Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG08388412
Sepulveda, J.
Appellants Oakland Raiders (the Raiders) and team owner Allen Davis appeal from an order denying their petition to compel arbitration. They argue that respondent George Streeter waived any objection to arbitrating his employment dispute with appellants by voluntarily initiating binding arbitration. We affirm.
I.
Factual and Procedural Background
The following facts are taken from the declarations submitted in connection with appellants’ petition to compel arbitration.
The Raiders are a member club of the National Football League (NFL), an unincorporated association that oversees various aspects of football games between member clubs. The team hired Streeter in May 2007 after Davis offered him a job. Streeter claims, and appellants dispute, that he was hired for a term of one year. It is undisputed that there was no written contract between Streeter and the Raiders regarding Streeter’s employment. Streeter was fired in January 2008.
All further dates refer to the 2008 calendar year.
Streeter spoke with a friend who worked in the NFL about his termination, and the friend mentioned that Streeter could contact the NFL for help. Streeter contacted the NFL and was told to speak with Derrick Crawford, the NFL’s counsel for policy and litigation/operations. According to Streeter, Crawford told him that he should write a letter to the commissioner of the NFL, that “this would be an informal process,” and that Streeter did not need an attorney. Crawford did not use the word “ ‘arbitration,’ ” did not inform Streeter that he would be waiving his right to pursue his claims in state court if he wrote to the commissioner, and did not mention any NFL guidelines that governed dispute resolution, according to Streeter. Following his conversation with Crawford, Streeter believed that any grievance he submitted would be “an informal mediation proceeding, whereby the NFL would attempt to resolve the dispute,” and he did not believe that he would be submitting his dispute to the NFL for binding arbitration.
According to Crawford, he in fact explained the NFL’s dispute resolution process (or “Commissioner Arbitration”) to Streeter during their call, and he explained that arbitration would be binding on both parties. He also referred to the NFL’s “Dispute Resolution Procedural Guidelines” (hereinafter dispute resolution guidelines or guidelines), and he forwarded a copy of the guidelines to Streeter after their telephone conversation. The four-page dispute resolution guidelines set forth the process for certifying disputes for arbitration, scheduling management conferences, conducting discovery, submitting motions, holding hearings, and issuing a decision. The guidelines provide that any award or decision by the commissioner “shall be effective and binding as of the date it is delivered to the parties.”
Streeter stated in his declaration that at the time he first spoke with Crawford, he had never seen the dispute resolution guidelines and did not know that they existed.
Streeter, proceeding without an attorney, wrote a letter dated January 31 to Roger Goodell, the commissioner of the NFL, stating that he was “writing to find relief in support of a grievance I have with the Oakland Raiders.” Streeter explained that he believed the Raiders had hired him to work for at least one “personnel season,” and that the team owed him about $50,000. He wrote, “I believe that under the guidelines established by the league to protect workers like myself and their families that the Raiders be commanded to pay me until the end of the personnel season. I am seeking support from you, the commissioner, to enforce our verbal contract and actual intent.”
Crawford wrote to Streeter and Jeffrey Birren, the Raiders’ general counsel, on March 10. The subject line of the letter was “Dispute Certified for Arbitration.” Crawford wrote, “This will acknowledge receipt of Mr. Streeter’s January 31, 2008 letter requesting arbitration of the employment dispute between himself and the Oakland Raiders.” Crawford requested a written response from the Raiders within 20 days pursuant to the dispute resolution guidelines. Enclosed with Crawford’s letter was a copy of the dispute resolution guidelines, which Crawford stated were “generally followed in arbitration proceedings brought under the NFL Constitution and Bylaws.” Crawford wrote that “[t]he guidelines are not intended to impose undue formality on the process and the parties should inform me if they would like to proceed otherwise.” The Raiders’ Birren responded by letter dated March 28, arguing that Streeter was an at-will employee, and requesting that his grievance be summarily dismissed on the merits.
Streeter claimed that he did not object to the letter because he did not believe that the guidelines would be binding, and he did not understand that the NFL intended to require him to submit his dispute to final and binding arbitration.
On April 14, Crawford wrote an e-mail to Streeter and Birren acknowledging the parties’ initial submissions and stating that “the arbitrator” wanted to schedule a management conference. A conference call was scheduled for May 1. According to Streeter, after he received Crawford’s April 14 e-mail, he realized for the first time that the procedure to be used to resolve his dispute with the Raiders was different from what he had previously understood. After exchanging e-mails with Crawford, Streeter spoke with him by telephone, and Crawford then explained the arbitration procedure for the first time. Streeter realized that he needed to secure counsel, and he hired an attorney within 10 days. The attorney, Hunter Pyle, tried to speak with Crawford before the scheduled May 1 conference call to object to the arbitration process, but he was told to dial into the call.
During the May 1 call, Pyle announced that he did not believe that the NFL could exercise jurisdiction over Streeter’s dispute with the Raiders, and he objected to arbitration. After the call, Crawford sent an e-mail to Pyle that included an excerpt from the “NFL Constitution,” which stated, “The Commissioner shall have full, complete, and final jurisdiction and authority to arbitrate [¶]... [¶] [a]ny dispute between any player, coach, and/or other employee of any member of the League (or any combination thereof) and any member club or clubs.”
Streeter filed his complaint in the trial court on May 20, alleging causes of action against the Raiders for wrongful termination, breach of contract, and tortious breach of contract, and against the Raiders and Davis for fraud, violation of Labor Code section 970, and negligent misrepresentation.
On July 1, appellants filed a petition to compel arbitration and a motion to stay court proceedings. They argued that Streeter had agreed to arbitrate the dispute before filing his lawsuit “by voluntarily initiating the arbitration process through the Commissioner of the NFL.” Streeter opposed the petition, arguing that he did not agree to arbitrate, and that he never waived his right to object to arbitration.
Appellants also argued that the trial court was bound by the doctrine of abstention from disturbing the NFL’s determination that the matter was subject to the NFL’s arbitration procedures. The trial court ruled that the abstention doctrine did not apply to the parties’ dispute, and appellants do not challenge that conclusion on appeal.
The trial court denied appellants’ petition to compel arbitration. The court concluded that Streeter’s January 31 letter to the commissioner of the NFL did not show an intent to initiate arbitration proceedings or to submit his grievance to binding arbitration. Streeter’s participation in arbitration proceedings thereafter was “minimal at best,” the court concluded, and waiver of the right to object to arbitration would be found only when the objecting party had participated “far more extensively” that Streeter had participated here. Appellants timely appealed. (Code Civ. Proc., § 1294, subd. (a) [order denying petition to compel arbitration is appealable].)
The trial court also denied appellants’ motion to stay court proceedings as moot.
All further statutory references are to the Code of Civil Procedure.
II.
Discussion
Appellants argue that the trial court erred when it concluded that Streeter did not intend to submit his claims to binding arbitration when he wrote to the NFL commissioner regarding his dispute with the Raiders. Section 1281.2 provides in part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists....” “The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972, citing Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) The facts relevant to enforcement of an arbitration agreement must be determined “ ‘in the manner... provided by law for the... hearing of motions.’ ” (Rosenthal at p. 413, citing § 1290.2.) This “ordinarily would mean the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.” (Rosenthal at pp. 413-414.)
The parties do not distinguish between the Raiders and Davis, who did not submit a declaration in the trial court. Streeter’s July 31 letter to the NFL commissioner stated, “As owner of the team Mr. Davis can do what he wants, but I believe that under the guidelines established by the league... that the Raiders be commanded to pay me....” (Italics added.) Even if the letter could be construed as initiating binding arbitration with the Raiders, arguably the same is not true with respect to Davis. Crawford’s March 10 letter acknowledging Streeter’s letter referred to Streeter’s dispute with the Raiders and requested a response from the team; Crawford did not refer to arbitration with Davis. Because we conclude that Streeter did not waive his right to object to arbitration with any party, we need not address this issue.
The parties disagree over the appropriate standard of review. Because the trial court considered only “written” evidence, appellants argue, the standard of review is de novo, citing CPI Builders, Inc. v. Impco Technologies, Inc. (2001) 94 Cal.App.4th 1167, 1171-1172 and Patterson v. ITT Consumer Financial Corp. (1993)14 Cal.App.4th 1659, 1663. Streeter argues that because the issues of whether he agreed to arbitrate and whether he waived the right to object to arbitration involved disputed questions of fact, we review the trial court’s order for substantial evidence, citing SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462 and Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429. Although the law on this issue is in some disarray, in our view the weight of authority supports Streeter’s position. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 422 [affirming order compelling arbitration where substantial evidence that parties reached agreement to arbitrate]; Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653 [substantial evidence supported trial court’s denial of petition to compel arbitration].) We need not resolve this dispute, however, because we would reach the same conclusion under either standard of review.
“The statutory scheme for the enforcement of arbitration agreements applies only to written agreements.” (Magness Petroleum Co. v. Warren Resources of Cal., Inc. (2002) 103 Cal.App.4th 901, 907, citing § 1281 et seq.; see also Law Offices of Ian Herzog v. Law Offices of Joseph M. Fredrics (1998) 61 Cal.App.4th 672, 677.) Here, appellants do not contend that they had a written agreement with Streeter governing the terms of his employment, or any predispute understanding that any claims would be submitted to binding arbitration. They claim that the dispute with Streeter is governed by the dispute resolution guidelines, which contemplate binding arbitration. However, they do not claim that Streeter had notice of those guidelines, let alone that he agreed to them, before he sought Crawford’s help with his employment dispute. Indeed, they acknowledge on appeal that “[t]here may be disputes that the Raiders would prefer a court to resolve, and the club prefers not to pre-ordain that every dispute go to arbitration.” Appellants argue that by writing to the commissioner after Crawford explained the arbitration process to him and sent him a copy of the dispute resolution guidelines, Streeter intentionally initiated binding arbitration, and is now precluded from objecting to arbitration. (Nghiem v. NEC Electronic, Inc. (9th Cir. 1994) 25 F.3d 1437, 1439-1440 [employee’s request to proceed with specific step of employer’s employee handbook covering binding arbitration constituted writing memorializing agreement to arbitrate].) They claim that Streeter’s request in his July 31 letter that the NFL commissioner “ ‘command[]’ ” the Raiders to pay him money and his reference to “ ‘the guidelines established by the league’ ” demonstrated that Streeter understood the “binding nature of the procedures he was initiating.”
We agree with the trial court’s conclusion that Streeter’s letter did not show an intent to initiate binding arbitration. Streeter no doubt believed that the commissioner of the NFL could compel the Raiders to pay him what he claimed the team owed; otherwise, it is doubtful that he would have written to the commissioner for assistance. Although he referred generally to “the guidelines established by the league to protect workers like myself and their families,” Streeter did not specifically refer to the dispute resolution guidelines or indicate that he had agreed to them, or even read them. Although Streeter did not object to the process after he received Crawford’s March 10 letter stating that he had received Streeter’s request for arbitration and enclosing a copy of the dispute resolution guidelines, that fact does not alter our conclusion. Crawford stated that the guidelines were “not intended to impose undue formality on the process” and that the parties could “proceed otherwise,” and Streeter did not consider them to be binding.
Had he done so, he might have followed the guidelines more carefully when he wrote to the NFL commissioner. The guidelines state that a party wishing to certify a dispute for arbitration shall send a written request to “hear and decide the matter, with a copy of the request to all other directly affected persons.” Streeter did not specifically request a hearing (or arbitration, for that matter); instead, he asked for the commissioner’s “support” and said that he was “look[ing] forward to hearing from” the commissioner. He did not forward a copy of his letter to the Raiders, as required by the dispute resolution guidelines, which specifically prohibit ex parte communications with the commissioner in connection with the material facts of a dispute. We note that the guidelines do not explicitly state that parties who participate in NFL arbitration waive their right to a jury trial, only that an award or decision by an arbitrator “shall be effective and binding as of the date it is delivered to the parties.”
Appellants claim, without citation to the record (cf. Cal. Rules of Court, rule 8.204(a)(1)(C)), “Streeter is too experienced a businessman not to have objected to Crawford’s letter immediately if his Grievance had not been a request for binding arbitration.” The trial court sustained Streeter’s objection to evidence of Streeter’s business background, and appellants do not challenge that evidentiary ruling on appeal. They point to no evidence that Streeter’s experience as a businessman demonstrated that he was aware he was entering binding arbitration.
Had Streeter actually participated in arbitration proceedings to the point where an arbitrator had issued an award or decision, we very well might conclude that he waived any objection to arbitration. Here, however, Streeter’s participation in arbitration proceedings was “minimal at best.” Streeter wrote to the NFL commissioner on July 31, received a response from the Raiders, and exchanged correspondence with the NFL’s Crawford. Streeter’s counsel objected to the arbitration at the first management conference, apparently before the parties had even agreed on a schedule. The Ninth Circuit cases upon which appellants rely, which involved challenges to the confirmation of final arbitration awards, are therefore easily distinguishable. (Nghiem v. NEC Electronic, Inc., supra, 25 F.3d at p. 1440 [party who initiated arbitration, attended hearings, presented evidence, submitted closing brief, and received final decision adverse to him could not change mind and assert arbitrator’s lack of authority to act]; Fortune, Alsweet & Eldridge, Inc. v. Daniel (9th Cir. 1983) 724 F.2d 1355, 1357 [party attended two arbitration hearings and waited until shortly before arbitrator’s decision was announced to challenge arbitrator’s authority]; cf. Nagrampa v. Mailcoups, Inc. (9th Cir. 2006) 469 F.3d 1257, 1277-1278 [no waiver of right to challenge arbitration where party objected to proceeding at first opportunity; party’s minimal participation thereafter did not address merits of claims].)
Because we conclude that the record amply supports the trial court’s and our conclusion that Streeter did not waive any objection to binding arbitration, we disagree with appellants’ argument that public policy favors the completion of arbitration proceedings. “There is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.” (Engineers & Architects Assn. v. Community Development Dept., supra, 30 Cal.App.4th at p. 653.)
III.
Disposition
The order denying appellants’ petition to compel arbitration is affirmed. Respondent shall recover his costs on appeal.
We concur: Ruvolo, P. J. Rivera, J.