Antoine v. ESPN Enterprises, Inc.

Filing 32

ORDER denying 26 plaintiff's motion to compel arbitration. The parties are directed to proceed with arbitration as previously ordered by the court (Doc. 23) under the 2021 Subscriber Agreement (unless and until the arbitration pursuant to that agreement determines otherwise). By March 28, 2025, plaintiff must comply with all pre-conditions that have not already been satisfied and the parties must commence arbitration. This case will remain STAYED until the parties advise the court th at (1) arbitration has been completed and (2) the stay should be lifted, or the case should be dismissed. The parties must promptly notify the court of any resolution, even if contingent or unwritten, and they are otherwise directed to file a joint status report on October 1, 2025, and quarterly thereafter until arbitration concludes. See order for details. Signed by Magistrate Judge Nicholas P. Mizell on 3/7/2025. (TLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DARNEL ANTOINE,
Plaintiff,
v.

2:23-cv-887-JLB-NPM

ESPN ENTERPRISES, INC.,
Defendant.
ORDER
Plaintiff Darnel Antoine initiated this purported class action against defendant
ESPN Enterprises, Inc., alleging that ESPN shared the video-viewing history of
visitors to its website (www.espn.com), like Antoine, in violation of the Video
Privacy Protection Act, 18 U.S.C. § 2710, et seq. Under a Disney+ and ESPN+
Subscriber Agreement (dated November 1, 2021), ESPN sought to compel
arbitration, arguing that Antoine agreed to arbitrate his claim in a “sign-in” wrap
agreement and that his claim fell under the Agreement’s mandatory arbitration
clause. (Doc. 19). With no opposition from Antoine (Doc. 22), the court compelled
arbitration and stayed the case on December 21, 2023. (Doc. 23).
In February of 2024, plaintiff counsel sent a Notice of Dispute to ESPN—as
required under the Subscriber Agreement—on behalf of Antoine and 406 other
claimants. (Doc. 26-1). In response, ESPN noted that Disney Platform

Distribution, Inc. and BAMTech, LLC1 adopted an updated Subscriber Agreement
on January 25, 2024, and under this updated agreement, Antoine (and the other 406
claimants) must not only meet certain preconditions to the filing of arbitration but
must also now proceed with ADR Services, Inc., rather than JAMS. (Doc. 26-2).
Undeterred, plaintiff counsel filed 407 demands for arbitration with JAMS under the
2021 Subscriber Agreement. (Doc. 26-3). However, ESPN insisted that JAMS
lacked jurisdiction over any dispute under the terms of the more recent 2024
Subscriber Agreement, and, therefore, ESPN would not be participating in
arbitration. (Doc. 26-4). On April 2, 2024, Antoine made another arbitration demand
under a different arbitration agreement—the June 9, 2020 Disney Terms of Use—
which received similar objections from ESPN.2 (Docs. 26-5; 26-6).
With no resolution in sight, Antoine filed a motion to compel arbitration on
April 30, 2024, which sets forth two issues for resolution: (1) whether
ESPN/BAMTech, LLC forfeited its right to enforce the arbitration provision in the
November 2021 Subscriber Agreement; and (2) whether the arbitration should
proceed under a provision contained within the June 2020 Disney Terms of Use,

1

According to ESPN, BAMTech, LLC is the owner and operator of ESPN+. (Doc. 29 at 4 n.1).

In response to Antoine’s final arbitration demand, ESPN asserted that it was not a party to either
of the Subscriber Agreements or the June 2020 Disney Terms of Use. (Doc. 26-6 at 1-2). However,
ESPN states that once in arbitration, it will ask the arbitrator to substitute the signatory,
BAMTech, LLC, as the proper respondent. (Doc. 29 at 4 n.1).
2

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which incorporates JAMS arbitration rules. (Doc. 26). ESPN responded by
acknowledging that both parties agree that arbitration is required, however, ESPN
requests that the court determine whether the 2021 Subscriber Agreement applies.
But in the court’s view, that ship has sailed as we issued an order compelling
the parties to arbitrate according to the 2021 Subscriber Agreement. (Docs. 19, 191, 23). And we did so based on ESPN’s declaration that this “Subscriber Agreement
contains a clear and conspicuous arbitration agreement that governs this dispute, as
well as an agreement to delegate to the arbitrator the exclusive authority to resolve
questions about the application, scope, or enforceability of the arbitration
agreement.” (Doc. 19 at 2). So whatever agreement may have gone into effect after
we ordered the parties to arbitrate is of no consequence to the court.
This brings us to our next point. Whether the 2021 Subscriber Agreement’s
arbitration clause applies would be for the arbitrator to decide, not the court. Indeed,
a cursory examination of the 2021 Subscriber Agreement reveals a clear and
unmistakable intent for the arbitrator to resolve gateway questions about
arbitrability. See Jones v. Waffle House, Inc., 866 F.3d 1257, 1264 (11th Cir. 2017)
(“[T]he parties may agree to arbitrate gateway questions of arbitrability including
the enforceability, scope, applicability, and interpretation of the arbitration
agreement.”). To be sure, the Agreement states in section “7. Binding Arbitration
and Class Action Waiver”:
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You and Disney+ and/or ESPN+ agree to arbitrate, as provided below, all
disputes between you (including any related disputes involving The Walt
Disney Company or its affiliates), that are not resolved informally, except
disputes relating to the ownership or enforcement of intellectual property
rights. “Dispute” includes any dispute, action, or other controversy,
whether based on past, present, or future events, between you and us
concerning the Disney+ Service, ESPN+ Service, or this Agreement, whether
in contract, tort, warranty, statute, regulation, or other legal or
equitable basis. You and Disney+ and/or ESPN+ empower the arbitrator
with the exclusive authority to resolve any dispute relating to the
interpretation, applicability or enforceability of these terms or the
formation of this contract, including the arbitrability of any dispute and
any claim that all or any part of this Subscriber Agreement are void or
voidable.

(Doc. 29-4 at 10) (emphasis added).3
Similarly, section “7. Binding Arbitration and Class Action Waiver” of the January 2024
Subscriber Agreement provides that:
3

PLEASE READ THIS PROVISION CAREFULLY—YOU ARE AGREEING TO
RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING
INDIVIDUAL ARBITRATION AND INCLUDE A CLASS ACTION WAIVER
AND JURY TRIAL WAIVER.
There may be instances in which disputes arise between us. You, on the one hand,
and Disney+ and/or ESPN+, on the other hand, agree to resolve, by binding
individual arbitration, all Disputes (including any related disputes involving The
Walt Disney Company or its affiliates) except for: (i) any claim within the
jurisdiction of a small claims court consistent with the jurisdictional and dollar
limits that may apply, as long as it is an individual dispute and not a class action;
and (ii) any dispute relating to the ownership or enforcement of intellectual property
rights.
“Dispute” includes any claim, dispute, action, or other controversy, whether
based on past, present, or future events, whether based in contract, tort, statute,
or common law, between you and us concerning the Services, or this exclusive
authority to resolve any dispute relating to the interpretation, applicability or
enforceability of these terms or the formation of this contract, including,
without limitation, the arbitrability of any dispute, and any claim that all or
any part of this Agreement is void or voidable.
(Doc. 29-3 at 13-14) (emphasis added).

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Here, the arbitration provision broadly delegates to the arbitrators “any
claim, dispute, action, or other controversy, whether based on past, present, or future
events . . . [or] any dispute relating to the interpretation, applicability or
enforceability of these terms or the formation of this contract . . ..” And no doubt,
“‘any’ means all.” Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1299
(11th Cir. 2021); see also United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read
naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’”). Thus, the court cannot override the arbitration
provision and “possesses no power to decide the arbitrability issue.” Henry Schein,
Inc. v. Archer and White Sales, Inc., 586 U.S. 63, 68 (2019); see also Rent-A-Center,
W., Inc. v. Jackson, 561 U.S. 63, 72 (2010) (with no challenge specific to the
gateway-delegation provision, courts must treat it as valid and enforce it).
Accordingly, the parties must proceed to arbitration under the terms of the 2021
Subscriber Agreement, and the arbitrators—not the court—will determine whether
ESPN/BAMTech forfeited its right to enforce the 2021 Subscriber Agreement or,
even if it did not, whether the 2024 Subscriber Agreement or the arbitration
provision found on ESPN’s website applies; as well as any other dispute or
controversy between the parties arising from the Agreements.
So, Antoine’s motion to compel arbitration (Doc. 26) is DENIED. The parties
are directed to proceed with arbitration as previously ordered by the court (Doc. 23)
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under the 2021 Subscriber Agreement (unless and until the arbitration pursuant to
that agreement determines otherwise). By March 28, 2025, Antoine must comply
with all pre-conditions that have not already been satisfied and the parties must
commence arbitration. This case will remain STAYED until the parties advise the
court that (1) arbitration has been completed and (2) the stay should be lifted, or the
case should be dismissed. The parties must promptly notify the court of any
resolution, even if contingent or unwritten, and they are otherwise directed to file a
joint status report on October 1, 2025, and quarterly thereafter until arbitration
concludes.
ORDERED on March 7, 2025.

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