Professional Documents
Culture Documents
Trout Post-Appeal Brief by WBO
Trout Post-Appeal Brief by WBO
Trout Post-Appeal Brief by WBO
AUSTIN TROUT,
Plaintiff,
v.
ORGANIZACIÓN MUNDIAL DE BOXEO, INC.,
Defendant.
Pietrantoni Méndez & Alvarez LLC Law Offices of Andrew W. Horn, P.A.
Popular Center, 19th Floor 2665 S. Bayshore Drive
208 Ponce de León Avenue Suite 800
San Juan, Puerto Rico 00918 Miami, FL 33131
Tel. 787-274-1212 Tel. 305-373-7789
Fax. 787-274-1470 Fax. 305-372-9180
Oreste R. Ramos Andrew W. Horn
USDC No. 216801 admitted pro hac vice
oramos@pmalaw.com lawofficehorn@msn.com
Christian A. Muñoz Lugo
USDC No. 305813
cmunoz@pmalaw.com
November 9, 2020
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TABLE OF CONTENTS
Page
i
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TABLE OF AUTHORITIES
Page(s)
Cases
Citrin v. Erikson,
918 F. Supp. 792, 798–99 (S.D.N.Y.1996)..............................................................................15
ii
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Morelite Constr. Corp. v. New York City Dist. Council Carpenters Benefit Funds,
748 F.2d 79, 83 (2d Cir. 1984).................................................................................................14
Ranzy v. Tijerina,
393 Fed. Appx. 174, 176 (5th Cir.2010) ....................................................................................8
iii
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Secondary Sources
iv
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Plaintiff,
VIOLATION OF THE MUHAMMAD ALI
vs. ACT; BREACH OF CONTRACT; FRAUD;
DAMAGES
ORGANIZACION MUNDIAL DE
BOXEO, INC., PLAINTIFF DEMANDS TRIAL BY JURY
Defendant.
COMES NOW, Organización Mundial de Boxeo, Inc. (hereinafter, “WBO”, by its English
acronym), by and through its undersigned counsel and very respectfully states, alleges and prays
as follows:
I. PRELIMINARY STATEMENT
On October 7, 2020 this Honorable Court ordered each of the parties to brief whether the
arbitrator selection clause contained in the WBO’s rules is severable from the remainder of the
arbitration agreement between the parties. (Docket No. 92). As discussed below, the arbitrator
selection provision is severable for two main reasons. First, the arbitrator selection provision is not
integral or central to the WBO’s Rules and Regulations. Second, Section 36 of the WBO’s
Championship Regulations contains a savings clause which further demonstrates the parties’ intent
that allows for the arbitrator selection clause to be severable from the remainder of the WBO’s
Rules. The severability of the arbitrator selection clause clears the way for arbitration to proceed
Case 3:17-cv-01953-PAD Document 93 Filed 11/09/20 Page 7 of 27
with the arbitrators being appointed in one of two ways. One option is for this Honorable Court,
pursuant to 9 U.S.C. § 5, to appoint a panel of three arbitrators that have knowledge and experience
in world championship professional boxing. The other would be for the Court to allow each of the
parties to select an arbitrator with experience in world championship professional boxing, who, in
turn, would name a third arbitrator with the same type of experience. That third arbitrator would
On September 30, 2018, this Honorable Court issued an Opinion and Order (Docket No.
72) granting the WBO’s motion to compel arbitration. In doing so, the Court relied inter alia on
All WBO participants acknowledge and agree that the mandatory resort to the
WBO Appeals Regulation is the sole and exclusive remedy for any claim, appeal,
grievance or contest that arises from any right or status that is or could be subject
to these Regulations or which results or could result from or relate to the
interpretation or application of these Regulations. These WBO Grievance
Committee determinations are Arbitrations within the contemplation of the
Arbitration Law of Puerto Rico, 32 LPRA Section 3201 et. seq. and the US
Arbitration Act, Title 9 of the United States Code and the Inter-American
Convention on International Commercial Arbitration of July 30, 1975 and the
Convention on the Recognition and Enforcement of Foreign Arbitration Awards of
June 10, 1958. All WBO participants stipulate and agree that the nature of the
sport requires a prompt, final and uniform resolution of all disputes
concerning application of these Regulations by a tribunal experienced with the
application of these Regulations and with special knowledge and experience in
world championship professional boxing.
(emphasis added).
Plaintiff Austin Trout (“Trout”) sought reconsideration from this Order, which the Court
denied on November 26, 2018 (Docket No. 81). Trout then appealed to the United States Court of
Appeals for the First Circuit, challenging the arbitrability of his claims against the WBO (Docket
No. 84). In sum, Trout argued that: 1) Section 35(e) is precluded by Section 35(d) of the
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Championship Regulations;1 2) the WBO implicitly waived its right to invoke arbitration as to his
claims; 3) not all of his claims are arbitrable; and 4) the arbitrator selection clause of the WBO’s
Appeal Regulations does not provide him a “fair opportunity” to pursue his claims because it
permits the WBO to act as “party and judge.” On July 10, 2020, the Court of Appeals issued an
Opinion rejecting Trout’s challenges to the arbitrability of his claims against the WBO. (Docket
No. 85). In doing so, the Court of Appeals validated Section 35(e) of WBO’s Championship
Regulations, explaining that it was not foreclosed by Section 35(d), which “merely provides that
local or federal courts in Puerto Rico … are the only ones that may hear those matters to which it
applies and that section 35(e) does not itself provide must be heard by an arbitral tribunal.”
Opinion, p.8.
The Court of Appeals, however, agreed with one of Trout’s arguments, namely that the
arbitrator selection clause of the Appeal Regulations as it read may not be enforced. Opinion, p.
21. In view of this ruling, the Court of Appeals remanded the case to the District Court to determine
if the arbitrator selection provision is severable from the remainder of the arbitration agreement.
In making this determination, the Court of Appeals stated that the District Court needed to take
into consideration: 1) the parties’ intent, 2) the federal policy favoring arbitration, and 3) the
interplay between state law and that federal policy (Opinion, p. 22), and although the Court of
Appeals acknowledged that the WBO discussed the savings clause contained in Section 36 of the
Championship Regulations, it did not feel that the parties had fully engaged the above factors 1, 2
and 3 or the applicability of the savings clause and did not issue a ruling on it as it was not fully
engaged in the briefing; which implicitly suggests that the parties address its applicability at a later
1
Section 35(d) of the Championship Regulations states that “the exclusive venue for any or all action in which the
WBO is made a party… may be maintained only in the Superior Court of the Commonwealth of Puerto Rico, or, if
applicable, in the U.S. District Court for the Commonwealth of Puerto Rico”.
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stage of the case. The Court of Appeals noted that if the arbitrator selection provision is severable,
the arbitration could move forward as to all of Trout’s claims pursuant to Section 35(e) of the
Championship Regulations, the Appeal Regulations, and 9 U.S.C. § 5, which grants district courts
On September 22, 2020 this Honorable Court ordered the parties to confer and file, no later
than October 7, 2020, a joint motion with their recommendations as to what the next steps in the
litigation should be, particularly in light of the issues that the Court of Appeals referred to at pages
22 and 23 of its July 10, 2020 Opinion (Docket No. 90). In compliance with this Honorable Court’s
Order, on October 6, 2020, the parties filed a joint motion informing the Court that they had
conferred as to what the next steps in the litigation should be and requested the Court to grant them
a term of thirty days to submit separate, but simultaneous briefs with their respective legal positions
on the severability question for this Honorable Court’s consideration. (Docket No. 91).
On October 7, 2020, this Honorable Court ordered the parties to file separate briefs, no
later than November 9, 2020, at 5:00 p.m., including relevant case law, discussing whether the
arbitrator selection clause contained in the WBO’s rules is severable from the remainder of the
arbitration agreement previously agreed to by the parties. (Docket No. 92). The WBO submits the
III. ARGUMENT
The Court of Appeals remanded the case to this Honorable Court to determine whether the
savings clause in the WBO’s Championship Regulations, Sec. 36, allows the arbitrator selection
provision contained within Article 1 of the WBO’s Appeal Regulations to be severed from the rest
of the arbitration agreement between the parties. Opinion, p. 21-23. As part of this analysis, the
Court of Appeals explained that “[i]n determining whether ‘the [arbitration agreement] should be
4
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enforced absent the invalid arbitrator selection-mechanism and, if it should, how to select an
arbitrator,’ however, we must consider ‘the parties’ intent,’ the ‘[f]ederal policy favoring
arbitration,’ and ‘the interplay between state law and that federal policy.’” Opinion, p. 22, quoting
McMullen v. Meijer, Inc., 355 F.3d 485, 495 (6th Cir. 2004). Considering this criteria, it is clear
that―pursuant to the written regulations accepted by the parties and the federal policy favoring
arbitration―the parties’ intention was to promptly resolve their disputes in arbitration, before a
panel with knowledge and experience in world professional championship boxing, following the
Federal Arbitration Act (“FAA”) or its analogous counterpart, the Arbitration Law of Puerto Rico.
Because it was never the parties’ intent to arbitrate their disputes before a specific forum or before
specific arbitrators, the arbitrator selection clause is merely auxiliary or supplemental to the
arbitration agreement and is not central to the arbitration provisions. Thus, the arbitrator selection
clause is severable from the WBO’s arbitration agreement. In fact, the arbitration provisions of the
WBO’s Championship Regulations are independent from the arbitrator selection provisions and
can operate with or without the arbitrator selection clause contained in Article 1 of the WBO’s
Appeal Regulations.
Below we discuss each of the factors cited by the Court of Appeals, explaining the reasons
A. The Parties’ Intent to Arbitrate their Disputes, Pursuant to Section 35(e) of the
Championship Regulations and the “Integral” Test
As discussed in the Opinion, the first factor to consider when evaluating the severability of
the provision in dispute is the parties’ intention, as reflected in the arbitration provisions in
question, and whether the arbitrator selection provision was central to the parties’ intent to
arbitrate. In doing so, we must emphasize that there are “two sets” of WBO Regulations that apply
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to the dispute, namely: The Championship Regulations and the Appeal Regulations. The Appeal
Regulations contain the Arbitrator Selection Clause in Article 1 of the WBO Appeal Regulations.
First, the arbitration clause contained within the Championship Regulations, Section 35(e):
1) requires all WBO participants to acknowledge and agree to the mandatory and exclusive
arbitration proceedings under the WBO Regulations of World Championship Contests governed
by the WBO Appeal Regulations; 2) establishes that the WBO Appeals and Grievance Committee
determination are arbitrations within the scope of the Arbitration Law of Puerto Rico, 32 P.R.
Laws Ann. §§ 3201 et. seq., the Federal Arbitration Act, USC, Title 9 and others; and 3) requires
that “[a]ll WBO participants stipulate and agree that the nature of the sports requires a prompt,
final and uniform resolution of all disputes concerning application of these Regulations by a
tribunal experienced with the application of the Regulations and with special knowledge and
other words, this Section serves three purposes: the acknowledgement or acceptance of an
arbitration proceeding under the Appeal Regulations; that the arbitration is bound by the federal
and state arbitration legislation; and that all disputes must be resolved promptly by a tribunal forum
that is both experienced and knowledgeable in world championship professional boxing. Section
35(e) of the WBO Championship Regulations does not require that the arbitration be conducted
As stated above, Trout did not successfully challenge Section 35(e) before the Court of
Appeals. Thus, there is no dispute that Section 35(e) is in effect, that the parties are bound by it,
and that the parties intended that the disputes be resolved promptly by arbitrators who are
Puerto Rico and Federal Arbitration Acts. Additionally, as the Court of Appeals recognized on
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pages 21-22 and 23 of its Opinion, Section 36 of the Championship Regulations contains a savings
clause, which states that “[i]f any of these Rules are determined to be unenforceable, the balance
The Championship Regulations are supplemented by the WBO’s Appeal Regulations. The
Appeal Regulations provide a series of articles that are mostly procedural, regarding various
alternative dispute resolution mechanisms. For example, Article 3 authorizes the President of the
WBO “to attempt to resolve any such Complaint by alternative dispute resolutions such as
negotiation or mediation.” The Appeal Regulations, Article 3, also indicate the requirements or
parameters for filing a Complaint. Also, Articles 4 and 7 establish that all WBO participants
stipulate and agree that the nature of the sport requires a prompt dispute resolution, which should
be resolved as soon as practicable, in a period not to exceed ten business days after a hearing (if
applicable) or thirty days after referral of the Complaint to the WBO President.
Here, the only provision that was invalidated by the Court of Appeals was the separate and
supplemental arbitrator selection provision contained in Article 1 of the Appeal Regulations. The
Court of Appeals’ Opinion should not be construed to invalidate the intention of the parties stated
in other provisions of the Appeal Regulations, much less the arbitration requirement contained in
If the drafters considered that the arbitrator selection provision of the Appeal Regulations
was central to the Championship Regulations’ arbitration clause, they would have included it
directly into its Section 35(e). Instead, they incorporated it by referencing the Appeal Regulations.
Thus, the unenforceability of the supplemental arbitrator selection provision contained in Article
1 for designation of arbitrators in the Appeal Regulations has no force or effect over the
enforceability of the arbitration required by Section 35(e) of the Championship Regulations and
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should not imply that the arbitration clause in Section 35 (e) of the Championship Regulations may
not be enforced. See Khan v. Dell Inc., 669 F.3d 350, 354 (3d Cir. 2012) (concluding that, to
invalidate an arbitration agreement, “the parties must have unambiguously express[] their intent
not to arbitrate their disputes in the event that the designated arbitral forum is unavailable.”); Ruiz
v. Millennium Square Residential Ass'n, 156 F. Supp. 3d 176, 183 (D.D.C. 2016) (holding that the
unenforceability of the arbitrator selection provision is severable, thus, does not doom the
arbitration agreement in its entirety); Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742
F. Supp. 1359, 1365-1366 (N.D. Ill. 1990) (granting motion to compel arbitration before a
substitute arbitrator(s) to be mutually selected by the parties ‒or, in the alternative, by the Court‒
after finding that the unenforceable arbitrator selection provision incorporated from another
regulation is severable).
When determining whether an arbitrator selection provision is severable from the rest of
the arbitration clause, various circuits have adopted the “Integral” Test.2 Pursuant to this test, an
entire arbitration clause is unenforceable when one particular forum is chosen as the arbitration
forum but the forum is unavailable―and that particular forum choice was “integral” to the
parties’ intention to arbitrate―and the clause provides no alternative forum. A-1 Premium
Acceptance, Inc. v. Hunter, 557 S.W.3d 923, 928 (Mo. 2018), cert. denied, 139 S. Ct. 1340 (2019);
see also Ranzy v. Tijerina, 393 Fed. Appx. 174, 176 (5th Cir.2010) (If the specification of a
particular arbitral forum or arbitrator was integral or central to the parties' agreement to arbitrate,
2
In re Salomon Inc. S'holder's Derivative Litig. 91 Civ. 5500(RRP), 68 F.3d 554, 561 (2d Cir.1995); Khan v. Dell
Inc., 669 F.3d 350, 354–57 (3d Cir.2012); BP Exploration Libya Ltd. v. ExxonMobil Libya Ltd., 689 F.3d 481, 491 n.
7 (5th Cir.2012); Nat'l Iranian Oil Co. v. Ashland Oil Co., 817 F.2d 326, 333–35 (5th Cir.1987); Reddam v. KPMG
LLP, 457 F.3d 1054, 1059–61 (9th Cir.2006). However, the Seventh Circuit rejected this test after concluding that
Section 5 of the FAA supplements arbitration clauses whether a particular provision within the arbitration clause is
“integral” or not. Green v. U.S. Cash Advance Illinois, LLC, 724 F.3d 787, 792 (7th Cir. 2013).
8
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then the subsequent unavailability of that forum or arbitrator precludes the court from compelling
arbitration.); In re Salomon Inc. S'holders' Derivative Litig. 91 Civ. 5500 (RRP), 68 F.3d 554,
560–61 (2d Cir.1995) (same); Wilson v. Dell Financial Services, L.L.C., No. 5:09-cv-00483, 2010
WL 503093 (S.D.W. Va. Feb. 8, 2010) (the unavailability of the chosen arbitrator will invalidate
the agreement only if the choice of forum is an integral part of the agreement to arbitrate, as
As illustrated by the case law cited above, the entirety of the arbitration clause will be
discarded when the parties agreed to arbitrate before one specific forum or a particularly named
arbitrator which is unavailable. Ruiz, 156 F. Supp. 3d at 183. In other words, pursuant to the
“integral” test, an arbitrator selection provision is not severable if it specifies a particularly named
forum or arbitrator and that specific forum or arbitrator is central to the parties’ intent to arbitrate.
The invalidated arbitrator selection provision of the Appeal Regulations, Article 1, granted
the President of the WBO the authority to appoint arbitrators, but it did not specify the name of
any arbitrator nor did it require that the arbitrators be members of a specific forum or arbitrator
pool. The arbitrator selection provision allowed the President to literally name anyone (except
members of the Executive Committee) who had experience and knowledge in the boxing industry.
Thus, the parties’ intention was not to arbitrate before a specific forum, arbitration panel or
There is no basis, based upon the relevant case law, to invalidate the balance of the
supplemental and auxiliary arbitrator selection provision contained in Article 1 of the supplemental
Appeal Regulations supplementing the arbitration agreement was invalidated. See McMullen v.
Meijer, Inc. (II), 166 F. App’x. 164, 168–69 (6th Cir. 2006) (concluding that, after interpreting the
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contract, the parties evidenced their intent that the arbitral process was not to be sacrificed even
though the arbitrator selection clause was invalid and there was no severability clause.); 2 Domke
on Com. Arb. § 24:3 (“The designation of an arbitrator is only a step in furtherance of the basic
agreement to arbitrate; the intent to arbitrate is dominant.”). Doing so would contravene the
parties’ main intention to promptly arbitrate their disputes before knowledgeable and experienced
individuals of an industry.
allows for the severability of the arbitrator selection provision. The First Circuit Court of Appeals
has held that, when a savings clause is incorporated in the agreement, the parties’ intention to
arbitrate must be enforced even when a portion of the clause is severed. See Anderson v. Comcast
Corp., 500 F.3d 66, 77 (1st Cir. 2007) (holding that the savings clause allows the arbitration to go
forward after severing a statute of limitations provision to preserve “the viability of the arbitral
forum”); Kristian v. Comcast Corp., 446 F.3d 25, 62–63 (1st Cir. 2006) (holding that the savings
clause specifically anticipates the severance of the class arbitration bar, which is a significant
portion of the arbitration clause, and explaining that “by applying the savings clause and severing
the class arbitration bar, we are actually saving the arbitral forum-an outcome consistent with the
federal policy favoring arbitration.”); see also Cobarruviaz v. Maplebear, Inc., 143 F. Supp. 3d
930, 939 (N.D. Cal. 2015) (concluding that the arbitrator selection provision was not integral to
the arbitration clause taking into consideration the existence of a severability clause.). By including
this savings clause the parties’ intention to arbitrate their disputes is protected regardless if the
In particular, the savings clause of the Championship Regulations allows the severability
of Article 1 of the Appeal Regulations because the Appeal Regulations were incorporated by
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reference in Section 35(e) of the Championship Regulations. See, e.g., GGNSC Louisville Mt.
Holly, LLC v. Mohamed-Vall, No. 3:16-CV-136-DJH, 2016 WL 9024811, at *5 (W.D. Ky. Apr.
6, 2016) (holding that because the “arbitration agreement contains a severability clause, … the
agreement is still valid although the incorporated reference to NAF [“National Arbitration
Forum”] is unenforceable”). Even if there was no savings clause, the arbitrator-selection provision
on Article 1 of the Appeal Regulations is still severable because it is not integral to the arbitration
provisions of the Championship Regulations. See McMullen (II), 166 F. App'x at 168 (holding that
the arbitrator-selection clause is severable despite the fact that there was no savings clause in the
agreement).
From a practical standpoint, regardless of how the arbitrators are selected, the parties
intended to arbitrate their disputes in a prompt matter, even within thirty days following the referral
of the Complaint to the WBO President. See Article 35(e) of the Championship Regulations and
Article 7 of the Appeal Regulations. In a case like this one where rankings and championships are
at stake, it is essential for parties (and even for non-parties) to solve the dispute in a prompt manner.
The parties should not need to wait months or even years for the resolution of the disputes, which,
may be the time it may takes for a case to go to trial in a judicial forum.
Additionally, the invalidation of the arbitrator selection provision of Article 1 of the Appeal
Regulations does not render the whole Appeal Regulations of no force or effect. Arbitration may
still be achieved by enforcing Section 35(e) of the Championship Regulations including the Appeal
Regulations (excluding the invalid arbitrator selection provision contained in its Article 1). The
arbitrator selection provision may simply be substituted by another arbitrator selection mechanism,
allowing the parties to resolve their disputes over the selection of arbitrators by selecting arbitrators
with knowledge and experience in world championship professional boxing and in the application
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of world championship boxing regulations. Based on the above, the parties’ intent was to arbitrate
their disputes which may be achieved without the Appeal Regulations’ arbitrator selection clause.
See §§, 742 F. Supp. at 1376 (Concluding that the parties agreed to resolve the disputes through
arbitration following certain regulatory procedures which may be followed with or without the
Certainly, the WBO does not have a monopoly over the designation of arbitrators with the
knowledge and experience necessary to arbitrate championship boxing disputes. See id., at 1376
(explaining that an entity does not have a monopoly on the skills necessary to arbitrate disputes
arising from securities transactions). There are other organizations and individuals outside of the
WBO that possess such experience and knowledge, including, for example: attorneys and former
Although the President of the WBO can no longer appoint arbitrators in this case, the
parties (or the Court) are not precluded from appointing qualified arbitrators and should be allowed
to find a prompt resolution to their controversies through arbitration. Thus, the parties’ intention
to arbitrate before experienced and knowledgeable arbitrators, pursuant to the local and federal
arbitration acts, should be upheld. See Ruiz, 156 F. Supp. at 183 (“The equitable result, then, is to
sever the arbitrator selection provision while retaining the essence of the parties' agreement: to
B. The Federal Policy Favoring Arbitration through Qualified and Expert Arbitrators
When determining whether the arbitrator selection clause is severable, the Court of Appeals
also instructed the parties and the District Court to consider the federal policy favoring arbitration.
See Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226 (1987) (explaining that the Federal
Arbitration Act (“FAA”) establishes a federal policy favoring arbitration, which requires the courts
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to “rigorously enforce agreements to arbitrate.”); World Films, Inc. v. Paramount Pict. Corp., 125
D.P.R. 352, 358-361, P.R. Offic. Trans., 1990 WL 657504 (1990) (explaining that there is a
presumption of arbitrability and any doubt regarding the scope of the arbitrability of the
Consistent with that policy, the FAA enables arbitration, and its Section 5 provides:
9 U.S.C. § 5 (emphasis added). Section 5 of the FAA supplements arbitration clauses if no method
is provided by the parties to pursue the arbitration. Green v. U.S. Cash Advance Illinois, LLC, 724
F.3d 787, 792 (7th Cir. 2013); see also Khan, 669 F.3d at 354 (pursuant to the FAA’s policy
favoring arbitration, if the parties’ arbitrator selection was not integral to the arbitration agreement,
the FAA requires the appointment of a substitute arbitrator when the arbitrator designated by the
parties was unavailable). If the arbitrator selection provision is severed and the parties are left
“without a mechanism for selecting an arbitrator, this is not fatal.” Ruiz, 156 F. Supp. 3d at 183.
Section 5 of the FAA provides that “if no method [for appointing an arbitrator] be
provided [in an agreement], or if a method be provided and any party thereto shall
fail to avail himself of such method, or if for any other reason there shall be a lapse
in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then
upon the application of either party to the controversy the court shall designate and
appoint an arbitrator or arbitrators or umpire, as the case may require.” 9 U.S.C. §
5; see also Green v. U.S. Cash Advance Ill., LLC, 724 F.3d 787, 792–93 (7th
Cir.2013). Thus, if necessary, the Court could appoint an arbitrator. But it thinks
(and hopes) that such direct involvement is unnecessary. Now that the Court has
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made clear that it will compel arbitration, it is confident the parties will be able to
find a mutually satisfactory selection mechanism. The obvious solution is the one
the Associations have already agreed to: Ruiz picks one arbitrator, the
Associations pick another, and those two arbitrators pick a third. But the parties
are free to choose a different method. And if the parties cannot agree on a method
within 30 days, either party may make an application under FAA § 5.
When selecting the arbitrators, Section 35(e) of the WBO Championship Regulations
requires that an arbitrator “be experienced with the application of World Championship Boxing
Regulations and have special knowledge and experience in World Championship Professional
Boxing.” This is a standard type of provision when it comes to selecting arbitrators. See 2 Domke
on Commercial Arbitration § 24:8 (“It is important that the individual be knowledgeable in his
field…” and have “specialized technical knowledge involved in the matters before arbitration.”)
Precisely, parties tend to arbitrate their disputes because arbitrators are generally highly qualified
and knowledgeable experts in an industry or field. See Morelite Constr. Corp. v. New York City
Dist. Council Carpenters Benefit Funds, 748 F.2d 79, 83 (2d Cir. 1984) (“parties agree to arbitrate
precisely because they prefer a tribunal with expertise regarding the particular subject matter of
their dispute”); Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 679 (7th Cir. 1983) (parties
If the parties are unable to select qualified arbitrators, the Court may intervene. See
Odyssey Reinsurance Co. v. Certain Underwriters at Lloyd's London Syndicate 53, 615 F. App'x
22, 23 (2d Cir. 2015) (the FAA requires the Court to appoint arbitrators if a party contests the
Ric-Man Const., Inc., 304 Mich. App. 46, 60 (2014) (“Pursuant to FAA § 4 and 5, plaintiff may
enforce the precise language of the arbitration contract relating to the qualifications of the
arbitrators…”); Serv. Partners, LLC v. Am. Home Assur. Co., No. CV-11-01858-CAS EX, 2011
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WL 2516411, at *3 (C.D. Cal. June 20, 2011) (disputes over the qualifications of named arbitrators
fall under the FAA); In re The Travelers Indem. Co., No. CIV. 3:04 MC 196 (TPS, 2004 WL
2297860, at *2 (D. Conn. Oct. 8, 2004) (“in choosing a neutral arbitrator under 9 U.S.C. § 5, the
court must select the most qualified candidate.”); Citrin v. Erikson, 918 F. Supp. 792, 798–99
(S.D.N.Y.1996) (in selecting a particular arbitrator, the court considered that he was
Considering that Section 35(e) of the WBO Championship Regulations is valid and
pursuant to the federal policy favoring arbitration, the WBO requests this Honorable Court to
exercise its authority under 9 U.S.C. § 5 to appoint (or allow the parties to appoint) qualified
arbitrators that have the required expertise and experience in championship boxing and its
regulations. To facilitate this process, the parties could provide a list of qualified potential
arbitrators and their qualifications for the Court (or for the parties themselves) to select from. Also,
the parties could provide a list of unbiased organizations that could assist in the arbitrator
Additionally, to facilitate the process, the WBO proposes that each party should name one
arbitrator knowledgeable in world championship professional boxing, and that those two selected
arbitrators agree upon and appoint a third arbitrator to be chairperson of the panel with such
experience that would qualify that person to serve as the chairperson. See 2 Domke on Commercial
Arbitration § 24:1 (“The arbitrator may either act alone, as the sole arbitrator, or there may be a
tribunal of arbitrators, usually three, to hear disputes. Often, when the parties have decided on a
tribunal of arbitrators, each party will appoint an arbitrator and the third arbitrator will be selected
by the two party-appointed arbitrators or by the parties.”) Lastly, since only Article 1 of the Appeal
Regulations was invalidated by the Court of Appeals, the WBO requests that the parties and
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selected arbitrators follow the remaining processes established in the Appeal Regulations, as
applicable.
C. The Interplay between the Federal Policy Favoring Arbitration and State Law
1. The Puerto Rico Commercial Arbitration Act and its Public Policy Favoring Arbitration
The Puerto Rico Commercial Arbitration Act, Section 5, which partially mirrors Section 5
On petition of any of the parties to the arbitration agreement and upon notice thereof
to the other parties, the court shall appoint one or more referees in any of the
following cases:
(a) When the arbitration agreement does not stipulate the manner of appointing
same.
(b) When the arbitration agreement stipulates the manner of appointing referees,
but none of them has been appointed and the term within which they should have
been appointed has expired.
(c) When a referee fails to act or is unable to act, and his successor has not been
duly appointed.
(d) The court shall, in its discretion, appoint one (1) or three (3) referees, according
to the importance of the dispute involved in any of the preceding cases in which the
agreement is silent as to the number of referees.
The referees appointed by the court shall have the same powers as if appointed in
conformity with the arbitration agreement.
Like the FAA, Section 5 of the Puerto Rico Arbitration Act grants authority to the Court
to, upon the parties’ request, appoint one or more arbitrators if the arbitration clause establishes
the manner to appoint the same, but they have not been yet named and the period to appoint them
has expired. Doral Bank v. MAPFRE PRAICO Ins. Co., No. KLCE201300859, 2013 WL
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5798665, at *4 (P.R. Cir. Sept. 20, 2013).3 Considering the similarities between this Section and
FAA’s Section 5, both statutes provide this Honorable Court with the authority to appoint
arbitrators (or allow the parties to furnish this process). Parallel with the Federal policy favoring
arbitration, the Puerto Rico Supreme Court has also recognized a “policy of favoring arbitration”
in Puerto Rico. Sonic Knitting Indus. v. I.L.G.W.U., 106 D.P.R. 557, 6 P.R. Offic. Trans. 783, 811
(1978) (on reconsideration); see also Sears Roebuck & Co. v. Herbert H. Johnson Assoc., Inc.,
325 F. Supp. 1338, 1340 (D.P.R. 1971) (“In Puerto Rico there is a strong public policy favoring
In view of the above, under Puerto Rico law “[t]he parties have ample liberty to incorporate
into the submission agreement the qualifications they deem proper, and the arbitrator is bound to
comply with them.” Rivera v. Samaritano & Co., 108 D.P.R. 604, 8 P.R. Offic. Trans. 640, 643–
44 (1979); see also Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 685 (2010) (The
benefits of arbitration are: “lower costs, greater efficiency and speed, and the ability to choose
The Puerto Rico Arbitration Act provides for the challenge of arbitrators. See 32 P.R. Laws
Ann. § 3209 (“The referees may be challenged only for reasons arising after the arbitration
compromise or unknown at the time of the arbitration.”) Pursuant to the above, the parties may
require arbitrators to meet certain qualifications, including the ones established on Section 35(e)
of the Championship Regulations, and if they don’t meet such criteria, they could be removed.
When determining whether a provision of a contract is severable, the courts must examine
the provisions of the applicable state law. Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 674
3
See Certified translation to English attached.
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(6th Cir.2003). Under Puerto Rico Law, agreements must generally be interpreted pursuant to
Article 1207 of the Civil Code, 31 P.R. Laws Ann. § 3272, “which permits the contracting parties
to establish the agreements, clauses, and conditions convenient to them as long as they are not
contrary to laws, morals, or public order.” Flores v. Municipio de Caguas, 114 D.P.R. 521, 14 P.R.
Article 1233 of the Puerto Rico Civil Code provides that “[i]f the terms of a contract are
clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its
stipulations shall be observed.” 31 P.R. Laws Ann. § 3471. Moreover, “[i]f the words should
appear contrary to the evident intention of the contracting parties, the intention shall prevail.” Id.
When contractual terms are not clear, “[t]he interpretation of [such] obscure stipulations of a
contract must not favor the party occasioning the obscurity.” 31 P.R. Laws Ann. § 3478. When
interpreting a contract, the Courts must consider that “[w]hen the parties enter into a contract they
do so to make their covenants and agreements effective, and not seeking illusory or empty
declarations.” Caguas Plumbing v. Cont'l Const. Corp., 155 D.P.R. 744, P.R. Offic. Trans., (2001);
quoting Morales Garay v. Roldán Coss, 110 D.P.R. 701, 707 [10 P.R. Offic. Trans. 909, 917]
(1981).
The arbitration clause in Section 35(e) of the Championship Regulations is clear, free from
any ambiguity, and does not have any obscure stipulations. It clearly reflects the parties’ intention
to arbitrate the disputes at hand in an expedited manner, before a panel of arbitrators with
knowledge and experience in world championship professional boxing and following the FAA
and/or Puerto Rico Arbitration Act guidelines, both of which allow for the arbitration process to
move forward in this case. That is clearly the intention of the parties and can be achieved with or
without the arbitrator selection provision. Therefore, the arbitrator selection provision is severable.
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See, e.g., McCrillis v. Aut. Navieras de P.R., 123 D.P.R. 113, 23 P.R. Offic. Trans. 109 (1989)
(interpreting an agreement with a severability provision and voiding only certain parts of the
contract); Cherena v. Coors Brewing Co., 20 F. Supp. 2d 282, 288 (D.P.R. 1998) (declaring null
and void one clause containing the non-competition covenant and enforcing the severability clause
Therefore, given the parties’ clear and unambiguous intention to arbitrate and the
severability Clause provided for in Section 36 of the WBO Rules, the WBO respectfully moves
this Honorable Court to confirm the severability of the Arbitrator Selection Clause, and allow the
parties the opportunity to agree on the arbitration panel selection. In the alternative, the WBO
requests the Court pursuant to 9 U.S.C. § 5 to appoint the panel, following Section 35(e)
requirements of the Championship Regulations naming persons experienced with the application
of boxing regulations and with special knowledge and experience in world championship
professional boxing.
IV. CONCLUSION
Most federal Circuit Courts of Appeals agree that the “integral” test should be used to
evaluate the severability of an arbitrator selection clause. Under this test, courts evaluate whether
the arbitrator selection provision is integral or central to the parties’ agreement to arbitrate and, if
it is the invalidation of such a provision precludes the courts from compelling arbitration. Under
this test, Courts have invalidated arbitration clauses in their entirety when an arbitrator or forum
The WBO regulations do not identify or name a special arbitrator and do not specify an
arbitration forum. Instead, the WBO regulations―in, Article 1 of the Appeal Regulations― allow
the appointment of arbitrators (except members of its Executive Committee) so long as they have
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experience and knowledge regarding the regulations of world championship professional boxing.
It is merely a procedural mechanism to select arbitrators, which can be easily substituted by many
other methods of selection of an arbitration panel either agreed to by the parties or as ordered by
Court.
material provision in the Championship Regulations arbitration clause because it is not included
in it but was merely incorporated by reference from another WBO regulation, namely, the Appeal
Regulations. Therefore, the designation of the actual arbitrators’ and their individual identities
Considering the above and in consideration of the federal policy favoring arbitration, the
arbitrator selection clause is perfectly severable from the other arbitration provisions contained
within the WBO regulations as provided for by, the savings clause in Section 36 of the
Championship Regulations, the WBO respectfully submits that the arbitration should be allowed
to move forward and the parties should be allowed the right to pursue their objective to arbitrate
the claims at hand, in a prompt manner, before a panel of arbitrators with knowledge and
experience in world championship professional boxing and following the FAA and/or Puerto Rico
The parties may advance the process by providing a list of qualified and unbiased
arbitrators, including former arbitrators, experts, and/or attorneys. If the parties do not reach an
agreement on the panel selection, they are still able to pursue arbitration, even without the
arbitrator selection clause, as the Federal Arbitration Act, Section 5, and 9 U.S.C. § 5 authorizes
the Court to appoint qualified arbitrators. In either event, the arbitrators must meet the experience
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and expertise requirements from Section 35(e) of the Championship Regulations, which has not
WHEREFORE, the WBO respectfully requests that this Honorable Court deems the
WBO in compliance with its order contained in Docket No. 92 and order the parties to arbitrate
the disputes at hand after each party provides a list of qualified arbitrators, each party selects an
arbitrator from those lists, and those arbitrators select a third arbitrator that would serve as the
chairperson. In the alternative or if the parties are unable to timely select the arbitrators, the WBO
requests this Honorable Court to name the panel members, pursuant to Sec. 5 of the FAA, 9 U.S.C.
§ 5. Lastly, the WBO requests that the parties be bound by any and all enforceable and applicable
portions of the arbitration provisions contained in the WBO’s regulations that operate
RESPECTFULLY SUBMITTED.
WE HEREBY CERTIFY that on this same date we electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system which will send notification of such filing to the
attorneys of record.
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