Dish Network disconnects on arbitration agreement

You would think drafting an arbitration agreement should be simple enough. After all, arbitrating employment discrimination claims was court-approved several decades ago. But issues still persist, as we see in this very recent case from the El Paso Court of Appeals.

Where’s Waldo?

Yvette Delgado sued her former employer, Dish Networks, for unlawful discrimination and retaliation. The company asked the court to send the case to binding arbitration because it and Delgado had agreed to arbitration for such claims when she was an employee. But her lawyer no doubt examined the entire agreement on sort of a Where’s Waldo? mission to find a flaw in the agreement. The lawyer found one. And here it is:

The employee agrees that this [Arbitration] Agreement is governed by the Federal Arbitration Act and is fully enforceable. . . . The arbitration shall be governed by and construed in accordance with the substantive law of the state in which the employee performs services for the for [the Employer] as of the date of the demand for arbitration. . . . A Single arbitrator engaged in the practice of law from the American Arbitration Association [AAA] shall conduct the arbitration under the then current procedures of the AAA’s National Rules for the Resolution of Employment Disputes.

Seems OK, right? Not quite. The agreement didn’t outline procedures for picking the arbitrator. While the employer apparently wanted the AAA procedures to govern the selection process, it didn’t say that did it?

Now what?