting the motion to compel arbitration and, inste ad, issue an order co mpelling arbitration wherein the trial court appoints a neutral arbitrator, implies the specific terms of arbitration from applicable statues in Missouri’s uniform arbitration act, and directs the parties to proceed with arbitration.
I. Factual and Procedural Background The Rams are a professional football team affiliated with the NFL. Starting as a summer equipment department employee for the Rams during college, Mr. Hewitt joined the organization full time in 1978 and was promote d to equipment manager in 1985. He held that position until early 2011. Mr. Hewitt entered into a number of employment contracts with the Rams during the more than 40 years he was employ ed by the team. In November 2008 , he signed his most

recent contra ct with the Rams. It covered the 2009

- 2010 and 2010

- 2011 NFL seasons. Like many of his prior employment contracts, this contract contained an arbitration clause that stated: Hewitt agrees to abide by and to be legally bound by the Constitution and By

Laws and Rules and Regulations of the National Football League and by the decisions of the Commissioner of the National Football League, which shall be final, binding, conclusive and unappealable. The Rams and Hewitt also3 severally and mutually promise and agree that in any dispute which may arise between them, the matter in dispute shall be referred to the Commissioner of the National Football League for decision and after due no tice and hearing, at which both parties may appear, the decision of said Commissioner shall be final, binding, conclusive and unappealable, and the Rams and Hewitt severally and jointly hereby release the Commissioner and waive every claim each or both hav e or may have against the Commissioner and/or the National Football League, and against every director, partner, officer, and stockholder of every Club in the National Football League, for all claims and demands whatsoever arising out of or in connection w ith any decision of the Commissioner of the National Football League. The c onstitution and b ylaws of the NFL further provided that “[t]he Commissioner shall have full, complete, and final jurisdiction and authority to arbitrate. ” In January 2011, then he ad coach Steve Spagnuolo notified Mr. Hewitt that his employment contract would not be renewed. At that time, Mr. Hewitt was 54 years old. In May 2012, Mr. Hewitt filed suit in the St. Louis County circuit court against the St. Louis Rams Partnership and three affiliated companies − The Rams Football Company, Inc., ITB Football Company, L.L.C., and The St. Louis Rams, L.L.C. − (collectively “the Rams”) alleging age discrimination in violation of the Missouri Human Rights Act (MHRA), section
213.010 et seq

. 1 The Rams moved to compel arbitration and to dismiss or stay the court proceedings, citing the arbitration provision of Mr. Hewitt’s employment contract. Mr. Hewitt opposed arbitration, arguing that the arbitration provision wa s invalid and unenforceab le against him because: (1) three of the four defendants did not sign the agreement; (2) there was no meeting of the minds as to the essential terms of the arbitration agreement; (3) there was no consideration for the arbitration agreement; (4) the agreem ent does not contain a clear and

1 All Missouri statutory referenc es are to RSMo 2000, unless otherwise indicated.4 unmistakable waiver of Mr. Hewitt’s right to bring a statutory violation claim in court and several provisions of the arbitration agreement interfere with Mr. Hewitt’s rights under the MHRA, barring arbitration under the “d enial of statutory rights” doctrine; and (5) several provisions of the arbitration agreement are unconscionable, including the provision naming the NFL c ommissioner as the arbitrator. The trial court granted the Rams’ motion to compel arbitration and ordered that the court action be stayed pending the arbitration. After an unsuccessful attempt at an appeal, 2 Mr. Hewitt petitioned the court of appeals for a writ of mandamus or prohibiti on. The court of appeals issued a preliminary order in mandamus

. A fter opinion , b oth parties sought, and were granted, transfer to this Court pursuant to article V, section 10 of the Missouri Constitution. On transfer, Mr. Hewitt asks this Court to issu e a writ of mandamus preventing the trial court from compelling arbitration of this dispute. 3
II. Standard of R eview and I ssuance of W rit of M andamus This Court has the authority to “issue and determine original remedial writs,” including the extraordin ary writ of mandamus. See M O

. C ONST . art. V, sec. 4.1. This Court

2 After ordering the noted referral to arbitration and a stay, the trial court also dismissed the case, apparently believing this would allow for immediate appeal of its ruling. Mr. Hewitt did appeal. The court of appeals did not reach the merits of the arbitration order at that time. Instead, it found the trial court’s order simultaneously asserting jurisdiction by ordering arbitration to proceed and relinquishing jurisdiction by dismissing the case was “ internally inconsistent

. ” It reversed the dismissal order and reinstated the trial court’s first order staying the court proceedings pending the outcome of arbitration. After remand , Mr. Hewitt filed his writ petition in the court of appeals. The propriety of the earlier proceedings during the appeal is not before th is Court. 3 Upon transfer, this Court “consider[s] the case the same as one that had been commenced as an original proc eeding in this court.” State ex rel. Adrian Bank v. Luten , 488 S.W.2d 636, 636 (Mo. banc 1973), disapproved of on other grounds by State ex rel. Farmers Ins. Co., Inc. v. Murphy , 518 S.W.2d 655, 664 (Mo. banc 1975).5 recognized , in State ex rel. Vincent v. Schneider that a writ of mandamus is an appropriate mechanism to review whether a motion to compel arbitration was improperly sustained

. 194 S.W.3d 853, 855 (Mo. banc 2006)

. A litigant seeking “relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed.” Furlong Cos., Inc. v. City of Kansas City , 189 S.W.3d 157, 166 (Mo. banc 2006). This right may arise from a statute that creates a right but does not explicitly provide mandamus as a remedy to enforce the right. See State ex rel. JCA Architects, Inc. v. Schmidt , 751 S.W.2d 756, 757 (Mo. banc 1988). Additionally, t his Court will not issue a remedia l writ “in any case wherein adequate relief can be afforded by an appeal.” Rule 84.22(a). The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. (2006), governs the applicability and enforceability of arbitration agreements in all contracts involving interstate commerce. Section 2 extends the scope of the FAA to any “contract evidencing a transaction involving commerce

. ” 9 U.S.C. § 2. Section 1 defines “ commerce ” as “commerce among the several States .” Id. § 1

. The United States Supreme Court has construed this language broadly, stating: We have interpreted the term “involving commerce” in the FAA as the functional equivalent of the more familiar term “affecting commerce” − words of art that ordinarily signal the broadest permissible exercise of Co ngress' Commerce Clause power. Because the statute provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause,” it is perfectly clear that the FAA encompasses a wider range of transactions than those actually “in commerce” − that is, “within the flow of interstate commerce.” Citizens Bank v. Alafabco, In c. , 539 U.S. 52, 56 (2003) (internal citations omitted). The Supreme Court further has held that the FAA applies even when, for example, an arbitration agreement is executed in a single state by residents of that state if one of the6 parties to the agreement engages in business in multiple states. Id. at 57. It is undisputed that the Rams operate in interstate commerce; the team − its players and employees − part icipate in away games and take in revenue in other states, and several of the defendant corporations named in this suit are incorporated in Delaware. Mr. Hewitt’s employment contract to provide equipment managerial services to the team as it was engaged i n interstate commerce brings the contract within the purview of the FAA. 4 Under the FAA, a party must submit to arbitration “save upon such grounds as exist at law or in equity for the revocation of any contract.” 5 9 U.S.C. § 2. 6 This Court and the Sup reme Court have found the contract defenses Mr. Hewitt raises fall under the FAA’s aforementioned savings clause. AT&T Mobility LLC v. Concepcion , 131 S. Ct. 1740, 1745 (2011); Robinson v. Title Lenders, Inc. , 364 S.W.3d 505, 515 (Mo. banc 2012). Mr. Hewit t has a clearly established right to arbitrate his claims using only those terms that are not

4 The Missouri Uniform Arbitration Ac t (MUAA), section 435.350 et seq. , governs those arbitration matters not preempted by the FAA. This Court rejects Mr. Hewitt’s argument that this matter is governed solely by the MUAA and not the FAA, but even were the FAA not applicable here, Missouri co urts have recognized that the MUAA was “fashioned after the Federal Arbitration Act” and that “[t]he FAA and Missouri’s Arbitration Act are substantially similar.” CPK/Kupper Parker Commc’ns, Inc. v. HGL/L. Gail Hart , 51 S.W.3d 881, 883 (Mo. App. 2001). 5 This right is replicated in MUAA. See section 435.350. 6 Section 2 of the FAA states in relevant part: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof , or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a ny contract

. ( E mphasis added )

.7 unconscionable as determined using the general principles governing contract law in Missouri

. See Robinson , 364 S.W.3d at 515. Further, m andamus is an appro priate remedy whe n alternative remedies waste judicial resources or result in a burdensome delay, creating irreparable harm to the parties. State ex rel. Sasnett v. Moorhouse , 267 S.W.3d 717, 725 (Mo. App. 2008). If Mr. Hewitt is not bound to arbitrate u nder the terms of his contract , t his Court can readily avoid this duplicative and unnecessary additional litigation through a writ of mandamus . To do otherwise would be result in a failure of judicial efficiency. Accordingly, there is no adequate remedy on appeal for the present claims. See Vincent , 194 S.W.3d 853. H ere, as in Vincent, a writ of mandamus is the proper mechanism to review the grant of a motion to compel arbitration

. While this Court has held that inconvenient delay to the complaining p arty is not, in itself, a basis for the issuance of a writ of mandamus, the ruling was based on very different circumstances. State ex rel. Kelley v. Mitchell , 595 S.W.2d 261, 268 (Mo. banc 1980). In Kelley , the relators first sought declaratory judgment regarding the construction of a contested statute and, one day later, filed a writ of mandamus. Id. at 262

- 63. The Court found the writ of mandamus was an inappropriate attempted “short

- cut” because there was “no reason to doubt that the relators would be able to receive full, prompt and adequate relief in the declaratory judgment action.” Id. at 267. Mr. Hewitt has no immediate alternative remedy to his claim that the arbitration agreement is invalid. Additionally, the delay results in harm not only to the relator but also to both parties, who must needlessly8 protract litigation and dispute resolution, and to the courts, which have already devoted considerable resources to litigate this issue. Additionally, t o the extent that it could be argued that prohibition rather than mandamus is the more appropriate writ, this Court has noted, “[T]he distinction between prohibition and mandamus is often elusive and sometimes only serves to create confusion for parties.” State ex rel. Unnerstall v. Berkemeyer , 2 98 S.W.3d 513, 515

- 16 (Mo. banc 2009). Unnerstall notes that this confusion has led the court of appeals to hold that distinctions between the two types of writs are anachronistic and that , in modern practice , “[t]he distinction between mandamus and prohi bition is at best blurred, at worst nonexistent, and the subject matter to which the two writs apply overlap to a great extent.” Id. at 516 (internal citations omitted). For example, prohibition has also been used to prevent a waste of judicial resources through unnecessary, inconvenient and expensive litigation. State ex rel. Springfi el d Underground, Inc. v. Sweeney , 102 S.W.3d 7, 8

- 9 (Mo. banc 2003); See also State ex rel. Police Ret. Sys. of St. Louis v. Mummert , 875 S.W.2d 553 (Mo banc. 1994)

. III . Arbitration Clause is Valid and Enforceable Mr. Hewitt asserts the arbitration provision is invalid and unenforceable on numerous grounds , including that it provides for a decision by an allegedly biased arbitrator, a lack of mutual agreement to the ar bitration’s essential terms, lack of consideration, lack of waiver of and a denial of his statutory rights, and allegations of procedural unconscionability. He also contends that the three named defendants that did not sign the employment contract

cannot enforce the arbitration provision against him. Mr. Hewitt ’ s claims of lack of consideration and procedural unconscionability relate to the validity of the agreement to9 arbitrate, whereas his claims regarding the arbitrator and terms of arbitration relate to only specific terms of arbitration. Accordingly, the Court will address these claims separately. The Court will also address separately Mr. Hewitt ’ s arguments that he did not waive his right to bring his statutory claim in a judicial forum and that the defendants who did not sign
the contract cannot enforce it because those arguments involve whether the ar bitration agreement encompasses his underlying claims

. A. The Court May Determine Whether th e Arbitration Agreement is Vali d

As previously discus sed, Mr. Hewitt’s employment contract is governed by the FAA. The Supreme Court stated in Concepcion that the FAA reflects a “liberal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.

. . . [ C]ourts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms.” 131 S. Ct. at 1745 (internal citations and quotation marks omitted). If there is no valid arbitration clause, however, then there is no a greement to arbitrate , and the case may proceed in civil court. See 9 U.S.C. § 2. A court determines the validity of an arbitration agreement by applying state contract law principles. Vincent , 194 S.W.3d at 856. In Brewer v. Missouri Title Loans , this Court reaffirmed that Concepcion did not diminish a trial court’s broad authority to evaluate the validity and enforceability of arbitration agreements prior to granting or denying a motion to compel arbitration and , so , “permit[s] state courts to apply state law defenses to the formation of the particular contract at issue.” 364 S.W.3d 486, 492 (Mo. banc 2012)

. This provision means that, prior to referral to arbitration, a Missouri court can declare an arbitration agre ement “unenforceable10 if a generally applicable contract defense, such as fraud, duress, or unconscionability, applie[s] to concerns raised about the agreement.” 7 Robinson , 364 S.W.3d at 515 (Mo. banc 2012) ; see also Brewer , 364 S.W.3d at 492 n.3. Mr. Hewitt concedes that his employment contract included an arbitration provision, and the trial court found that a similar arbitration provision had been included in many of the previous employment contracts he signed with the Rams over the prior 40 year s. This provision is treated like any other contract and is enfo r ced according to its terms. See Concepcion , 131 S. Ct. at 1745

. T he terms of a contract are to be read “as a whole to determine the intention of the parties,” giving the terms “their plain, ordinary , and usual meaning

. ” Dunn Indus. Grp., Inc. v. City of Sugar Creek , 112 S.W.3d 421, 428 (Mo. banc 2003). According to the plain language in his contract with the Rams, Mr. Hewitt intended to be legally bound by the c onstitution and b ylaws of the NFL , which provided that his disputes would be arbitrated

. B. Arbitration C lause is Supported by Valid Consideration Despite executing an agreement to arbitrate, Mr. Hewitt asserts the agreement is not valid for lack of consideration. Specifically, he claims a lack of consideration on the basis that both contracting parties were not bound by the arbitration agreement. As Mr. Hewitt

7 While the ultimate issue simply is whether a contract or a term of the contract is unconscionable, in making this determination , Missouri courts examine both the procedural aspects of contract formation and the substantive provisions of the contract. Vincent , 194 S.W.3d at 858

. “Procedural unconscionability deals with the formalities of making the contract, while substantive unco nscionability deals with the terms of the contract itself.” Id.

“ P rocedural unconscionability focuses on such things as high pressure sales tactics, unreadable fine print, or misrepresentation among other unfair issues in the contract formation process” while “[s]ubstantive unconscionability means an undue harshness in the contract terms

. ” Id.11 notes, the first sentence of the provision states only that “Hewitt agrees to abide by and to be legally bound by the Constitution and By

- Laws and Rules and Regulations of the National Football League and by the decisions of the Commissioner of the National Football League, which shall be final, binding, conclusive and unappealable.” But the arbitration provision does n ot end there. The following sentence states , “The Rams and Hewitt also severally and mutually promise and agree that in any dispute which may arise between them, the matter in dispute shall be referred to the Commissioner of the National Football League f or decision

. . . .” In this second sentence , the Rams expressly promise to arbitrate any and all disputes before the c ommissioner

. B oth the Rams and Mr. Hewitt signed and are bound by this agreement. T he trial court found that the Rams ’ agreement wi th the NFL stated that they, as members of the league, woul d be bound by the

c onstitution and b ylaws , which expressly refer to the c ommissioner’s authority to arbitrate

. While, as Mr. Hewitt notes, legal questions could arise as to the meaning of some of these constitutional provisions or bylaws , he has not demonstrated that a fact question exists as to the content of these provisions or as to the fact that those provisi ons say that NFL teams must comply with their terms. The record supports the trial court’s explicit finding that the c onstitution and b ylaws “already bind the St. Louis Rams Partnership, [but] Mr. Hewitt must separately agree to be bound.” Mr. Hewitt ci tes no cases that would have required the Rams to expressly reaffirm their NFL membership agreement obligations in each individual employment contract they sign when, as here, the individual employment contract requires that arbitration be determined by th e c ommissioner and governed by the NFL c onstitution and b ylaws.12 Indeed, the language of the arbitration agreement signed by Mr. Hewitt and the Rams distinguishes this case from the two cases cited by Mr. Hewitt in which arbitration agreements in NFL employ ment contracts were found to lack consideration. Sniezek v. Kansas City Chiefs Football Club , 402 S.W.3d 580 (Mo. App. 2013), and Clemmons v. Kansas City Chiefs Football Club, Inc. , 397 S.W.3d 503 (Mo. App. 2013). In those agreements, the employees alone promised to be bound by the c onstitution and b ylaws of the NFL and to refer disputes to the c ommissioner for arbitration. The Chiefs did not, as the Rams do here, promise to arbitrate disputes before the c ommissioner, nor did they sign the agreements at issue in Sniezek and Clemmons . By contrast, Mr. Hewitt’s employment contract was signed by and is binding on both Mr. Hewitt and then Rams’ president and general manage r , Jay Zygmunt. Therefore, Mr. Hewitt’s argument that the agreement
lacked considerati on fails. C. No Procedural Unconscionability Mr. Hewitt contends the agreement should not be enforced because the conditions under which he renewed his employment contract were unconscionable . Specifically, he

asserts the contract was presented “in a h urried way without any discussion of [the contract’s] terms.” This argument is undermined by Mr. Hewitt’s own long, more than 40 year tenure as a Rams employee, during which time the trial court found he had signed many employment contracts containing arbitration provisions substantially similar to this

one. 8 As the trial court stated, “If Mr. Hewitt did not read his contract, inquire about its

8 Although Mr. Hewitt’s reply brief notes that his affidavit admitted only to signing multiple employment contracts with the Rams, it was his burden to show tha t the arbitration provision was unconscionable because he did not have time to consider the provision before13 terms or ask for supporting documents during those decades, the [c]ourt is not able to turn back the hands of time and shield him from his own contractual promises.” Mr. Hewitt also argues that the take

- it

- or - leave

- it basis of the agreement makes it an adhesion contract. He concedes, however, that he did not attempt to negotiate the terms of his contract, exce pt on one occasion as to an earlier contract for which he provides no further information as to his success or failure. Mr. Hewitt’s conclusory allegation s that he was unable to alter the terms of his contract and that there was disparity in the parties’ bargaining power do not prove themselves , nor would they make the agreement unconscionable. See Vincent , 194 S.W.3d at 857 (failure to negotiate does not “prove the negative” that one could not have done so). Rather, as this Court made clear in Robinson , lack of negotiation and the adhesive nature of a contractual agreement are factors to consider in determining unconscionability, but “post

- Concepcion , a court should not invalidate an arbitration agreement in a consumer contract simply because it is cont ained in a contract of adhesion or because the parties had unequal bargaining power, as these are hallmarks of modern consumer contracts generally.” 364 S.W.3d at 515

. “Mere inequality in bargaining power

. . . is not a sufficient reason to hold that arb itration agreements are never enforceable in the employment context.” Gilmer v. Interstate/Johnson Lane Corp

. , 500 U.S. 20, 33 (1991) ; see also Brewer , 364 S.W.3d at 495 ; Smith v. Kriska , 113 S.W.3d 293, 298 (Mo. App. 2003 ). Mr. Hewitt does not allege th at he “was coerced or defrauded into agreeing to the arbitration clause,” Gilmer , 500 U.S.

being forced to sign this or the prior Rams contracts, and he failed to present any facts countering the Rams statement that it can show that many of his earlier contracts contained similar clauses.14 at 33 , particularly after decades of signing such agreements . He further offer s no other explanation of why the disparity in bargaining power should invalidate the contract in the absence of evidence that the Rams abused their power. Under the plain language of the employment contract between Mr. Hewitt and the Rams, Mr. Hewitt agreed to arbitrate his disputes against the Rams. The agreement is supported by consider ation and obligates both parties to arbitrate . Further, Mr. Hewitt does not show that the circumstances under which the contract was entered into were so unconscionable as to render the agreement invalid. Therefore, there is a valid and enforceable agreement to arbitrate.
IV. Terms of Arbitration Next, Mr. Hewitt asserts that the arbitration agreement is invalid and unenforceable because there was no mutual agreement to the essential terms of arbitration. The arbitration provision in Mr. Hewitt’s employment contract states: Hewitt agrees to abide by and to be legally bound by the Constitution and By

Laws and Rules and Regulations of the National Football League and by the decisions of the Commissioner of the National Football League, which shall be final, bind ing, conclusive and unappealable . . .. The c onstitution and b ylaws of the NFL further provide: The Commissioner shall have full, complete, and final jurisdiction and authority to arbitrate[.] . . . The Commissioner shall interpret and from time to time establish policy and procedure in respect to the provisions of the Constitution and Bylaws and any enforcement thereof. In its order compelling arbitration, the trial court found that the NFL d ispute

r esolution p rocedural g uidelines governed the arbitration procedure and that both parties were bound by the g uidelines. Mr. Hewitt acknowledges that the arbitration provision15 clearly states he will be bound by “the Constitution and By

- Laws and Rules and Regulations” of the NFL but contends he did not have sufficient information to make him aware of the full provisions of his employment contract because it does not directly mention the g uidelines or attach them. Similarly, Mr. Hewitt asserts that the reference to the

c ommissione r’s authority to interpret and establish policy does not reference the terms found in the g uidelines with any amount of specificity that would enable him to assent to these terms. Mr. Hewitt stated in his affidavit that he did not know of the existence of the
g uidelines until the Rams sought to compel him to arbitrate his age discrimination claim. A valid arbitration clause in an employment contract requires mutuality of agreement, which “implies a mutuality of assent by the parties to the terms of the c ontract. ” Abrams v. Four Seasons Lakesites/Chase Resorts, Inc. , 925 S.W.2d 932, 938 (Mo. App. 1996). Terms not explicit in a contract may be incorporated into the contract by reference. Dunn Indus. Grp. , 112 S.W.3d at 435 n.5. T he intent to in corporate must be clear. See St. Louis Union Trust Co. v. Blue , 353 S.W.2d 770, 777 (Mo. 1962). To incorporate terms from another document, t he contract must “make[] clear reference to the document and describe[] it in such terms that its identity may be ascertai ned beyond a doubt.” Intertel, Inc. v. Sedwick Claims Mgmt. Servs., Inc. , 204 S.W.3d 183, 196 (Mo. App. 2006). A. Guidelines Not Incorporated Into Contract The g uidelines were not referenced in Mr. Hewitt’s employment contract, nor were they clearly refere nced in the c onstitution and b ylaws. Mr. Hewitt’s employment contract only refers to “Rules and Regulations of the National Football League.” This reference does not identify the g uidelines in such a way that Mr. Hewitt could ascertain them beyond16 doubt. At best, under the terms of the c onstitution and b ylaws, Mr. Hewitt agreed to arbitrate by undefined terms that the c ommissioner would establish. But these terms also lack certainty; Mr. Hewitt had no way to identi f y these terms and had no way to know t hat the NFL intended the g uidelines to govern arbitration proceedings. Given the ambiguity of any terms actually referenced, Mr. Hewitt could not assent to them. Moreover, Mr. Hewitt did not bear the burden to seek out an unknown document not clearly id entified in his employment contract or the c onstitution and b ylaws . Though the
NFL and the Rams may have intended to incorporate the g uidelines into the c onstitution and b ylaws and the employment contract, respectively , it is a well

- settled rule that “[i] f ambiguous, [a contract] will be construed against the drafter.” Triarch Indus., Inc. v. Crabtree , 158 S.W.3d 772, 77 6 (Mo. banc 2005). The Rams had the burden to incorporate the terms in such a way that Mr. Hewitt could manifest his consent. Having fa iled to do so, Mr. Hewitt did not assent to the essential terms of arbitration found in the g uidelines. Though Mr. Hewitt agreed to arbitrate disputes against the Rams , the specific terms of arbitration are, therefore, unenforceable. 9
B. Arbitration Terms Implied from Statute Mr. Hewitt argues that the failure of the parties to agree to the specific terms of arbitration invalidates the arbitration clause in his employment contract. This Court has analyzed the validity of specific provisions of the ar bitration agreement independently from the validity of the overall agreement to arbitrate. See Vincent , 194 S.W.3d at 855

- 58

9 Mr. Hewitt argues that a number of the rules of arbitrat ion set out in the g uidelines are unconscionable. Because Mr. Hewitt is not bound to arbitrate under the terms in the g uidelines, this Court nee d not consider whether they are unconscionable.17 (determining first “whether the parties have entered a valid agreement to arbitrate,” then whether arbitration provisions were unc onscionable). As previously discussed, the agreement to arbitrate is valid because the plain language in his contract demonstrates that Mr. Hewitt intended to be legally bound by the constitution and bylaws of the NFL, which provided that his disputes wou ld be arbitrated

. When an arbitration agreement is valid, but specific provisions are silent or unconscionable, the failure of the terms is remedied by implying the terms from statutes within the Missouri Uniform Arbitration Act (MUAA) , section 435.350 et seq . Triarch Indu s. , 158 S.W.3d at 775 ; Vincent , 194 S.W.3d at 859

- 61. Specifically, “where an agreement is silent as to certain necessary matters concerning the arbitration, such as how arbitrators will be appointed, arbitrators’ right to exercise autho rity, notification of their award, and payment of fees and expenses, Missouri will imply such terms.” Triarch Indus. , 158 S.W.3d at 775. And when provisions in an arbitration agreement fail due to unconscionability, the court will imply the terms by stat ute. Vincent , 194 S.W.3d at 859

- 61. Consequently , the failure of the arbitration terms set out in the g uidelines does not make the agreement to arbitrate unenforceable but will require that those terms be implied by statute.
V. A ppointment of the Commissioner as Sole Arbitrator is U nconscionable Mr. Hewitt further contends the arbitration agreement is unconscionable because it designates the c ommissioner as the arbitrator of any disputes arising between Mr. Hewitt and the Rams. That provision sta tes: The Rams and Hewitt also severally and mutually promise and agree that in any dispute which may arise between them , the matter in dispute shall be referred to the Commissioner of the National Football League for decision and18 after due notice and heari ng, at which both parties may appear, the decision of said Commissioner shall be final, binding, conclusive and unappealable

. . .. The provision further states that Mr. Hewitt “agrees to abide by and to be legally bound by the Constitution and By

- Laws an d Rules and Regulations of the National Football League.” The latter documents include the following language: Jurisdiction to Resolve Disputes 8.3 The Commissioner shall have full, complete, and final jurisdiction and authority to arbitrate:

.... (B) Any dispute between any player, coach, and/or other employee of any member 10 of the League (or any combination thereof) and any member club or clubs

. . .. Mr. Hewitt argues that the c ommissioner cannot be neutral and unbiased in a dispute between an employee and a team’s management because the c ommissioner is selected and his salary determined by the team owners. 11 Section 8.1 of the c onstitution and b ylaws

states: The League shall select and employ a perso n of unquestioned integrity to serve as Commissioner of the League and shall determine the period and fix the compensation of his employment. All voting requirements and procedures for the selection of or successor to the office of Commissioner shall be d etermined by the affirmative vote of not less than two

- thirds or 18, whichever is greater, of the members of the League. The following provision, section 8.2 titled “Independence,” states , “The Commissioner shall have no financial interest, direct or indi rect, in any professional sport.”

10 Section 2.1(A) of the NFL’s c onstitution and b ylaws defines “member” as “an owner of a professional football club located in the United States.” 11 Mr. Hewitt also argues that , by extension, the hearing officers the c ommissioner is authorized by the g uidelines to designate in his place as arbitrator cannot be impartial. Because the parties are not bound by the terms in the g uidelines, this Court only considers the c ommissioner’ s neutrality as the arbitrator.19 As previously discussed, p rior to referral to arbitration , Missouri courts can evaluate unconscionability claims, including claims of actual arbitrator bias, under state law in the context of contract formation, looking at the contract or arbitration agreement as a whole to see whether the agreement to arbitrate is valid. Brewer , 364 S.W.3d at 492 n.3. A court must assess the applicability of a state law contract defense under section 2 of the FAA on a
“case

- by

- case” ba sis, rather than imposing a blanket rule. Brewer , 364 S.W.3d. at 491 ; see also id. at 492 (“The question of whether a state law unconscionability defense [is preempted by the FAA] requires analysis of the particular facts of the ca se”). A. Designation of NFL Commissioner as Arbitrator is Unconscionable Based on the facts of the present case, the terms in the contract designating the

c ommissioner, an employee of the team owners, as the sole arbitrator with unfettered
discretion to establish the rules for ar bitration are unconscionable and, therefore, unenforceable. The c onstitution and b ylaws provide that the “League” consists of the team

owners. Under t he c onstitution and b ylaws , t he l eague “shall select and employ” the

c ommissioner and set his or her ter m of employment and compensation. The c onstitution and b ylaws also provide unequivocally that the c ommissioner is employed by the l eague; i.e., the team owners. In effect , then, the c ommissioner is required to arbitrate claims against his employers.
In V incent , this Court found unconscionable a provision in an arbitration contract between a home builder and home purchasers that designated the president of a home builders association as the sole selector of the arbitrator because it found the president of the home20 builders association was “an individual in a position of bias.” 12 194 S.W.3d at 859. Like the president of the home builders associ ation in Vincent , the designated arbitrator, the

c ommissioner, is an individual in a position of bias as the arbitrator. Additionally, d ue to the lack of any terms in the employment contract or in any document incorporated into the contract, the contract appoints the c ommissioner as not only the arbitrator but as the person who controls virtually every aspect of the arbitration from establishing the rules and procedures to making the final decision. Those provisions in the arbitration agreement are unconscionable. Id

. B. Replacement for Arbitrator Provided for by Statute
T he unconscionability of the terms regarding the arbitrator does not invalidate the entire agreement to arbitrate. Vincent , 194 S.W.3d at 859

- 61. Instead, those
unconscionable terms are replaced by the relevant provisions in the MUAA. Id. The MUAA provides for substitution of a new arbitrator whe n the designated arbitrator is disqualified. Section 435.360. T his provision may be used to appoint a substitute arbitrator.
VI. Arbitration Clause Encompasses Mr. Hewitt’s Underlying Claim Against All Defendants Lastly, Mr. Hewitt makes two claims involving the enforcement of the arbitrati on agreement to compel arbitration of his underlying MRHA claim. Specifically, he asserts he did not waive a j udicial forum for his statutory claim under the MHRA and that the

12 In Vincent , the president of the home builder s association was also the president of the company that was a party to the arbitration agreement. 194 S.W.3d at 859. The Court did not base its holding on this fact, however. Rather, the Court expressly found, “Even if t he president of the Home B uilder [s] Association of Greater St. Louis was not also the president of [the company that was a party to the ar bitration agreement], this portion of the arbitration provision would b e unconscionable.” Id

.21 arbitration agreement cannot be enforced by the three named defendants who did not sign the employment contract. A. Arbitration Clause Waives a Judicial Forum for Statutory Claims Mr. Hewitt asserts he did not waive a judicial forum for his claim that he was fired in violation of the MHRA because the arbitration agreement language does not include statutory claim s . He is incorrect. Under Missouri law, “ [i] f a contract is unambiguous, the
in tent of the parties is to be discerned from the contract alone based on the plain and ordinary meaning of the language used.” Whelan Sec. Co. v. Kennebrew , 379 S.W.3d 835, 846 (Mo. banc 2012) (internal quotations omitted)

. The agreement at issue here mand ates arbitration of “any dispute which may arise” between Mr. Hewitt and the Rams. “Any dispute” plainly means any dispute, including Mr. Hewitt’s statutory claims under the MHRA. Mr. Hewitt’s efforts to characterize this language as too ambiguous to be inclusive of statutory claims are unavailing. 13

13 The primary case cited by Mr. Hewitt is a Massachusetts case that is distinguishable both on the facts and on the governing law. In Warfield v. Beth Israel Deaconess Med ical C enter

. , Inc., the Massachusetts court stated that M assachusetts law requires that an agreement to arbitrate statutory claims must be “clear and unmistakable.” 910 N.E.2d 317, 325 (Mass. 2009), abrogated on other grounds, Joule, Inc. v. Simmons , 944 N.E.2d 143, 150 n.9 (Mass. 2011). The court found the term “arising out of or in connection with [the employment agreement] or its negotiations” to be ambiguous and , ultimately , determined that the employee’s sex discrimination claim was not covered by the arbitration clause. Id. at 327

- 28. The language at issue in the instant case is distinguishable and is unambiguous. It, therefore, is enforceable under Missouri law. The other cases Mr. Hewitt cites for this proposition concern waiver requirements under collective bargaining agreements

– a separate strand of legal precedent and one not directly applicable here.22 B. Non
- signatory Defendants Can Enforce the Arbitration Agreement Against Mr. Hewitt Mr. Hewitt asserts that defendants ITB Football Company, L.L.C., the Rams Football Company, Inc., and the St. Louis Rams, L.L.C., cannot enforce the arbitration agreement against Mr. Hewitt because, of the four named defendants, only the St. Louis Rams
Par tnership was a signatory to the agreement. This Court previously has rejected enforcement of an arbitration agreement against a signatory by a non

- signatory on grounds that “arbitration is ultimately a matter of agreement between the parties.” Netco, Inc . v. Dunn , 194 S.W.3d 353, 361

- 62 (Mo. banc 2006). But Netco observed, as have the federal courts, that “a non

- signatory may, in some instances, compel a signatory to arbitrate under the theory that the plaintiff/signatory is estopped from refusing to arb itrate.” Id. at 361. Dominium Austin Partners, L.L.C. v. Emerson provides an example of a situation like the present one in which all parties are properly referred to arbitration. 248 F.3d 720 (8th Cir. 2001). In Emerson , the court stated that all part ies may arbitrate where “appellants made allegations which treat all these parties [signatories and non

- signatories] as though they were signatories to the agreements.” Id. at 728. Similarly, Smith/Enron Cogeneration Ltd. Partnership , Inc. v. Smith Cogene ration International , Inc. , held that a signatory plaintiff could not avoid enforcement whe n the plaintiff treated signatory and non

- signatory defendants as a “single unit.” 198 F.3d 88, 98 (2d Cir. 1999). See also Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 631 (2009); MS Dealer Serv. Corp. v. Franklin , 177 F.3d 942, 947 (11th Cir. 1999), abrogated on other groun ds by Escobal v. Celebration Cruise Operator, Inc. , 482 F. App’x 475 (11th Cir. 2012); CD Partners, LLC v. Grizzle , 424 F.3d 795, 798 (8th Cir. 2005).23 The principles set out in these cases apply here. Mr. Hewitt’s petition makes no differentiation between the signatory and non

- signatory defendants, referring to them collectively as “the Rams” or “Defendants” and al leging they fired him despite his contract due to age discrimination, stating, “Defendants, by their actions and failures to act , . . . discriminated against Mr. Hewitt on the basis of his age in violation of the Missouri Human Rights Act” (emphasis added) . In other words, he alleges that each is responsible for the single act of firing him due to age while he was under contract. If the other defendants (two of whom are partners in the Rams partnership) were not bound by the contract, including the
agreem ent to arbitrate, then Mr. Hewitt has failed to state any basis on which these non

signatory defendants employed him or could be liable for his firing. Mr. Hewitt cannot treat these defendants severally for arbitration purposes but jointly for all other p urposes. His claim against the defendants is a single one that should be referred in its entirety to arbitration.
VII . Permanent Writ of M andamus to Issue A. Writ of Mandamus Because Mr. Hewitt agreed to arbitrate his disputes with the Rams in his contract , the arbitration clause in Mr. Hewitt’s contract is valid , and Mr. Hewitt is legally bou nd to arbitrat e his dispute with the Rams

. Additionally, this agreement encompasses his statutory claim against all four defendants in the underlying action. Nevertheless, Mr. Hewitt did not mutually assent to the specific terms of arbitration set forth in the g uidelines, and the contract terms regarding the designation of the c ommissioner as the sole arbitrator with the power to unilaterally set the rules of a rbitration are unconscionable. Mr. Hewitt is,24 therefore, not bound to arbitrate his claims using the terms found in the g uidelines and with the c ommissioner appointed as the sole arbitrator , who establishes the rules of arbitration

. The failure of the ar bitration terms set out in the guidelines does not make the agreement to arbitrate unenforceable but will require that those terms be implied by statute. Because Mr. Hewitt should not be compelled to arbitrate his claims using the terms in the g uidelines a nd with the c ommissioner appointed as the sole arbitrator and because no adequate remedy exists on appeal, a permanent writ of mandamus should issue

. B. Directions to Trial Court This Court directs the trial court to vacate its order gra n ting the motion to compel arbitration using the arbitration terms set forth in the g uidelines and then issue a n order to compel arbitration whereby the trial court appoint s a neutral arbitrator , see section 435.360, impl ies the specific terms of arbitratio n from applicable statu t es in MUAA , see sections 435.350 to 435.470, and direct s the parties to proceed with arbitrat ion

. Russell, C.J., Breckenridge and Draper, JJ., concur; Stith, J., concurs in part and dissents in part in separate opinion filed; Teite lman, J., concurs in part and dissents in part in separate opinion filed; Fischer, J., dissents in separate opinion filed; Wilson, J., concurs in opinion of Fischer, J.; Wilson, J., dissents in separate opinion filed.

# SUPREME COURT OF MISSOURI en banc STATE EX REL. TODD HEWITT, ) ) Relator, ) ) v . ) No. SC93846 ) HONORABLE KRISTINE KERR, ) JUDGE, CIRCUIT COURT FOR ) ST. LOUIS COUNTY, MISSOURI, ) ) Respondent. )

OPINION CONCURRING IN PART AND DISSENTING IN PART I concur in the per curiam ’s holding in S ection II that a writ of mandamus is the appropriate mechanism to review whether the trial court erred in sustaining the motion to compel arbitration , and with its holding in Section III that the arbitration agreement is valid

. I dissent from the per curiam’s holding in Section V.A. that the N ational F ootball
L eague (NFL) c ommissioner is presumptivel y biased and in Section IV.A. that the NFL
D ispute R esolution G uidelines have not been agreed to by the parties

. But I concur in the per curiam’s holding in Section IV.B. and V.B. that where , as here , a majority holds that the arbitrator is disqualified a nd that the parties have not agreed on the terms governing arbitration, the Missouri Uniform Arbitration Act (MUAA), §§ 435.350 to 435.470, RSMo 2000 , provides mechanisms for appointing a substitute arbitrator and for providing2 substitute terms governing a rbitration . Accordingly, I concur in the per curiam’s holding in Section VII.B.
I. A WRIT OF MANDAMUS IS THE APPROPRIATE PROCEDURE Addressing first the issue of whether the writ petition is properly considered by this Court now, I reject Judge Fischer’s arg ument in his dissenting opinion that a writ of mandamus should not be used to consider the propriety of granting a motion to compel arbitration. In Lawrence v. Beverly Manor, 273 S.W.3d 525, 529 (Mo. banc 2009) , this
Court expressly h e ld that a party cannot be forced to arbitrate a dispute in the absence of a valid agreement to do so . This Court also recently has reaffirmed that it is the trial court, not the arbitrator, that determine s whether the parties have signed a valid agreement to arbitrate

. Brewer v. Missouri Title Loans , 364 S.W.3d 486, 492 (Mo. banc 2012). These cases make clear the inadequacy of the dissent’s proposition that a case should be sent to arbitration first , and only after the fact should the courts review whether the agreemen t to arbitrate was valid. Th at is the proverbial putting of the cart before the horse. If there was no agreement to arbitrate, then requiring a party to go through arbitration before trying the case would deny that party his or her recognized right to tr y the case before the courts

. 1

1 Arguably it also would violate the o pen c ourts provision of article I, section 14 of Missouri’s constitution . A valid arbitration clause does not violate that guarantee because it is contractually agreed to and because suit may be filed prior to the arbitration. See State ex rel. Cardinal Glennon Mem’l Hosp. for Children v. Gaertner , 583 S.W.2d 107 , 110 (Mo. b anc 1979). But, whe n there is no agreement to arbitrate , compelling the plaintiff first to go through arbitration could well be considered to be an arbitrary precondition to trying his or her case in the courts, in violation of the o pen c ourts provision.3 II. NFL COMMISSIONER SHOULD NOT BE FOUND PRESUMPTIVELY BIASED AND NFL DISPUTE RESOLUTION GUIDELINES ARE PROPER I disagree with the per curiam ’s holdings in S ections IV.A. and V.A. that the NFL guidelines have not been agreed to by the parties as governing the arbitration here and that the NFL commissioner should be disqualified as an arbitrator. Accordingly, I believe that the better course would be to direct the trial judge simply to r efer this matter for arbitration under the contract as written. But I agree with the per curiam’s holding in Sections IV.B. and V.B. that if the chosen arbitrator is disqualified, or if the terms governing the arbitration are not set out in the agreement to arbitrate, then the missing terms can be supplied by the MUAA and, pursuant to the MUAA, another arbitrator may be appointed. See §§ 435.350 to 435.470 ; State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 861 (Mo. banc 2006). Therefore, because a majo rity of the C ourt determines that the arbitrator should be disqualified and that the NFL guidelines do not govern the arbitration, I concur in the per curiam’s holding in Section VII.B. that a writ should issue on the terms set out in the majority opinion.
A. The NFL Commissioner S hould not be Disqualified in Advance of Arbitration The per curi a m holds in Section V.A. that the NFL c ommissioner is an employee of the various NFL teams and that , as a result , he inherently is not neutral and cannot

serve as an unbiased arbitrator in a dispute between an employee and an NFL team. The per curiam is the first and only decision in the entire country to so hold based simply on the fact that the NFL c ommissioner is, well, the NFL c ommissioner. The F ederal A rbitratio n A ct (FAA) does not contain a provision a uthorizing4 advance disqualification of an arbitrator for inherent bias

. The FAA instead provides for judicial vacation of an arbitration award “where there was evident partiality or corruption in the arbitrators.” 9 U.S.C. § 10(a)(2). The MUAA similarly provides that “the court shall vacate an award where: ... There was evident partiality by an arbi trator appointed as
a neutral

.... ” § 435.405.1(2). These provisions by their nature require that the arbitration occu r first, and review for evident bias or partiality occur later in court. They entitle Mr. Hewitt to seek judicial review of any arbitration award if he believes the

c ommissioner or his designee shows evident bias or partiality in considering his employment discrimination claim. This review is adequate to protect the parties to an arbitration in all but cases in which actual bias or an actual conflict of interest is shown before the fact. For the same reasons that I would not wait until after arbitration to determine whether the parties have agreed to arbitration, I agree with the per curiam that it would be pointless to wait until after arbitration to disqualify an arbitrator who was shown to be actually biased or to have an a ctual conflict of interest. Actual bias or an actual conflict inevitably would result in voiding of the result of the arbitration, and delaying that determination would be pointless. Here, however, Mr. Hewitt concedes that he has not alleged or shown actual bias, and no evidence of actual bias was presented. Instead , he asks that this Court simply assume that no NFL commissioner could be unbiased and to disqualify the NFL5 commissioner under the common law bar on unconscionability

. 2 The per curiam acc epts Mr. Hewitt’s invitation to so hold. I believe this is error. A comparison of the facts of this case to those in the case relied on by the per curiam, Vincent , provides a good example of why disqualification in advance is not required here. In Vincen t, the p resident of a home building company who also was
pres ident of the local home builder s ’ association was designated as the sole selector of the arbitrator in a ny dispute between a home builder and a home purchaser. This Court found an actual conflic t of interest and , therefore , inherent bias on those facts because , as the president of the home builders ’ association , he was “an individual in a position of bias.” Id. at 859

. The per curiam says that the NFL c ommissioner similarly is an individual in a position of bias because he is an “employee” of the NFL teams. That analogy is too simplistic. The person who selected the arbitrator in Vincent was the president of a home builder s ’ association . The person selected as arbitrator under the arbitration clause at issue here is no t the president of the Rams , however , or of any other NFL team. He is the
NFL c ommissioner. Not only is the NFL c ommissioner not the owner of the Rams or another NFL team, t he NFL commissioner does not exclusively represent the interests of

2 While the ultimate issue simply is whether a contract or a term of the contract is unconscionable, in making this determination Missouri courts examine both the procedural aspects of contract formation and the substantive provisions of the contract. “Pr ocedural unconscionability deals with the formalities of making the contract, while substantive unconscionability deals with the terms of the contract itself.” Vincent, 194 S.W.3d at 858 (noting further that “[p]rocedural unconscionability focuses on such things as high pressure sales tactics, unreadable fine print, or misrepresentation among other unfair issues in the contract formation process” while “[s]ubstantive unconscionability means an undue harshness in the contract terms”).6 the team owners. He is hired and employed by the NFL , not by the owners individually or collectively. Unlike the president of an association made up of and representing only home builders, here the NFL c ommissioner is required by the NFL rules to be “ a person of unquestioned integrity , ” and section 8.2 of the NFL constitution requires that the commissioner “shall have no financial interest, direct or indirect, in any professional sport.” Further , the NFL c ommi s sioner is required to serve as arbitrator between NFL teams as well as between employees and between NFL owners and their players or other employees . This specifically includes disputes in which the NFL c ommis s ioner is required to take a position adverse to one or more owners, such as in disputes among two or more owners of the same team or among the owners of different teams. NFL Const. § 8.3

. Neither the owner of the Rams nor the owner of any other team can have the NFL
commissioner fired for not coming to the decision the owne r wished. Two

- thirds of the members of the NFL must vote to fire the commissioner and select a successor. NFL Const. § 8.1

. The NFL c ommissioner’s position , therefore , is far more removed from the Rams and their ownership than was the home builders’ association president who was to select the arbitrator in Vincent. Moreover, unlike in Vincent , this Court has before it examples of prior cases in which the NFL c ommissioner has been selected as arbitrator, and in none has he been found to be inherently biased. In fact, in each case in which his disqualification has been sought solely on the basis of his position as NFL commissioner,7 that request for disqualification has been denied

– until now. 3 Actual bias or a conflict of interest always has been r equired. 4
Mr. Hewitt concede s in his brief and at argument that the NFL c ommissioner might be able to be fair as to players or others with superior bargaining power personally or by dint of their union membership. But, Mr. Hewitt sa ys , because he does n ot have the benefit of such resources, bias should be presumed for him and other non

- player, non

union employees. There are at least two problems with this argument. First, the existence or absence of inherent bias is a separate question from that of an e mployee’s bargaining power;

3 The persuasivenes s of Mr. Hewitt’s citation to Dryer v. Los Angeles Rams Football Co., Inc., 198 Cal. Rptr. 497 (Cal. Ct. App. 1984) , is limited by the fact that it was vacated by the California Supreme Court in Dryer v. Los Angeles Rams, 709 P.2d 826 (Cal. 1985) , and is o f no precedential value. Mr. Hewitt attempts to resuscitate the court of appeals’ decision by suggesting that the case was vacated on other grounds (i.e., if the c ommissioner actually had been designated to arbitrate Dryer’s dispute, rather than being nam ed only as the potential arbitrator in a narrow set of circumstances that did not arise in Dryer’s case, the high court would have found the agreement unconscionable), but the California Supreme Court’s opinion does not so state. Rather, it vacated the lo wer court’s decision, in part, because it “invalidated an entire arbitration procedure because of a purely speculative possibility that the commissioner might have the power, at some point, to withdraw the dispute from the normal arbitration process,” and it declined to take a position on the validity of the arbitration agreement had a different set of facts been before it. 709 P.2d at 833 (emphasis added)

. The fact that the California court was unwilling to set aside an arbitration agreement whe n the att ack on the agreement was based on speculation rather than evidence does more to undermine Mr. Hewitt’s argument than to support it. 4 Morris v. New York Football Giants, Inc., 575 N.Y.S.2d 1013, 1016

- 17 (N.Y. Sup. Ct. 1991) , held that the then

- c ommissioner was deprived of “the necessary neutrality to arbitrate these claims” because he had previously served as chief outside counsel for the NFL and its members and, in that capacity in a prior case, had advocated a position directly at odds with tha t advanced by the players in the dispute at issue. Again, the court’s decision was based on evidence of actual bias. It bears repeating that Mr. Hewitt has to this point offered no evidence of actual bias here.8 while bargaining power may help keep existing bias in check, the arbitrator is either inherently biased or he is not. No case cited supports the adoption of the two

- tiered bias analysis Mr. Hewitt proposes . Second, even were the Court to agree that a two

- tiered approach might be proper whe n a plaintiff showed that arbitrators of the type designated had shown bias in the past as to the group of employees of which the plaintiff was a part, it would be a factual question , and the re was no such showing here. Mr. Hewitt has offered only speculation. Mr. Hewitt cites no evidence of th e current NFL c ommissioner’s bias against employees and cites no legal authority for his claim that this or any other sports commissioner is inherently biased or has exhibited bias based solely on the c ommissioner’s position as commissioner. I reject a presumption of bias.
I find m uch more persuasive the c ases from other jurisdictions that have specifically rejected similar pre

- award claims of potential bias on the part of an NFL

c ommissioner. In Alexander v. Minnesota Vikings Football Club LLC, 649 N.W.2d 464, 467 (Minn. Ct. App. 2002) , the Minnesota cour t of appeals declined to find the

c ommissioner to be a biased arbitrator prior to the issuance of an arbitration award, observing at the outset that “the FAA does not expressly provide for the pre

- award removal of an arbitrator.” Alexander adopted the Sec ond Circuit’s reasoning in Aviall, Inc. v. Ryder Sys., Inc., 110 F.3d 892, 895, 896 (2d Cir. 1997) , which, in interpreting the FAA, stated that “an agreement to arbitrate before a particular arbitrator may not be disturbed, unless the agreement is subject to attack under general contract principles,” such as whe n “the arbitrator’s relationship to one party was undisclosed, or unanticipated9 and unintended, thereby invalidating the contract.” Whe n a party agreeing to arbitration is fully aware at the time o f contract formation of the identity of the arbitrator and his relationship with the other party (as Mr. Hewitt was fully aware through the current contract and from many earlier contracts
that the NFL c ommissioner would serve as arbitrator of any disput e arising between him and the Rams), Aviall determined he can “hardly object” to the enforcement of the arbitration agreement “according to its terms.” Id. at 896 ; see also Hojnowski v. Buffalo Bills, Inc., 995 F. Supp. 2d 232, 239 (W.D.N.Y. 2014) (also r elying on Aviall to compel arbitration over objections that the NFL c ommissioner’s inherent bias rendered the arbitration agreement unconscionable). As noted above, to enforce the arbitration agreement as written would not leave Mr. Hewitt without a remedy . Mr. Hewitt has an adequate mechanism for judicial review of the result of the arbitration and may be afforded relief under the FAA and MUAA should the arbitrator show evident bias. See 9 U.S.C. § 10(a)(2) ; § 435.405.1(2).
B. NFL Dispute Resolution Guidelines I also disagree with the per curiam’s holding in S ection IV.A. that the arbitration agreement fails to incorporate or adequately identify the essential terms of arbitration. The arbitration provision in Mr. Hewitt’s employment contract states: Hewitt agrees to abide by and to be legally bound by the Constitution and By

- Laws and Rules and Regulations of the National Football League and by the decisions of the Commissioner of the National Football League, which shall be final, binding, conclusive and unappealable

... . ( E mphasis added.) The p er curiam contends that , because this provision does not directly10 mention the NFL Dispute Resolution Procedural Guidelines or incorporate them by reference or attach them, Mr. Hewitt did not have sufficient information to make him aware of the full provisions of his employment contract. The per curiam cites not a single case holding that an agreement to arbitrate must include or attach a copy of the arbitration rules to be a valid and complete agreement to arbitrate. Indeed , it would be the rare employment contract or business contract that attached arbitration rules to the agreement itself. This is not to say that an agreement need not set out any information as to what rules wil l govern arbitration, but only that those rules need not be set out in the contract itself. Reference to the appropriate rules is adequate.
In Metro Demolition & Excavating Co. v. H.B.D. Contracting, Inc., 37 S.W.3d 843 (Mo. App. 2001) , and Jim Carlson Construction, Inc. v. Bailey, 769 S.W.2d 480 (Mo. App. 1989) , the agreements did not themselves contain the arbitration procedures but instead referred to another contract or standard source where they could be ascertained or
to an other contract that inco rporated by reference the arbitration procedures. This incorporating by reference a document that in turn incorporated the terms by reference was held to be adequate. Metro Demolition, 37 S.W.3d at 847 ; Jim Carlson Constr., 769 S.W.2d at 481 . That is wh at occurred here; the contract incorporated the NFL Constitution and B ylaws, pursuant to which the guidelines were adopted.
It was on a similar basis that t he United States District Court for the Western District of New York rejected a similar argument in Hojnowski

. 995 F. Supp. 2d at 236

- 38. In that case , another former equipment manager for another NFL team challenged the11 arbitration provision of his employment contract when he sued for age discrimination. Hojnowski’s employment contract included a si milarly worded arbitration agreement , and he was not provided with a copy of the g uidelines. Id. at 235. Like Mr. Hewitt, Hojnowski claimed that this rendered the arbitration agreement invalid for lack of mutual assent to essential terms. Id. at 236

- 37

. Hojnowski rejected the argument that the validity of an arbitration agreement requires that the parties be provided with copies of the arbitration rules or that the particular set of rules must be expressly identified in the agreement, noting no case ha d been cited requiring that the parties be given a copy of the relevant rules when they were otherwise accessible. 5 Id. at 237

. Rather, the federal court found: [B]ecause Hojnowski was fully aware any dispute would be arbitrated before the NFL Commissioner, and because that tribunal clearly had an established set of rules governing arbitration procedure, those rules (which Hojnowski does not argue were inaccessible) were sufficiently incorporated into the agreement and knowledge thereof can be i mputed to Hojnowski. Id. at 237

- 38

. See also Canterbury v. Parsons Constructors, Inc., No. 08

- 0104

- CV

- W

HFS, 2009 WL 899661, at *2 (W.D. Mo. Mar. 27, 2009) (unreported) (“[T]he omission of further details about the [arbitration] program is not fatal. The briefing offers no case law establishing such a defense to arbitration”). This reasoning is directly applicable here

. T he arbitration rules are contained in a document titled Dispute Resolution Guidelines prepared pursuant to the authority granted

5 I agree with the Hojnowski court’s admoni shment that it is “prudent to explicitly refer to, or even include in the contract itself the specific rules that would govern any arbitration proceeding.” 995 F. Supp. 2d at 238. Under the facts and circumstances of the present case, however, the refere nce was legally not inadequate.12 t he c ommissioner by the NFL Constitution and By l aws and used in all NFL arbitrations. The per curiam seems to hold that , because the guidelines themselves were not specifically referenced, Mr. Hewitt was unable to determine what rules governed and in fact no rules applied. But this just is not the case. The contract says that the parties will be bound by the NFL Constitution and Bylaws, the guidelines were adopted pursuant to the NFL c ommissioner’s authority under th e constitution and bylaws, and no prior case has expressed any confusion as to what these guidelines are. Mr. Hewitt has not done so either. Mr. Hewitt does not claim that he thought a different set of rules were being referred to or which would govern

. This is not a case in which a signatory to an agreement asked to see what rules governed or was misled into believing that the arbitration would be governe d by some rules other than the g uidelines. This case is about Mr. Hewitt and whether he was unable to determin e what rules governed the arbitration , not about how arbitration agreements could best be drafted. It made no difference to his conduct that the contract specifically mentioned the NFL

“ Constitution and By

- laws and R ules and R egulations ” without specifica lly referring to the guidelines themselves. Mr. Hewitt never inquired about what arbitration rules governed or indicated he did not know where they could be found. Mr. Hewitt agreed to arbitration under the NFL rules, and the only place that the NFL sets out the rules
go verning arbitration are in the g uidelines adopted under the rules. The only reason Mr. Hewitt may not have known what the g uidelines said or where they were, despite having signed a similar contract with similar terms for up to 40
years, is due not to an indefiniteness of the contract but to his own unique lack of13 curiosity. To quote from the trial judge’s opinion below: Mr. Hewitt, by his own admission, signed either this employment contract, or contracts substantially similar to it, for forty years. This contract clearly references the “Constitution and By

- laws and Rules and Regulations of the National Football League.” If Mr. Hewitt did not read his contract, inquire about its terms or ask for supporting documents during those decades, the [c]ourt is not able to turn back the hands of time and shield him from his own contractual promises. The trial court there by held that , as a matter of fact , Mr. Hewitt had sufficient opportunity to determine the rules but chose not to do so

. Consequently, he is bound by them. The trial court’s ruling is consistent with that in Ludwig v. Equitable Life Assurance Soc’y of U.S., 978 F. Supp. 1379, 1382 (D. Kan. 1997) , which rejected a former employee’s very similar claim that an arbitration agr eement was not enforceable because she did not receive a copy of the governing c ode when she signed the agreement. Ludwig noted that the employee did not claim she was denied a copy of the c ode, the arbitration agreement made clear all disputes were subje ct to arbitration, and the court could solve any ambiguities by construing the arbitration provision liberally to effectuate its purpose. Therefore, the rules were sufficiently definite for the arbitration to proceed. Id. Similarly, here, the rules are sufficiently specific and ascertainable to govern the arbitration. In fact, because the trial court referred this matter to arbitration, the parties have been preparing for the arbitration through discovery and otherwise und er the very guidelines that the per curiam says are too unknowable to govern. The per curiam’s hypothetical and speculative concern about a potential for confusion , therefore , should have no application here, and does not make this arbitration contract un conscionable or14 require substitution of arbitration rules under the MUAA

. For all of these reasons, I would affirm the trial court’s referral of this matter to arbitration. But, b ecause a majority holds that the arbitrator is disqualified and that the NFL guidelines do not provide the terms governing the arbitration

— points with which I disagre e for the reasons noted above

— I agree with the per curiam’s holding in Section
VII.B. Accordingly, I agree to the issuance of a permanent writ as set out by the ma jority opinion.

_________________________________ L AURA D ENVIR S TITH , J UDGE

# SUPREME COURT OF MISSOURI en banc

STATE EX REL. TODD HEWITT, ) ) Relator, ) ) vs. ) ) No. SC93846 HONORABLE KRISTINE KERR, ) JUDGE, CIRCUIT COURT FOR ) ST. LOUIS COUNTY, MISSOURI, ) ) Respondent. )
OPINION CONCU RRING IN PART AND DISSENTING IN PART I concur with the per curiam opinion to the extent it holds that mandamus is an appropriate remedy, that the NFL d ispute r esolution g uidelines were not incorporated into Hewitt’s contract , and that designating the NFL c ommissioner as the arbitrator is unconscionable. I res pectfully dissent from the per curiam opinion to the extent it holds that H ewitt should be compelled to arbitrate the underlying dispute. The per curiam opinion holds that the arbitration agreement is enforceable even though the essential terms of the alleged agreement as set forth in the NFL d ispute r esolution g uidelines ( g uidelines) were never incorporated i nto Hewitt’s employment contract. The net result is that Hewitt is forced to arbitrate eve n though the bedrock necessity of an enforceable

contract

– mutual agreement to the essential terms

– is absent in this case. This Court2 should issue a writ of mandamus to prevent the trial court from compelling arbitration pursuant to an unenforceable arb i tration agreement. Hewitt’s employment contract provides that any dispute between Hewitt and the
Ra ms shall be decided by the NFL c ommissioner, whose decisions are “final, binding, conclusive, and unappealable.” The contract further provides that Hewi tt is “legally bound by the Constitution and By

- Laws, and Rules and Reg ulations” of the NFL. The
NFL c onstitution and byl aws provide generally that the c ommissioner “shall have full, complete and final jurisdiction and authority to arbitrate” disputes bet ween Hewitt and the Rams. The c onstitution and bylaws further provide that the c ommissioner shall establish procedures “in re spect to the provisions of the c onstitution and bylaws and any enforcement thereof.” Accordingly , Hewitt’s contract provides that the c ommissioner will decide any dispute Hewitt has with the Rams and expressly incorporates by reference the arbitration provision in the NFL c onstitution and bylaws

. There is no reference to or incorporation of the g uidelines or any other specific arb itration provisions. I agree with the per curiam opinion to the extent it holds that the g uidelines are not incorporated into the contract. The per curiam opinion errs, however, by treating the failure to incorporat e t he
g uidelines as a mere gap in the a greement that can be filled by statutorily established default arbitration rules. Default arbitration rules presuppose the existence of an enforceable contract arising from assent to the essential terms of the contract . These rules do not impose contract ual obligations where none exist

.3 Missouri law requires that an enforceable contract include the essential terms that the parties agreed to. Olson v. Curators of Univ. of M issouri , 381 S.W.3d 406, 411

- 12 (Mo. App. 2012); see also Dayton v. Travelers' Ins. Co

. , 259 S.W. 448, 450

- 451 (Mo. 1924) (no enforceable life insurance contract where the alleged insured filled out an insurance application and discussed coverage with the insurance broker but “ [t] here was no evidence whatever that the [policy] ever c ame into [the insured’s] hands” to show a meeting of minds on the essential terms of the alleged insurance contract). T he essential

terms of a contract include the identit y of the parties, the subject matter of the contract, the price, the consideration, and the promises on both sides. See Doss & Harper Stone
Co. v. Hoover Bros. Farms , 191 S.W.3d 59, 62 (Mo. App. 2006); Johnson v. Cook , 167 S.W.3d 258, 262 (Mo. App. 2005); Ahrens v. Dodd , 863 S.W.2d 611, 613 (Mo. App. 1992)

. The United States Supreme Court has made it clear that the FAA preserves “generally applic able contract defenses” but pre empts “ defenses that apply only to arbitration or that derive meaning from the fact that an agreement to arbitrate is at issue.” AT&T Mobility, LLC v. Concepci on , 131 S. Ct. 1740, 1746 (2011). The idea behind this provision is to lessen perceived judicial hostility toward arbitration and to place arbitration contracts on equal footing with any other contract. Robinson v. Title Lenders,
Inc

. , 364 S.W.3d 505, 51 2 (Mo. banc 2012) (citing Concepcion , 131 S.Ct. at 1745)). The elimination of perceived judicial hostility toward arbitration does not require unbridled judicial enthusiasm for arbitration. Instead, all that is required is neutrality. A rbitration
agree ments are placed on equal footing with all other contracts for the simple reason that4 arbitration agreements are contracts. Analyzing this case from an arbitration

- neutral viewpoint leads to the conclusion that generally applicable principles of Missouri contract law demonstrate the lack of an enforceable arbitration contract in this case. Although Missouri law predicates the enforceability of a contract on mutual assent to the essential terms, Hewitt’s contract with the Rams includes not one single ess ential term of the alleged arbitration agreement. While the contract provides that the NFL

c ommissioner would arbitrate any dispute, this provision is, as the per curiam opinion holds, unconscionable and unenforceable. What is left then, is literally not hing more than an agreement to “arbitrate” with absolutely no further indication of how, when or under what circumstances any arbitration would be conducted. This alleged arbitration agreement is as unenforceable as a “contract” in which A agrees to “pay” B some undefined sum of money for some undefined reason. If the Rams, a sophisticated multi

million dollar franchise in a multi

- billion dollar league, wanted to ensure an unquestionably valid arbitration agreement, the g uidelines could have simply been
i ncluded or, in five words or less, expressly referenced and incorporated into Hewitt’s employment contract. Hewitt’s contract does not establish mutual assent to the essential terms of an arbitration process . Instead, the contract and incorporated docu ments provide only that Hewitt is required to arbitrate disputes pursuant to unknown and undisclosed terms that the c ommissioner, in his or her sole discretion, deems appropriate. The re i s no agreement to the essential terms of arbitration. For these rea sons, I would hold that the circuit court5 abused its discretion by compelling arbitration because there is no enforceable arbitration agreement.

______________________________________ Richard B. Teitelman, Judge

# SUPREME COURT OF MISSOURI en banc
STATE EX REL. TODD HEWITT, ) ) Relator , ) ) v. ) No. SC93846 ) HONORABLE KRISTINE KERR, JUDGE, ) CIRCUIT COURT FOR ST. LOUIS ) COUNTY, MISSOURI. ) ) Respondent. )
DISSENTING OPINION Introduction This Court's power to iss ue remedial writs derives from article V, s ection 4.1 of the Missouri Constitution. State ex rel. Dir. o f Revenue v. Mobley , 49 S.W.3d 178, 179 (Mo. banc 2001). A writ of mandamus may issue under very limited circumstances as it

" is a hard and fast unreasoning writ , and is reserved for extraordinary emergencies. " Norval v. Whitesell , 605 S.W.2d 789, 791 (Mo. banc 1980).
A court should issue a writ of mandamus only if the relator has demonstrated a clear, unequivocal, and specific right to have the respondent take action. State ex rel.
M issouri Growth Ass'n v. State Tax Comm'n , 998 S.W.2d 786, 788 (Mo. banc 1999). I

w ould not issue a writ of mandamus in this case because Todd Hewitt has an adequa te remedy by appeal following arbitration

. See Rule 84.22(a); State ex rel. Reser v. Martin ,2 576 S.W.2d 289, 290

- 91 (Mo. banc 1978). I strongly disagree with the p er curia m opinion 's sidestepping of the statutory right of appeal and issu ance of a writ of mandamus in this case , claiming "m andamus is an appropriate remedy whe n alternative remedies waste judicial resources or result in a burdensome delay, creating irreparable harm to the parties. " Slip op. at 7. That justification/rationalization is untena ble in a case like this , in which the timeline 1 alone demonstrates that the resolution of contract law issues in
response to the motion to compel arbitration under the guise of saving judicial resources

or avoiding delay is just the wrong decision.
F acts and Procedural History Hewitt sued the St. Louis Rams for age discrimination under the Missouri Human Rights Act (MH RA). The Rams filed a motion to stay the proceedings , or in the alternative to dismiss, and to submit the case to arbitration . The ci rcuit court stayed the proceedings and su bmitted the case to arbitration. Hewitt then filed a motion to amend the circuit cou rt's order, ask ing for dismissal so he could immediately appeal. T he circuit court sustained the motion and dismissed the case

. The court of appeals reversed the dismissal and reinstated the prior stay order. See Hewitt v. St. Louis Rams P 'ship , 409

1 Writ petition filed in the court of appeals: September 26, 2013 Preliminary order issued by the court of appeals : September 30, 2013 Answer and suggestions in opposi tion filed: October 9, 2013 Reply suggestions filed: October 11, 2013 Case submitted: October 15, 2013 Writ quashed by opinion

– court of appeals : October 22, 2013 Transfer to this Court ordered : February 25, 2014 Relator's subst itute brief filed: March 17, 2014 Respondent's substitute brief filed : April 14, 2014 Relator's substitute reply brief filed (pursuant to time extension): May 9, 2014 Argued and submitted: May 21, 2014 Opinion granting writ requiring arbit ration by this Court : April 28, 20153 S.W.3d 572, 574 (Mo. App. 2013). It held that the proper procedure when compelling arbitration is to stay the court proceedings, not to dismiss the case , because § 435. 3 55 .4 2 requires that actions involving an issue subject to arbitration "shall be stayed. " Id.
An order staying court proceedings and submitting a case to arbitration i s not a final judgment. Therefore, H ewitt ha s no right to appeal at this stage of the proceedings

. "The right to appeal is purely statutory . . . ." Buemi v. Kerckhoff , 359 S.W.3d 16, 20 (Mo. banc 2011) (internal quotation marks omitted). Generally, an appeal is available only from a final judgment. See § 512.020 (5) , RSMo Supp. 2013. There is an exception for those seeking to enforce arbitration agreements but not for those opposing arbitration. If a circuit court refuses to allow arbitration, an appeal is immediately available (this is known as an "interlocutory" appeal because issues remain unresolved.). See § 435.440.1(1)

- (2). On the other hand, the statute provides no interlocutory appeal from a circuit court's order submitting a case to arbitration. State ex rel. MCS Bldg. Co. v. KKM Med. , 896 S.W.2d 51, 53 (Mo. App. 1995). If a circuit court submits a case to arbitration, that ruling stands until the end of the circuit court proceedings. Awaiting the end of the circuit court proceedings to appeal its rulings is the norm al procedure, not the exception. Hewitt attempted to avoid the delay of an appeal and filed a petition for an extraordinary writ. The court of appeals issued a preliminary order in
mandamus (no preliminary writ of prohibition was issued) and issued an op inion quashing the writ . T hereafter , this Court granted transfer. When the court of appeals issues an opinion in a writ case, and thereafter this Court grants transfer, this Court treats

2 Statutory citations are to RSMo 2000 except where otherwise indicated.4 the case as if the writ petition were filed originally in this Cour t

. See State ex rel. Newport v. Wiesman , 627 S.W.2d 874, 874

- 75 , 880 (Mo. banc 1982) ( deciding a mandamus case filed originally in the court of appeals , following transfer ); State ex rel. Adrian Bank v. Luten , 488 S.W.2d 636, 637 (Mo. banc 1973) ( stating that the Court would treat a prohibition case as if the writ petition were filed originally in this C ourt, following transfer ), overruled on other grounds by State ex rel. Farmers Ins. Co. v. Murphy , 518 S.W.2d 655, 664 (Mo. banc 1975). Standard Required t o Issue a Writ of Mandamus This Court set out the standard for mandamus in State ex rel. Missouri Growth
Association : Mandamus is a discretionary writ, and there is no right to have the writ issued. Mandamus will lie only when there is a clear, unequivoca l, specific right to be enforced. The purpose of the writ is to execute, not adjudicate. Mandamus is only appropriate to require the performance of a ministerial act. Conversely, mandamus cannot be used to control the judgment or discretion of a public official. 998 S.W.2d at 788 (emphasis added) ( citations and internal quotation marks omitted) (reversing the issuance of a writ of mandamus). When the law gives the respondent discretion, mandamus is inappropriate regardless of whether that discretion is abused. See id. at 788

- 89

. In addition, it has long been settled that "[b]efore mandamus will lie, something more is required than the likelihood that the alternative remedies may involve inconvenient delay. " State ex rel. Kelley v. Mitchell , 595 S.W.2 d 261, 268 (Mo. banc 1980). As the Court stated in State ex rel. Kelley , quoting State ex rel. Phelan v. Englemann , 86 Mo. 551, 561

- 62 (1885):5 Mandamus is not the proper remedy in this case. It is among the fundamentals of the law relating to the issuance of such a writ that it will not be awarded but as an extraordinary remedy, only issuing when the law, in the ordinary methods of its procedure, is powerless to grant relief. It results from this principle that relief will not be granted an aggrieved party in this unusual way, where he may attain the same result by invoking another adequate legal remedy. In all such cases the courts uniformly refuse to exercise their extraordinary jurisdiction in behalf of a party who, in such a situation, seeks it. . . . And the principle announced in respect to refusing the writ of mandamus is not affected, nor the case changed because the appropriate remedy may involve inconvenient delay, or operate harshly or oppressively on the party complaining . . . . Id. (omissions in original). I n my view , this Court should adhere to its precedent and not issue the extraordinary writ of mandamus when adequate relief may be had by alternative

means. Id. at 269. T he nature of the mandamus remedy itself counsels in favor of restrai nt. Further more , m andamus issues only for the relief requested and should not be used to fashion a new remedy not already clearly established. See State ex rel. Corcoran v. Carnahan , 669 S.W.2d 548 (Mo. banc 1984). "[T]he rule is well settled that

... he who seeks mandamus must specify just what he wants, nothing more or less. Thus, unless we can grant the relief sought, we can grant no relief." State ex rel. Hart v. City of
St. Louis , 204 S.W.2d 234, 240 (Mo. banc 1947) ( citations and internal quotation marks

o mitted ) ; see also State ex rel. State Highway Comm'n v. Allison , 296 S.W.2d 104, 111

- 12 (Mo. banc 1956) (acknowledging that the prayer for relief in a mandamus petition binds the Court's grant of relief). Hewitt has convinced those members of th is Court who join in the per curiam opinion to sidestep the requirement of a final judgment. While Hewitt succeeded in baiting the Court to review his contract claims by filing a petition for an extraordinary6 writ of mandamus to prohibit arbitrati o n of hi s claims, he failed to obtain the relief he sought : not to arbitrate at all . As a result of the per curiam opinion , he will be forced to arbitrate pursuant to terms neither party requested or anticipated. 3 It defies logic that this Court should use an ex traordinary writ to instruct the circuit court to impose a remedy that Hewitt may not have even wanted and that he certainly did not request

. Although this Court has incorrectly stated and applied the standard for when an appellate court should issue a wri t of mandamus, this Court need not perpetuate the error. The principal opinion relies solely on State ex rel. Vincent v. Schneider , 194 S.W.3d 853, 855 (Mo. banc 2006), for authority to conduct a merit s review of the legal issues presented in this case, w hich are nothing more than issues of contract law and statutory interpretation. The principal opinion states , "This Court recognized , in State ex rel. Vincent v. Schneider , that a writ of mandamus is an appropriate mechanism to review whether a motion to compel arbitration was improperly sustained ." Slip op. at 5. There are two major mistakes in relying on State ex rel. Vincent as authority for that proposition. First, not one sentence in State ex rel. Vincent even discusses or analyzes whether a writ o f mandamus is "an appropriate mechanism" to review an order sustaining or overruling a motion to compel arbitration. State ex rel. Vincent v. Schneider did not overrule sub silentio all of this Court's opinions regarding what is required for this Court

3 Although I disagree with both the per curiam opinion and with Judge Stith that the Court should decide this writ case as if it were an ordin ary appeal, if the record in this case is to be reviewed as an appeal, I would agree with Judge Stith's determination that the record supports that the parties agree to arbitrate pursuant to the NFL guidelines , which at least gives proper deference to the circuit court ' s credibility determinations and its factual findings of the merits. The circuit court's conclusions that the arbitration agreement is not unconscionable and must be enforced according to its terms as written is supported by this record.7 to issue a writ of mandamus. It is basic American jurisprudence that issues not analyzed or discussed in an opinion provide no precedential value. " Sub silentio is defined as 'without notice being taken or without making a particular point of the matter in question.'" Badahman v. Catering St. Louis , 395 S.W.3d 29, 37 n.10 (Mo. banc 2013) ("'If the majority chooses to overrule [a case] it is far preferable to do so by the front door of reason rather than the amorphous back door of sub silentio .'") (alterat ion in original); see also State v. Honeycutt , 421 S.W.3d 410, 422 (Mo. banc 2013) ("[T]he implicit nature of a sub silentio holding has no stare decisis effect and is not binding on future decisions of this Court."). Second, there is no question that the constitution provides that the circuit court has jurisdiction to rule on a motion to compel arbitration and that the remedy provided by the legislature to review the circuit court's ruling, whether it sustains or overrules the motion to compel arbitrat ion, is by appeal. Because the legislature has provided for an adequate remedy at law

— a statutory right of appeal

— a writ of mandamus is not appropriate. See Rule 84.22 (a). 4 Hewitt's Appellate Remedy Is Adequate Hewitt argues , in part, that the circu it court erred by submitting the case to arbitration because the arbitrat ion agreement is unconscionable. His primary argument

4 The parties in this case did brief and argue the procedural issue of whether an extraordinary writ is appropriate to resolve the issues presented. The principal opinion demonstrates the problem with this Court treating an original proceeding in mandamus as if it were an appeal. The prayer for relief in Hewitt's writ petition requests an order requiring the circuit court to overrule the Rams' motion to compel arbitration. It does not request the relief the per curiam opinion grant s: an order modifying t he preliminary order this Court did not issue but directing the circuit court to appoint a new arbitrator.8 for unconscionability is that the arbitrator appointed by the agreement , the NFL

c ommissioner , is inherently biased in favor of the Rams

. Hewitt can seek the same relief he seeks on this unconscionability claim by filing an application to vacate the arbitrator's decision for "evident partiality" after the arbitrator has issu ed a decision. Section
435.405 .1(2) . I f Hewitt does not agree with the circuit court's ruling concerning the application to vacate , he can appeal the judgment

. See § 435.440.1(6). Hewitt cannot raise his claim s o f unconscionability in a motion to vacate the award in the circuit court following arbitration b ecause the circuit court has already ruled against him on those claims in the proceedings to compel arbitration. 5 See § 435.405.1(5). However, this does not affect Hewitt's statutory right to appeal the circuit court's previous ruli ng after it enters a final judgment.
After arbitration, th e circuit court "shall confirm [the] award" upon application of a party, unless the court is urged to vacate, modify, or correct the award. Section
435.400. If the circuit court confirms, modifies , or corrects the award

— that is, if it does not vacate the award

— "judgment or decree shall be entered." Section 435.415. An appeal can then be taken from that judgment or decree "in the manner and to the same extent as from orders or judgments in a civil action." Section 435.440 .1(6), .2

. A party can challenge the circuit court's previous orders in the case in an appeal from a final judgment

. See § 512.020(5), RSMo Supp. 2013 ("[A] failure to appeal from any action or decision of the court before fina l judgment shall not prejudice the right of

5 Section 435.405.1(5) allows a party to claim, in a n application to vacate the arbitration award, that there was no agreement to arbitrate, as l ong as the circuit court has not already ruled against such a finding during proceedings to compel arbitration

.9 the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.")

. Therefore, if the arbitrator's award stands in any form, Hewitt can challenge the ci rcuit court's previous ruling that there was a contract to arbitrate in an appeal from the circuit court's final judgment. His appellate remedy, like all others who must wait until the end of circuit court proceedings to chal lenge its rulings, is adequate

. Judge Stith's opinion cites two of this Court's cases for the proposition that a writ of mandamus is the appropriate procedure. Neither case even hinted that a writ should be used . Both were appeals. Brewer v. Missouri Title Loans , 364 S.W.3d 486, 487 (Mo. banc 2012); Lawrence v. Beverly Manor , 273 S.W.3d 525, 527 (Mo. banc 2009). Judge Stith's opinion also suggests that the immediate use of a writ is necessary because "the courts" should review whether there is a valid contract to arbitrate before ar bitration takes place. In fact, the legislature provided for this type of pre

- arbitration judicial review by permitting circuit court s to determine the validity of arbitration agreements when a challenge is brought

. See §§ 435.355, 435.435 . However, whe n a circuit court concludes there is a valid arbitration agreement, the statutes make clear that the time for review by appellate courts is after the arbitration takes place , at the end of the circuit court proceedings

. A writ should not be used to underm ine this legislative choice

— which can hardly be considered "pointless"

— to favor the swift resolution of arbitrable cases without the routine interruption of interlocutory appeal s challenging arbitration agreements

. Like10 in the vast majority of other cases , the end

- of

- case right to appeal gives adequate protection to those wishing to challenge circuit court errors

. 6
Conclusion Notably, Hewitt does not argue that he cannot appeal the circuit court's ruling s after it reaches a final judgment, but that it woul d be unduly burdensome to wait. In my view, t he "alternative remedies waste judicial resources or result in a burdensome delay" justification applied by the principal opinion certainly has not proved itself useful in this

case 7 and leaves the door open fo r unending interruptions by appellate courts attempting

to correc t d iscretionary rulings or errors of law intended to be resolved by the statutory appeals process

. The General Assembly has foreclosed an appeal for Hewitt at this stage of the proceedings, but he has the ability to raise his claim s , including his specific claim
that the arbitrator is biased , after arbitration during the normal course of judicial review and appeal. B ecause Hewitt has an adequate remedy by appeal, I would not issue an

extraor dinary writ

.

__________________ ____ Zel M. Fischer, Judge

6 The issue of whether Missouri's version of the Uniform Arbitration Act denies a challenger to an arbitration agreement a day in court , in vi olation of the "open courts" guarantee of the Missouri Constitution , is for another day. The briefing in this Court does not raise any argument based on the open courts guarantee , and the issue is not preserved

. 7 Had the request for extraordinary writ been promptly and properly denied , this case would already have proceeded to arbitration , and , if necessary, with the benefit of a full and complete record final judgment, a n appeal could have be en sought

.

# SUPREME COURT OF MISSOURI en banc
STATE EX REL . TODD HEWITT, ) ) Relator, ) ) v. ) No. SC93846 ) HONORABLE KRISTINE KERR, ) JUDGE, CIRCUIT COURT FOR ) ST. LOUIS COUNTY, MISSOURI, ) ) Respondent. )
DISSENTING OPINION Like rescuing a drowning man by throwing him an anvil, the per curiam opinion purports to grant “relief” to Petitioner by ordering him to participate in the very thing he asked this Court to stop, i.e., his arbitrat ion

. On its way to this strange conclusion, the plurality opinion ignore s : ( 1 ) the trial court’s role as the finder of fact s and its determination that Petitioner had an opportunity to discover the arbitration rules and chose not to do so, see Sep. Op. of Judge Stith, at p. 13 ; ( 2 ) the constitutional separation of powers which gives the legislature

– not this Court

– the author ity to decide which interlocutory appeals ar e permitted and which are not, see Sep. Op. of Judge Fischer , at p. 3 ; and ( 3 ) this Court’s precedent, s ee , e.g. , State ex rel. Hart v. City of St. Louis , 204 S .W.2d 234, 240 (Mo. banc 1947 ) ( “ unless we can grant the relief sought, we can grant no relief” )

.2 T he plurality opinion cites no case in which this Court has micromanaged a trial court’s actions to this extent under the guise of an extraordinary writ, particularly one resulting in a writ that takes the petitioner precisely where he does not wish to go. This is a misuse of the writ of mandamus. See State ex rel. Fielder v. Kirkwood , 138 S.W.2d 1009, 1010 ( Mo. banc 1940) (“Mandamus will not issue to an inferior court ... to direct the entry of a particular judgment.”) ; State ex rel. McDermott Realty Co. v. McElhinney , 151 S.W. 457, 460 ( Mo. banc 1912) (it is “not the function of a writ of mandamus to direct the course of judicial action in a given cause”) . Instead, t he only
proper purpose of a writ of mandamus is to enforce a clear, unequivocal, and specific right. St ate ex rel. Missouri Growth Ass’n v. State Tax Comm’ n , 998 S.W.2d 786, 788 (Mo. banc 1999). Here, the “right” that the per curiam opinion purports to be enforcing
is so “ clear and unequivocal ” that it take s four opinions and dozens of pages to locate it. And , one can only imagine the look on Petitioner’s face when he learns that this Court has “granted” his petition

... yet finds himself being compelled to arbitrate anyway. For these reasons, and those expressed in Judge Fischer’s opinion, I w ould not issue a permanent writ and would deny the petition

.

___________________________ __ Paul C. Wilson, Judge