Isaac Payne v. Savannah College of Art and Design, Inc.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11556
____________________
ISAAC PAYNE,
Plaintiff-Appellant,
versus
SAVANNAH COLLEGE OF ART AND DESIGN, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-05000-JPB
____________________
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2 Opinion of the Court 22-11556
Before BRANCH and L UCK , Circuit Judges, and BERGER , District
Judge.∗
BRANCH, Circuit Judge:
Isaac Payne sued The Savannah College of Art and Design,
Inc. (“SCAD”) for race discrimination and retaliation after he was
fired from his job as Head Fishing Coach. As part of his
employment onboarding, however, Payne signed a document
agreeing to arbitrate—not litigate—all legal disputes that arose
between him and SCAD. Accordingly, SCAD moved to dismiss and
compel arbitration. The district court, approving and adopting the
magistrate judge’s Report and Recommendation (“R & R”),
granted SCAD’s motion.
On appeal, Payne argues that the district court erred by
ignoring that his agreement with SCAD was unconscionable and
that SCAD waived its right to arbitrate. He also argues that the
district court abused its discretion in rejecting his early discovery
request. SCAD counters that (1) Payne freely agreed to a
substantively fair arbitration provision, (2) SCAD never waived its
right to arbitrate, and (3) the district court correctly denied Payne’s
discovery request. After careful review, and with the benefit of oral
argument, we affirm the district court’s order granting SCAD’s
motion to dismiss and compel arbitration.
∗ The Honorable Wendy Berger, United States District Judge for the Middle
District of Florida, sitting by designation.
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22-11556 Opinion of the Court 3
I. Background
A. Facts
The factual details of Payne’s firing do not affect this appeal.1
Instead, we focus on the facts surrounding his hiring and
onboarding, particularly the details of his arbitration agreement
with SCAD.
After accepting the Head Fishing Coach position in August
2015, Payne attended a new hire orientation. At the orientation,
Payne signed numerous employment documents, including the
Staff Handbook Acknowledgement.2
The Staff Handbook Acknowledgment provided: “I . . .
acknowledge that I understand that the Staff Handbook contains
current policies of SCAD, and I agree to read and comply with the
policies contained in the handbook, including the Alternative
Dispute Resolution Policy and Agreement . . . .” The
1 Payne, a black man, alleged that he was fired because of his race and because
he reported race-based abuse and threats by white student-athletes to SCAD
leadership. Payne further alleged that when he reported these incidents,
parents of the student-athletes campaigned to have him fired and SCAD
complied. SCAD, in part through a declaration from its Executive Director of
Human Resources, countered that Payne was fired for numerous non-race-
related reasons. Because we ultimately affirm the district court’s approval of
SCAD’s motion to dismiss and compel, the factual details of Payne’s firing are
best considered during arbitration.
2 Payne declared that he “do[es] not remember exactly what [he] signed”
because he was “rushed,” but he admitted that it was his signature on the Staff
Handbook Acknowledgment.
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4 Opinion of the Court 22-11556
Acknowledgment further referred to the Alternative Dispute
Resolution Policy and Agreement (“ADRPA”) as “binding on SCAD
and [SCAD’s employee] as written, unless revised following the
procedures set out in the ADRPA.”
The ADRPA was included in the sixty-four-page Staff
Handbook. The ADRPA began with a bolded title and spanned
three double-columned pages. In pertinent part, the ADRPA
provided:
• “[The ADRPA] involves an internal review,
mediation and binding arbitration to resolve all
legal disputes that may arise between SCAD
and an employee.”
• “The term ‘Dispute’ as used in this ADRPA
encompasses and includes all legal claims or
controversies between SCAD and any
employee . . . including, but not limited to,
claims arising in contract, tort, fraud, property,
statutory or common law claims, or equitable
claims.”
• “If the parties are unable to resolve the Dispute
through [internal review and then] mediation,
then such Dispute may be submitted to
arbitration at the election of either the
[e]mployee or SCAD . . . .”
• “The parties agree that the arbitration shall be
conducted in accordance with and subject to,
the rules and procedures set forth in the
Arbitration Procedures.”
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22-11556 Opinion of the Court 5
• “The parties will mutually agree on an
arbitrator, who must be a retired federal judge
unless a retired federal judge is not available to
hear the dispute in a timely manner. The
selected arbitrator must have a minimum of 5
years[’] experience in the substantive practice
area of the Dispute or in arbitrating similar
types of Disputes.”
• “In making his/her award, the arbitrator shall
require the non-prevailing party to bear the
cost of the arbitrator’s fees, provided however,
that SCAD will advance the cost of the
arbitrator’s fees at the initiation of the
arbitration, subject to reimbursement by the
employee following arbitration if the
employee does not prevail.”
The ADRPA also included an electronic link (as well as
information on where physical copies could be obtained) to the
second important document in this case, the Arbitration
Procedures.3 The Arbitration Procedures supplemented the
ADRPA by providing additional details about the arbitration
process.4
3 The ADRPA also allowed the losing party to appeal the arbitrator’s decision
to a second arbitrator.
4 The ADRPA and Arbitration Procedures work hand-in-hand and, for the
most part, supply the same provisions. On one issue, the location of the
arbitration, the magistrate judge determined that the ADRPA and Arbitration
Procedures contradicted one another. Accordingly, the magistrate judge
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6 Opinion of the Court 22-11556
We next outline Payne’s pertinent factual allegations.
Payne declares that, in the event he would lose at arbitration,
he could not afford to pay the arbitrator’s fees. To supplement this
contention, Payne provides declarations from Professor Imre
Szalai, who declares that an arbitrator’s fees in a case such as
Payne’s could range from $9,000 to $39,600, with the caveat that
“[a] retired federal judge’s rates may be higher,” and Darnell
Holcomb, who declares that he was fired from SCAD and the risk
of paying significant arbitration costs discouraged him from
continuing his discrimination case against SCAD.
Payne, as relevant to his waiver argument considered below,
also emphasizes the details of SCAD’s dealings with Noah
Pescitelli, a scholarship-receiving member of the fishing team, who
resigned from the team after Payne was fired. Pescitelli had
allegedly complained to SCAD leadership “about some of the same
issues [Payne] had sought SCAD leadership’s help in resolving.”
After his resignation, “SCAD approached [Pescitelli] to ask if he and
his family would sign a ‘Confidential Settlement Agreement’ in
exchange for a scholarship of $36,630.”5 Pescitelli did not sign the
agreement.
severed the provision that was more favorable to SCAD, making the provision
more favorable to Payne the operative provision.
5 SCAD argued below that Payne’s statements about the negotiations between
SCAD and Pescitelli were hearsay. SCAD also contended that Payne had the
facts wrong and that the confidentiality agreement offered to Pescitelli was in
no way related to Payne or his potential legal action against SCAD. As
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22-11556 Opinion of the Court 7
B. Procedural History
Before filing this lawsuit, Payne sent SCAD a demand letter
providing that he was “prepared to file litigation in federal court”
if SCAD was not willing to settle for a certain amount. SCAD’s
initial response referenced Payne’s “binding arbitration agreement
with SCAD.” SCAD later provided a copy of Payne’s “signed
agreement to be bound by SCAD’s [arbitration] policy and
procedures, as well as a copy of the [arbitration] procedures
manual.” Despite SCAD reiterating that Payne had previously
agreed to arbitration, Payne filed suit in the Northern District of
Georgia.
After a series of motions and orders,6 SCAD filed its Motion
to Dismiss and Compel Arbitration (“MTD/MCA”). Payne then
filed a Motion to Take Limited Early Discovery on Issues of
Arbitrability (“Discovery Motion”). The magistrate judge’s R & R
support, SCAD provided a declaration from Dr. Phil Aletto, SCAD’s Senior
Vice President for Admission and Student Success, that discussed SCAD’s
process of disbanding the fishing teams. Aletto declared that “all then-current
members of the Fishing Teams” were offered “to maintain and continue
[their] athletic scholarships,” but such an offer did not extend to Pescitelli
because “he had already quit the Fishing Teams.” Accordingly, when
Pescitelli threatened legal action against SCAD, “SCAD offered to reinstate
[Pescitelli’s] athletic scholarship . . . in exchange for a general release of claims
reflected in a proposed settlement agreement” that included “a standard
confidentiality clause.”
6 The procedural complexities preceding the magistrate judge’s R & R are not
important to this appeal.
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8 Opinion of the Court 22-11556
recommended that SCAD’s MTD/MCA be granted, and Payne’s
Discovery Motion be denied.
The district court adopted the R & R, noting that the R & R
was “thorough” and “carefully addressed each of the parties’
contentions.” In pertinent part, the district court agreed that
(1) the arbitration agreement was not unconscionable,7
(2) SCAD—by offering a settlement agreement to Pescitelli—did
not waive its rights to arbitrate its dispute with Payne, and
(3) Payne’s Discovery Motion should be denied.8 Accordingly, the
district court ordered Payne to submit his dispute to arbitration.
Payne appeals.
II. Standard of Review
“We review de novo an order granting a motion to dismiss a
complaint and compel arbitration.” Young v. Grand Canyon Univ.,
Inc., 980 F.3d 814, 818 n.3 (11th Cir. 2020).
“We review the [d]istrict [c]ourt’s ruling on discovery
matters only for abuse of discretion.” Khoury v. Miami-Dade Cnty.
7 Payne’s unconscionability argument was multi-faceted. He argued that the
ADRPA was unconscionable because (1) its cost-shifting provision carried
potentially significant costs that inhibited his ability to vindicate his rights,
(2) its arbitrator-selection provision limited the pool of arbitrators to two
white men, (3) it contained a confidentiality provision, and (4) it included
provisions that were indefinite, non-conspicuous, and non-mutual.
8 The R & R concluded that “[t]here [was] not good cause for allowing
[Payne’s] discovery [requests]” because his “waiver arguments to which [his]
discovery requests relate[d] unequivocally fail[ed].” The district court agreed.
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22-11556 Opinion of the Court 9
Sch. Bd., 4 F.4th 1118, 1125 (11th Cir. 2021). “District judges are
accorded wide discretion in ruling upon discovery motions, and
appellate review is accordingly deferential.” Harris v. Chapman, 97
F.3d 499, 506 (11th Cir. 1996).
III. Discussion9
Payne brings four arguments on appeal. First, Payne
contends that the district court erred in determining that the
ADRPA is not unconscionable. Second, and relatedly, Payne argues
that the agreement’s unconscionable provisions should not be
severed from the agreement; rather, he contends that the entire
agreement is unenforceable. Third, Payne argues that the district
court erred in determining that SCAD did not waive its right to
arbitrate. Fourth, Payne argues that the district court erred in not
permitting him to take early discovery on issues of arbitrability. We
address each argument in turn.
A. Unconscionability
Payne argues that the arbitration agreement is
unconscionable for a number of reasons. First, Payne argues that
the cost-shifting provision is substantively unconscionable because
the risk of having to pay the arbitrator’s fees will force him to
abandon his claim; thus, the provision prevents him from
vindicating his rights. Second, Payne argues that the arbitrator-
9 The parties’ 2015 agreement is the operative arbitration agreement. The
ADRPA allowed SCAD to modify the agreement as long as it provided 30
days’ written notice to its employee. SCAD’s attempted amendment in 2019
failed because it did not provide Payne the required notice.
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10 Opinion of the Court 22-11556
selection provision is substantively unconscionable because it limits
the pool of arbitrators to two white men, which he argues
undermines the neutrality of any potential proceeding. Third,
Payne argues that the agreement is procedurally unconscionable as
evidenced by a number of provisions that are either indefinite or
non-mutual.
The unconscionability standard is hard to satisfy under
Georgia law.10 The Supreme Court of Georgia has described an
unconscionable contract as “one that no sane man not acting under
a delusion would make and that no honest man would take
advantage of, one that is abhorrent to good morals and conscience,
and one where one of the parties takes a fraudulent advantage of
another.” Innovative Images, LLC v. Summerville, 848 S.E.2d 75, 83
(Ga. 2020) (quotations omitted); see also BMW Fin. Servs. N.A., Inc.
v. Smoke Rise Corp., 486 S.E.2d 629, 630 (Ga. Ct. App. 1997)
(concluding that a contract provision was not unconscionable
because it did not “shock the conscience,” among other
considerations). “Under Georgia law, procedural
unconscionability addresses the process of making the contract,
10 The parties agree that Georgia law governs but disagree over the proper
Georgia law standard for unconscionability. Whereas SCAD contends that
“Georgia law requires both procedural and substantive unconscionability for
a contract to be struck down as unconscionable,” Payne argues that “both
need not be present in the same quantum to render a contract
unconscionable.” Because we ultimately conclude that the arbitration
agreement is neither procedurally nor substantively unconscionable, we need
not resolve this dispute over Georgia law because Payne fails to prove
unconscionability under either standard.
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22-11556 Opinion of the Court 11
while substantive unconscionability looks to the contractual terms
themselves.” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1377
(11th Cir. 2005) (alteration adopted and quotation omitted).
As for procedural unconscionability, well-established
Georgia law provides that “the mere existence of an arbitration
clause does not amount to unconscionability.” Saturna v. Bickley
Constr. Co., 555 S.E.2d 825, 827 (Ga. Ct. App. 2001) (quotation
omitted). Rather, “where . . . a binding arbitration agreement is
bargained for and signed by the parties, it is the complaining party
that bears the burden of proving that it was essentially defrauded
in entering the agreement.” Innovative Images, 848 S.E.2d at 83.
Factors that play a role in the procedural unconscionability
determination include the “age, education, intelligence, business
acumen and experience of the parties, their relative bargaining
power, the conspicuousness and comprehensibility of the contract
language, the oppressiveness of the terms, and the presence or
absence of a meaningful choice.” NEC Techs., Inc. v. Nelson, 478
S.E.2d 769, 772 (Ga. 1996).
“As to the substantive element of unconscionability, courts
have focused on matters such as the commercial reasonableness of
the contract terms, the purpose and effect of the terms, the
allocation of risks between the parties, and similar public policy
concerns.” Id.
With this legal framework in mind, we address Payne’s
various unconscionability arguments.
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12 Opinion of the Court 22-11556
i. Substantive Unconscionability
We start with substantive unconscionability.
a. Cost-Shifting Provision
The ADRPA’s cost-shifting provision provides:
In making his/her award, the arbitrator shall require
the non-prevailing party to bear the cost of the
arbitrator’s fees, provided however, that SCAD will
advance the cost of the arbitrator’s fees at the
initiation of the arbitration, subject to
reimbursement by the employee following
arbitration if the employee does not prevail.
Payne alleges that this provision is substantively unconscionable
because it “serves no purpose other than . . . dissuad[ing] potential
claimants from pursuing their rights under the law.” Payne’s
evidence included a law professor’s declaration that calculated the
likely costs of arbitrating Payne’s claims, Payne’s own declaration
about the effect that the costs would have on his family, and the
declaration of another employee who arbitrated against SCAD but
withdrew his arbitration allegedly due to the risk of incurring
significant costs if he lost. SCAD counters that the district court
correctly determined that “Payne’s evidence is [too] speculative at
this stage of the litigation” (i.e., Payne may win in arbitration and
would not be required to pay anything) such that his substantive
unconscionability argument must fail under our precedents.
We start with Payne’s argument that our case that rejected a
similar argument against cost-shifting provisions, Musnick v. King
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22-11556 Opinion of the Court 13
Motor Company of Fort Lauderdale, 325 F.3d 1255 (11th Cir. 2003), has
been abrogated in relevant part by the Supreme Court’s holding in
Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008).
In Musnick, we analyzed an arbitration agreement’s “loser
pays” provision that Musnick challenged on the ground that “the
provision . . . awarding costs and fees to the prevailing party
rendered it unenforceable.” 325 F.3d at 1257. We concluded that
Musnick’s challenge failed for the following reasons. To start, we
set out the proper standard: “The party seeking to avoid
arbitration . . . has the burden of establishing that enforcement of
the agreement would preclude him from effectively vindicating
[his] federal statutory right in the arbitral forum.” Id. at 1259
(quotations omitted). Then, we determined that Musnick’s
evidence was “too speculative” to render his agreement
unenforceable because he had not shown that he was likely to lose
his arbitration. Id. at 1260. Stated differently: “Whether Musnick
[would], in fact, incur attorneys’ fees . . . depend[ed] entirely on
whether he prevail[ed] in arbitration. If he [did], he [would] incur
no fees . . . [and would] not have been deprived of any statutory
right or remedy . . . .” Id. at 1261. Next, we also noted that
Musnick’s evidence, which was merely a statement that he feared
he would be unable to pay an award of attorneys’ fees against him,
was “wholly inadequate to establish” that he was inhibited from
vindicating his rights. Id. at 1260. Finally, we buttressed our
analysis by stating that Musnick, if he were to lose, would have the
ability to challenge the arbitrator’s award of attorneys’ fees in
federal court. Id. at 1261 (explaining that “arbitration awards may
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14 Opinion of the Court 22-11556
be vacated if they are in manifest disregard of the law” (quotation
omitted)).
Payne argues that the Supreme Court’s decision in Hall Street
abrogated Musnick “in relevant part” by “severely limit[ing] any
right of appeal to a court.” See Hall Street, 552 U.S. at 590. While
he accurately characterizes Hall Street’s effect on Musnick’s third
point (regarding the losing party’s ability to challenge an arbitral
award in federal court), he is incorrect that Hall Street should end
our reliance on Musnick. 325 F.3d at 1261. In Hall Steet, the
Supreme Court simply limited review of arbitration awards under
the Federal Arbitration Act (“FAA”) to the Act’s textually-provided
avenues—thereby limiting the amorphous “manifest disregard of
the law” category that had developed in prior caselaw.11 Hall Street,
11 Sections 10 and 11 of the FAA provide for limited review of an arbitration
award. 9 U.S.C. §§ 10, 11. For example, Section 10 provides the following
four avenues for challenging an arbitration award:
(a) In any of the following cases the United States court in and
for the district wherein the award was made may make an
order vacating the award upon the application of any party to
the arbitration—
(1) where the award was procured by corruption, fraud,
or undue means;
(2) where there was evident partiality or corruption in the
arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in
refusing to postpone the hearing, upon sufficient cause
shown, or in refusing to hear evidence pertinent and
material to the controversy; or of any other
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22-11556 Opinion of the Court 15
552 U.S. at 585, 590. Following Hall Street, in Frazier v. CitiFinancial
Corp., LLC, we followed suit, foreclosing wide-ranging challenges
to arbitration awards: “We hold that our judicially-created bases for
vacatur are no longer valid in light of Hall Street.” 604 F.3d 1313,
1324 (11th Cir. 2010). See also White Springs Agric. Chems., Inc. v.
Glawson Invs. Corp., 660 F.3d 1277, 1282–83 (11th Cir. 2011)
(declining to review a challenge to an arbitration award because
“[e]ven though [appellant] presents its argument in terms of the
FAA, [appellant] asks us to do what we may not—look to the legal
merits of the underlying award”).
But the linchpin of Musnick—which was unaffected by Hall
Street—is the requirement that appellants demonstrate that they
are likely to bear prohibitive costs (i.e., that their costs are not
merely speculative). Musnick, 325 F.3d at 1261. We have
emphasized this point in our more recent case law. For example, in
Escobar v. Celebration Cruises Operator, Inc., 805 F.3d 1279, 1291 (11th
Cir. 2015), we interpreted Musnick to mean that a plaintiff’s
“[s]peculative fear of high fees” would be insufficient to satisfy his
burden to “prove the likelihood of prohibitive costs.” Thus, post-
misbehavior by which the rights of any party have
been prejudiced; or
(4) where the arbitrators exceed their powers, or so
imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was
not made.
Id. § 10(a).
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Hall Street we have explicitly stated that the likely-to-bear-
prohibitive-costs prong is still intact such that Musnick remains
good law. See, e.g., United States v. Kaley, 579 F.3d 1246, 1255 (11th
Cir. 2009) (“In addition to being squarely on point, the doctrine of
adherence to prior precedent also mandates that the intervening
Supreme Court case actually abrogate or directly conflict with, as
opposed to merely weaken, the holding of the prior panel.” (emphasis
added)).
Putting it all together, for Payne to prove that his arbitration
agreement with SCAD is unconscionable because of the
agreement’s cost-shifting provision, he must provide evidence of
“(1) the amount of fees he is likely to incur and (2) his inability to
pay those fees.” Suazo v. NCL (Bahamas), Ltd., 822 F.3d 543, 554
(11th Cir. 2016) (quoting Escobar, 805 F.3d at 1291 (internal
quotations omitted)). He cannot satisfy the first step. The
“problem” for Payne is that he might win. And if he were to
prevail, SCAD would be required to pay for the arbitration. Thus,
Payne has not shown that he is “likely to incur” any costs
whatsoever and cannot prevail under the standards we have set
forth.12 See Musnick, 325 F.3d at 1261.
Our conclusion is further supported by other
considerations.
12 Payne’s request that we ignore our binding precedent in favor of the law
recited in an out-of-Circuit, district court case, Crespo v. Kapnisis, No. 21-cv-
6963, 2022 WL 2916033 (E.D.N.Y. July 25, 2022), necessarily fails.
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First, we have recognized that an appellant’s rights are less
threatened when an appellant is not required to pay the arbitration
costs up front. See Escobar, 805 F.3d at 1292 (emphasizing that
appellant’s challenge was “premature” because the “cost-splitting
clause state[d] that [appellee] will pay ‘the initial cost of
arbitration’”). Such is the case here where SCAD is advancing the
costs of arbitration.13 That is, Payne will not be excluded from the
arbitral forum, and he will have the ability to vindicate his rights
through the arbitration process to which he agreed.
Second, Payne’s instant appeal is even more speculative
because of a unique feature of the Arbitration Procedures which
provides for an appeal to a second arbitrator: “The awards and
orders of the Arbitrator shall be final and binding unless, within
thirty (30) days of service of the Arbitrator’s final award, a party
serves notice to the other parties of the arbitration of intent to
appeal the Arbitrator’s awards and orders to a second Arbitrator.”
Thus, Payne’s appeal is especially speculative in the sense that (1) he
has brought his case before arbitration can determine the winner
and loser, and (2) even the result of the first arbitration could be
appealed to a second arbitrator. Payne contends that this provision
cuts in his favor because the additional costs of a second arbitration
would further increase the ADRPA’s deterrent effect. But that
13 The ADRPA provided that “[i]n making his/her award, the arbitrator shall
require the non-prevailing party to bear the cost of the arbitrator’s fees,
provided however, that SCAD will advance the cost of the arbitrator’s fees at
the initiation of the arbitration . . . .”
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argument ignores that the second appeal is optional. We look to
this provision only to emphasize the exceptionally speculative
nature of Payne’s complaint at the current stage.
Third, Payne argues that because he provided evidence
extensively detailing the potential costs of arbitration, and the
effect that those costs would have on his livelihood, his claim is less
“speculative” than the generalized grievance in Musnick. 325 F.3d
at 1260 (finding Musnick’s mere recitation that he “genuinely
fear[ed] the imposition of attorney’s fees” because he would be
“unable to pay” “wholly inadequate to establish that the arbitration
would result in prohibitive costs that [would] force him to
relinquish his claim”). True. Payne’s evidence included a law
professor’s declaration that calculated the likely costs of arbitrating
Payne’s claims, Payne’s declaration about the effect the costs would
have on his family, and the declaration of another employee who
withdrew his arbitration claim against SCAD allegedly out of fear
of incurring significant costs if he lost. But Payne conflates the
likelihood that there will be arbitration costs (not a factor under
our precedent) with the likelihood that he will incur those costs (the
touchstone of our analysis).14 Thus, while he must bring evidence
14 Payne also argues that “the cost-shifting is not speculative, as the ADRPA
shifts the arbitrator’s fees . . . to the non-prevailing party, and this is a non-
discretionary contractual obligation.” This argument suffers from the same
conflation. Our precedent is not concerned with whether fees themselves are
“speculative,” but with whether it is “speculative” that the party challenging
the arbitration agreement will be the party that has to pay those fees. Musnick,
325 F.3d at 1261 (“Whether Musnick will, in fact, incur attorneys’ fees in this
matter depends entirely on whether he prevails in arbitration.”) Payne
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22-11556 Opinion of the Court 19
of his potential costs (and he has), such a showing is insufficient
when Payne has not satisfied our primary consideration—showing
that he is “likely” to incur those costs.
Finally, we reemphasize that these terms are part of an
agreement into which Payne voluntarily entered. As such, he has
the burden of establishing that the agreement is substantively
unfair. For the reasons above, Payne has not satisfied his burden,
and we conclude that the cost-shifting provision is not substantively
unconscionable. See Innovative Images, 848 S.E.2d at 83–84.
b. Arbitrator Selection Provision
Payne also contends that the ADRPA is substantively
unconscionable because the arbitrator-selection provision would
“effectively limit the pool of arbitrators to two White men.” Aside
from the fact that Payne’s estimation is questionable, he has cited
absolutely no authority for his contention that it would be
unconscionable for Payne’s arbitration to be conducted by a white
arbitrator. Thus, he has not carried his burden on this point.15
counters that employees often lose employment arbitration disputes, but that
argument is also speculative because generalized statistics do not account for
the individual facts of his case. Indeed, if Payne did not believe his claim was
meritorious, then he would have had little reason to initiate this lawsuit.
15 Payne also argues that “[t]he ADRPA is unconscionable because its method
of selecting arbitrators gives SCAD unilateral control to select the arbitrator.”
The ADRPA, however, provides that “[t]he parties will mutually agree on an
arbitrator,” and this understanding is confirmed in the Arbitration Procedures
that give each party equal rights on proposing and striking potential
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20 Opinion of the Court 22-11556
ii. Procedural Unconscionability
Turning to Payne’s arguments as to procedural
unconscionability, he argues that various terms in the ADRPA and
Arbitration Procedures are either indefinite (i.e., the court is left to
ascertain the intention of the parties by conjecture) or non-mutual
(i.e., the agreement confers certain rights on SCAD but not Payne)
such that the arbitration agreement is procedurally
unconscionable. We disagree, especially in light of the demanding
standard for satisfying procedural unconscionability which requires
“the complaining party” to prove “that it was essentially defrauded
in entering the agreement.” Innovative Images, 848 S.E.2d at 83.
“The law does not favor destruction of contracts on grounds
of uncertainty.” Kitchen v. Insuramerica Corp., 675 S.E.2d 598, 601
(Ga. Ct. App. 2009); see also O.C.G.A. § 13-2-2(4) (“The construction
which will uphold a contract in whole and in every part is to be
preferred, and the whole contract should be looked to in arriving
at the construction of any part[.]”). With that said, “indefiniteness
in subject matter so extreme as not to present anything upon which
the contract may operate in a definite manner renders the contract
void.” Fay v. Custom One Homes, LLC, 622 S.E.2d 870, 872–73 (Ga.
Ct. App. 2005) (alteration adopted and quotation omitted). And
“[a] contract cannot be enforced if its terms are incomplete, vague,
arbitrators. Thus, Payne’s argument fails because it is directly contrary to the
terms of the agreement.
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22-11556 Opinion of the Court 21
indefinite[,] or uncertain.” Aukerman v. Witmer, 568 S.E.2d 123, 126
(Ga. Ct. App. 2002) (quotation omitted).
“Georgia law provides that an arbitration provision is not
unconscionable because it lacks mutuality of remedy.” Caley, 428
F.3d at 1378 (alterations adopted and quotation omitted); see also
Saturna, 555 S.E.2d at 827 (“[T]he fact that [one party] had
additional means of redress available [that were not available to the
other party] did not render the contract unenforceable due to
unconscionability.”). The lack of mutuality is not detrimental
because arbitration is intended to offer “simplicity, informality, and
expedition.” Id. (quoting Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20, 31 (1991)).
a. Indefiniteness
Payne argues that three terms in the ADRPA and Arbitration
Procedures are either ambiguous or contradictory and, therefore,
indefinite.
First, Payne argues that the terms in the respective
agreements governing the selection of an arbitrator are
contradictory.16 Specifically, he points to the Arbitration
16 The terms that Payne points to provide the following:
[ADRPA]: The parties will mutually agree on an arbitrator,
who must be a retired federal judge unless a retired federal
judge is not available to hear the dispute in a timely manner.
The selected arbitrator must have a minimum of 5 years[’]
experience in the substantive practice area of the Dispute or in
arbitrating similar types of Disputes.
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22 Opinion of the Court 22-11556
Procedures’ use of the term “mediator” (rather than arbitrator) in
one instance as proof that the ADRPA and Arbitration Procedures
contradict one another. However, we find the language concerning
arbitration to be clear. That the document may also provide for a
mediator or may include a scrivener’s error does not change our
conclusion. In any event, this small discrepancy is nowhere near
enough to clear the high bar for proving unconscionability under
Georgia law. Innovative Images, 848 S.E.2d at 83; see also O.C.G.A.
§ 13-2-2(4) (“The construction which will uphold a contract in
whole and in every part is to be preferred, and the whole contract
should be looked to in arriving at the construction of any part[.]”).
Second, Payne argues that the ADRPA and Arbitration
Procedures are contradictory because the ADRPA requires an
employee seeking to initiate the dispute resolution process to
“mak[e] a written request to the vice president for human
[Arbitration Procedures]: Within a reasonable time after
receiving the Request for Arbitration, the Vice President of
Human Resources or a designated representative, and the
employee or his/her designated representative, shall each
submit to the other a list of four (4) proposed Arbitrators. The
arbitrator will be selected by mutual agreement of the parties.
When submitting the list of proposed arbitrators, each party
agrees that all proposed arbitrators shall have a minimum of
five (5) years of previous experience or background in the
subject matter of the arbitration. In addition, the parties agree
that the proposed mediators shall include as many retired
federal judges as possible who are available to hear the dispute
in [a] timely manner.
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22-11556 Opinion of the Court 23
resources,” while the Arbitration Procedures require “[a] party
who desires to submit a legal claim to arbitration [to] submit a
completed Request for Arbitration to the College’s Vice President
of Human Resources.” We agree with the magistrate judge’s
analysis that these terms are “not contradictory” because although
“[t]he terms may be worded slightly different[,] . . . they clearly are
referencing the same step in the alternative dispute resolution
process.” This miniscule difference is certainly not “extreme”
enough for Payne’s challenge to prevail. Fay, 622 S.E.2d at 872.
Third, Payne argues that the ADRPA’s “in effect” provision
is ambiguous because it does not specify which agreement will
govern a dispute: “SCAD retains the right to modify or terminate
this ADRPA and the Arbitration Procedures on thirty days’ written
notice. The policy, if any, in effect at the time a request for
mediation and/or arbitration is initiated, will govern the process
by which the Dispute is resolved.” This provision is not ambiguous
in any way; the policy “in effect” was the policy that both parties
agreed to—the 2015 ADRPA and the related Arbitration
Procedures. As stated previously, we agree with the district court
that because SCAD’s attempted amendment in 2019 failed for lack
of notice, the parties’ 2015 agreement is the operative one.
b. Mutuality
Payne also argues that “[t]he ADRPA and [the Arbitration
Procedures] have a number of non-mutual provisions that make
them procedurally unconscionable.” Payne’s main focus is a
provision allowing SCAD (but not its employees) to bypass internal
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24 Opinion of the Court 22-11556
review and mediation and fast-forward the dispute resolution
process to arbitration: “At its option, SCAD may elect to bypass one
or more steps prior to arbitration for Disputes with the employee.”
Although Payne contends that there are “numerous” non-mutual
provisions, he cites only two and his second argument merely
repackages his first.17
Payne’s argument simply cannot survive because although
he indicates that at least one provision (allowing SCAD to bypass
certain dispute resolution steps) provides SCAD a right that is not
also bestowed on him, the cited provision is minor, and similar non-
mutual provisions have passed muster under Georgia law. See
Saturna, 555 S.E.2d at 826–27 (determining that a contract that
provided “additional means of redress” to one party did not render
the contract unconscionable for being non-mutual). We conclude
that the non-mutual provisions are not detrimental to the contract
and Payne was not “essentially defrauded” in entering this
arbitration agreement. Innovative Images, 848 S.E.2d at 83.
* * *
Simply stated, we agree with the district court’s finding that
Payne’s arguments on this small subset of provisions “do not put
17 We note that Payne does not complain about the non-mutual provision that
requires SCAD to advance the costs of the arbitration (i.e., a non-mutual
provision that benefits Payne).
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22-11556 Opinion of the Court 25
the agreement over the very high bar for finding unconscionability
under Georgia law.”18 See Innovative Images, 848 S.E.2d at 83.
B. Waiver
Payne argues that SCAD—by asking Pescitelli (a former
member of the fishing team) to sign a confidentiality agreement
when attempting to resolve a lawsuit threatened by Pescitelli
roughly a year before Payne’s legal action—has somehow waived
its right to arbitrate Payne’s claim. Payne contends that, by
entering or attempting to enter into confidentiality agreements
with student-athletes19 who could participate or provide
information related to Payne’s claims, SCAD has cut Payne off
from effective pre-hearing discovery from third parties. Such
preclusive efforts, in Payne’s view, constitute interference with
third-party litigation and result in waiver of arbitrability.
Our waiver doctrine is typically implicated when parties
have “invoked the litigation machinery” before reversing course
and claiming that arbitration was the proper avenue all along.
Gutierrez v. Wells Fargo Bank, NA, 889 F.3d 1230, 1236 (11th Cir. 2018)
18 Because we conclude that there are no unconscionable provisions in the
ADRPA or the Arbitration Procedures, we need not address Payne’s argument
regarding severability.
19 Payne tries to broaden the scope beyond Pescitelli by arguing that “[t]he
question of whether SCAD entered into confidential settlement agreements
with other former Fishing Team members . . . could only be answered
through discovery.” We do not bite at this last-ditch argument because
Payne’s waiver argument is altogether meritless.
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26 Opinion of the Court 22-11556
(alteration adopted and quotation omitted); see also Morgan v.
Sundance, Inc., 142 S. Ct. 1708, 1711 (2022) (“Sometimes,
[defendants] engage in months, or even years, of litigation—filing
motions to dismiss, answering complaints, and discussing
settlement—before deciding they would fare better in arbitration.
When that happens, the court faces a question: Has the defendant’s
request to switch to arbitration come too late?”).
As an initial matter, Payne asks us to apply our waiver
doctrine in a novel manner.20 We have never held that a party
waives its right to arbitrate based on its actions taken in a previous
legal action—especially when that party did not bring the lawsuit
at bar and has repeatedly insisted that arbitration is the proper
dispute resolution channel. And we decline to do so now. Rather,
because SCAD (1) has not engaged in extensive use of the litigation
process, (2) alerted Payne before he filed suit that his dispute must
be arbitrated, and (3) promptly filed its MTD/MCA, we hold that
SCAD has not waived its ability to insist on arbitrating Payne’s
claim per their agreement.
C. Early Discovery
Payne’s final challenge on appeal is that the district court
“erred in not permitting [him] to take limited early discovery on
issues of arbitrability.” In particular, Payne sought SCAD’s
communications with “prospective witnesses” such as Pescitelli
20 Payne admits as much. He characterizes his wavier argument as one that
“appears to be of first impression.”
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22-11556 Opinion of the Court 27
and details of “SCAD’s past arbitrations with employees and
former employees.” The district court determined that because
each of Payne’s arguments failed, “there [was] no reason to allow
discovery regarding the validity and enforceability of the
arbitration agreement.” We conclude that the district court’s
analysis of the underlying arbitration agreement was sound.
Accordingly, the district court did not abuse its discretion in
overruling Payne’s unnecessary discovery request. Harris, 97 F.3d
at 506 (“District judges are accorded wide discretion in ruling upon
discovery motions, and appellate review is accordingly
deferential.”).
IV. Conclusion
Payne agreed to arbitrate his legal disputes against SCAD.
Attempting to evade his agreement, Payne searches for a legal hook
that will catch him a break. He has not found it; rather, we
conclude that his arbitration agreement is neither substantively nor
procedurally unconscionable, that SCAD did not waive its right to
enforce arbitration, and that the district court did not abuse its
discretion in overruling Payne’s request for early discovery. In
short, we conclude that Payne is bound by his agreement to
arbitrate his legal claims against SCAD.
AFFIRMED.
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