The aftermath of the deadly Astroworld Festival raises fundamental questions about access to courts and how our society should resolve disputes.
Several lawsuits have been filed in court against musician Travis Scott, the entertainment company Live Nation, and other organizers, but it is unclear whether the lawsuits will remain in a public court due to arbitration clauses in the fine print. If someone purchased a ticket through Live Nation’s website, the ticket purchaser is likely bound to arbitrate disputes with Live Nation because of the Terms of Service governing the website.
The procedural protections available in arbitration are limited compared to court procedures. For example, the injured victims or their survivors who are stuck in arbitration generally have no automatic rights to engage in broad discovery, such as by taking depositions of key players involved in organizing or managing the concert, or by requesting access to documents, emails, or videos related to the horrific event. In court, the victims or their survivors would generally be entitled to broad discovery of all relevant evidence, but in arbitration, it can be more difficult to gather evidence of wrongdoing.
Furthermore, the decision of the arbitrator is generally final and binding, even if the arbitrator makes serious errors, while an erroneous court decision is typically subject to appellate review. Also, arbitration is limited to an individual’s claim, and collective or class proceedings are not allowed. However, court proceedings generally provide for class actions.
Wrongful death actions, such as those alleged to arise out of the Astroworld Festival, do not belong in arbitration. One’s right to be free from bodily harm should not depend on a contract or be subject to binding arbitration. The arbitration proceedings and any filings in arbitration will be confidential, so it will be more difficult for the public to learn the full extent of wrongdoing so that the risk of similar tragedies can be avoided or minimized in the future.
When accusations of deadly, wrongful conduct are involved, victims or their survivors should be able to enter the courthouse door to seek justice instead of being stuck in private arbitration.
Our nation’s main arbitration law, the Federal Arbitration Act, is almost 100 years old and was originally designed for contractual or shipping disputes involving merchants. However, for several decades, the United States Supreme Court has ignored the limitations of the Federal Arbitration Act and expanded the application of the statute, far beyond its original text and purpose. Now, all types of claims, such as the wrongful death claims involving the Astroworld Festival, can be subject to arbitration.
Earlier this month, a federal court held that it was powerless to rule on challenges to a mandate for COVID-19 vaccinations at the Los Alamos National Laboratory, and instead, a private arbitrator would hear the claims of workers who are challenging the vaccine mandate. Do we want a private arbitrator, whose decision is virtually unreviewable, to be in charge of making this critical decision involving the vaccine mandate and the laboratory’s workforce in an arbitration proceeding with limited procedural protections? Shouldn’t a public health matter, especially one linked to national security interests at the Los Alamos National Laboratory, be decided by a court or government officials who are publicly accountable and who have broad access to critical evidence or information?
Congress is currently considering the proper scope and role of arbitration in our society. For example, there are pending bills to curtail the use of forced arbitration for workplace disputes, sexual assault claims or claims involving nursing homes. An overhaul of our almost one-hundred-year-old Federal Arbitration Act is long overdue, and it is time for America’s courts to play a stronger role in administering justice.
Imre S. Szalai, the author of books about the Federal Arbitration Act, is the Judge John D. Wessel Distinguished Professor of Social Justice at Loyola University New Orleans College of Law.