What's In A Name? "Arbitration" And The NFL Commissioner's Authority Under The FAA

Few areas of US law are as committed to enforcing private dispute resolution as the Federal Arbitration Act (“FAA”). Since its enactment in 1925, the FAA has required courts to treat written arbitration agreements as “valid, irrevocable, and enforceable,” and it has repeatedly been invoked to pre-empt state laws or judicial doctrines perceived as hostile to arbitration.¹ The modern Supreme Court has often described arbitration as a matter of contract above all else: if parties agree to arbitrate, courts must generally honour that bargain.

But that raises a threshold question that is not often confronted directly: What, exactly, counts as “arbitration” under the FAA?

Can parties label a dispute-resolution mechanism “arbitration” even if it bears little resemblance to the independent, bilateral process traditionally associated with the term? And are there limits to contractual freedom where the arbitral forum is structurally aligned with one of the disputing