Hi CIPAWorld! The Baroness here with an important arbitration ruling today.
Ian Moore, et al., v. MLB Advance Media, L.P., No. 25 CIV. 3121 (AT), 2026 WL 851343, at *1 (S.D.N.Y. Mar. 27, 2026).
Typically, we see defendants wanting to compel arbitration.
But this case, flips the script.
Here, 5,628 individuals sought to compel their claims arising under the Video Privacy Protection Act, the California Information Privacy Protection Act, and various other consumer protection laws to arbitration against MLB.
At the center of the dispute: allegations that MLB Advanced Media (MLBAM) embedded “the Facebook Tracking Pixel” on MLB.TV and MLB.com, transmitting users’ personally identifiable information and viewing history to Facebook.
Petitioners filed 5,746 arbitration demands with the American Arbitration Association. But when MLB didn’t pay the initiation fees, the AAA closed the cases.
So the petitioners sought to compel arbitration.
As a reminder, to determine whether the parties have agreed to arbitrate, courts consider: “(1) whether the parties have entered into a valid agreement to arbitrate, and, if so, (2) whether the dispute at issue comes within the scope of the arbitration agreement.” In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 128 (2d Cir. 2011).
We don’t even need to get to the second element because the petitioners couldn’t even clear step one.
What happened?
Well, all of the petitioners submitted nearly identical declarations in support of the motion – which is not the bad part. BUT, the declarations were “sparse” and didn’t even identify the steps each took to create an MLB account and agree to the Terms of Use, which contained the arbitration provision.
Meanwhile, MLBAM submitted evidence of a 2024 Terms of Use which stated that “any dispute or claim related to alleged violation of [a user’s] privacy rights or interests … including but not limited to [ ] claims under the [VPPA] and corresponding state video privacy laws” is non-arbitrable. According to MLBAM, notice was provided to all consumers of the updated Terms of Use via email AND a banner was provided on MLBAM’s websites that hyperlinked to the updated Terms of Use.
Critically, the petitioners declarations didn’t even address the 2024 Terms of Use at all! They didn’t even disclaim agreeing to it. Huge miss here.
MLBAM also provided further evidence that a vast majority of petitioners accessed an MLB digital property after February 6, 2024, which the court found “supports a finding that they assented to the 2024 TOU.”
The petitioners also failed to demonstrate that the 2024 Terms of Use was otherwise enforceable.
As such, the Court denied the petitioners motion to compel arbitration. However, graciously, it is allowing the parties to conduct limited discovery on this issue.
For all of you out there that are wanting to compel arbitration, you need solid, specific evidence of assent. Vague declarations that don’t even specifically demonstrate how you agreed to the terms simply won’t cut it.
That’s all for now.
Learn more about how to successfully compel arbitration and other fun litigation strategies during my session at the Law Conference of Champions May 5, 2026!
CIPAWorld 