Those terms and conditions are for real

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 15

CASES FROM THE WEEK OF APRIL 18, 2025

COURT ENFORCES ARBITRATION CLAUSE EMBEDDED IN ELECTRONIC TICKETS RECEIVED BY THE PLAINTIFF’S MOTHER ON HER PHONE

Miami Dolphins v. Engwiller, 50 Fla. L. Weekly D827 (Fla. 3d DCA Apr. 9, 2025):

The plaintiff was injured at Hard Rock Stadium after a fight broke out among fans after a game in 2022. The plaintiff had attended the game with her boyfriend and her mother. The group received the tickets electronically from her mother’s employer.

Years before, the plaintiff’s mother had created an account through the Dolphins’ Account Manager. Five days before the game, she accepted the tickets from her employer by logging into the Dolphins’ Account Manager website on her mobile phone.

Between the user log-in fields and the sign-in button, the Dolphins Account Manager website displayed a notice about the Terms of Use and the Privacy policies of both Ticketmaster and Hard Rock Stadium.

Those phrases were bolded and hyperlinked appearing in aqua, which is a different color than the rest of the page.

The terms of use hyperlink digitally directed the user to the Hard Rock Stadium ticket terms. Those terms explained that the ticket constituted a revocable license for one-time entry into the stadium. The terms also contained a broad mandatory arbitration provision that required all ticket holders to arbitrate their disputes in Miami with a specifically designated alternative dispute resolution firm.

On the day of the game, the plaintiff’s mother displayed the tickets on her phone so that her daughter and her boyfriend could enter the stadium. There was no dispute that the plaintiff never accessed or possessed the tickets.

After the plaintiff got hurt and sued the defendants, the defendants moved to compel arbitration, contending that the plaintiff’s mother had agreed to the mandatory arbitration provision in the hyperlinked ticket terms when she accessed the tickets using the Dolphins Account Manager website. Defendants asserted that the plaintiff was bound by her mother’s agreement under agency principles.

The trial court had denied the defendants’ motion to compel arbitration. It found that Defendants failed to attach the actual binding agreement and failed to establish an agency relationship between the plaintiff and her mother.

On a hybrid standard of review—the trial court’s legal analysis being reviewed de novo while the factual findings are reviewed for competent, substantial evidence—the court reversed.

Noting that Florida law favors arbitration and that courts have routinely held that any doubt regarding arbitrability of a claim should be resolved in favor of arbitration, the court looked to the three-pronged test, i.e., (1) whether a valid written agreement to arbitrate existed; (2) whether an arbitrable issue existed; (3) whether the right to arbitration was waived.

Because arbitration agreements are contracts, ordinary principles of contract formation apply. Notice and assent are key to a valid contract, and the court wrote that these principles apply to web-based contracts. If a website offers contractual terms to users, and the user engages in conduct that manifests assent to those terms, an enforceable agreement may be formed.

The court noted that there are two types of contracts in electronic transactions: “clickwrap” agreements and “browsewrap” agreements.

A clickwrap agreement exists when a website directs a purchaser to the terms and conditions of the sale and requires the purchaser to “click” a box to acknowledge that they have read those terms and conditions.

A browsewrap agreement exists when a website merely provides a link to the terms and conditions and does not require the purchaser to click an acknowledgment during the checkout process. The purchaser can complete the transaction without visiting the page that contains the terms and conditions.

While a person has no right to shut his or her eyes or ears to avoid information and then say he or she had no notice, the law imposes a heightened burden on a party seeking to enforce agreements that are more akin to browsewrap than clickwrap. Such agreements are enforceable only where the purchaser has actual knowledge of the terms and conditions or where the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice.

Here, the plaintiff’s mother was not required to click an acknowledgment box before she accepted the tickets, so there was no clickwrap agreement. But there was not a browsewrap agreement either.

When the mother logged into her account, she signified her assent to the terms of use. This case did not fit precisely within either category, so the court had to consider whether the hyperlink was sufficiently conspicuous.

The court concluded it was. The website used brightly colored aqua ink, and the text was sufficiently conspicuous and offset to place a reasonable user on inquiry notice.

The court rejected that the tickets were mere exemplars, or that unspecified changes to the terms of use had been made between the time the mother created her account several years before and the time she accepted the relevant tickets, in some way altered its conclusion.

Having found that the contract was “valid,” the court then evaluated whether the plaintiff could be bound to the terms.

A non-signatory may be bound to an arbitration agreement through agency principles. The existence of an agency relationship may be established expressly, by estoppel, by apparent authority or by ratification.

While the plaintiff’s mother had not acted with the plaintiff’s authorization or control when she initially obtained the tickets, the mother did act as the plaintiff’s agent once the plaintiff allowed her to present the ticket on her behalf to enter the stadium and attend the game. It is a fundamental proposition of agency law that a principal may subsequently ratify an agent’s act even if originally unauthorized, and such ratification will relate back and supply the original authority.

Because the plaintiff could not have entered the stadium without this agreement to the ticket-back terms, the court concluded that the plaintiff was bound to arbitrate by the principles of agency.

The court concluded its opinion by noting that arbitration agreements are designed to promote efficient dispute resolution. Allowing a guest to accept the benefits of an entrance ticket without regard to corresponding conditions would undermine that important public policy consideration and create an unworkable precedent, potentially disrupting any industry reliant on uniform ticket terms.

The court reversed the trial court and compelled the plaintiff to arbitrate.