Category Archives: ALR 2024-2025

ALR 2024-2025

Why the EFAA Has Failed to Protect Many #MeToo Victims

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By

Avery Israel*

Liliana Barrios-Contreras was a cast member on the show Black Ink Crew- Chicago from August 2017 until July 2020.1 The contract she signed to take part in the show included a clause that sent all disputes arising from the contract to arbitration.2 Barrios-Contreras alleged she was subject to sexual harassment throughout her time employed on the show, and that reporting the harassment contributed to her termination.3 On July 6, 2023, Barrios-Contreras filed a complaint with the court alleging discrimination and wrongful termination based on the sexual harassment.4 She argued that the arbitration clause in her contract was unenforceable under federal law as it was directly contrary to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (herein “the EFAA”). 5 The court disagreed with Barrios-Contreras, stating that the EFAA only applied to claims that arose after March 3, 2022, and the EFAA did not have any retroactive applications to claims accrued before the start date.6

The court’s decision about the retroactive application of the EFAA is found in the plain language of the act, “[t]his Act, and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.”7 The reasoning for having no retroactive application is minimal at best. Congress did not publish its reasoning for making the act only proactive, nor have courts pointed to a reason behind it when striking down retroactive cases.8 The decision to not have some retroactive application to claims under the EFAA is counter to the reasoning for having the act in the first place, as well as counter to public policy reasons for having retroactive enforcement of acts.9

The EFAA came about in great part as a reaction to the #MeToo movement, which showed just how ubiquitous sexual harassment has been in modern society, especially in the workplace.10 #MeToo shed light on years of sexual abuse that had been implicitly and explicitly allowed in the workplace in order to hold the abusers accountable for their past behaviors as well as stop sexual harassment from being pervasive in the future.11 Since the EFAA was inspired by a movement to hold people accountable for their past abuses, it is counterintuitive for the act to not hold those accused abusers still within the statute of limitations accountable for actions accrued before the act was signed. If a case is still able to be civilly litigated, intuitively, the EFAA should apply.

The EFAA should also apply retroactively to claims accrued before its signing under public policy reasons. One public policy reason for the retroactive application of laws is efficiency, as retroactive application maximizes the benefits the law was passed to have.12 By only accruing on the date it was signed, the EFAA is not maximizing the benefit it intended of stopping sexual abusers from avoiding a civil courtroom. Further, retroactive law reformers advocate providing relief for disproven policies from the past.13 The policy of allowing sexual abusers to force their victims into arbitration has been disproven by virtue of the EFAA being passed, and victims within the statute of limitations deserve the relief retroactive application would afford them. Also, since sexual harassment and assault were never allowed, the risk of undue punishment for the accused is extremely low.14

Many people like Liliana Barrios-Contreras are still being forced to arbitrate their abuse claims across the table from their abusers. If Congress had allowed the retroactive application of the EFAA to claims still within the statute of limitations, it would have better furthered the purpose of the act and given much-needed relief to those downtrodden by past policy.

* Avery Israel is a Senior Editor of the Arbitration Law Review and a 2025 Juris Doctor Candidate at Penn State Law.

  1. Barrios-Contreras v. Big Fish Ent. LLC, 2024 U.S. Dist. LEXIS 125802, 2024 WL 3435854 (S.D.N.Y., July 17, 2024) at *2. ↩
  2. Id. ↩
  3. Id. at *3. ↩
  4. Id. ↩
  5. Barrios-Contreras, 2024 U.S. Dist. LEXIS 125802 at *13. ↩
  6. Id. (citing Pub. Law 117-90 § 3). ↩
  7. 117 P.L. 90; 2022 Enacted H.R. 4445; 117 Enacted H.R. 4445; 136 Stat. 26. ↩
  8. H.R.4445 — 117th Congress (2021-2022); Zuluaga v. Altice USA, 2022 N.J. Super. Unpub. LEXIS 2356 (N.J. App. Div. Nov. 29, 2022). ↩
  9. Bryce Covert, One of #MeToo’s Biggest Wins Is About to Be Tested in Court, The Nation (June 13, 2023), https://www.thenation.com/article/society/sexual-harassment-me-too-arbitration/. ↩
  10. Deborah A. Widiss, New Law Limits Mandatory Arbitration in Cases Involving Sexual Assault or Sexual Harassment, at 50, ABA, LAB. & EMP. L. Newsletter (Fall 2022). ↩
  11. Holly Corbett, #MeToo Five Years Later: How The Movement Started And What Needs To Change, Forbes (Oct. 27, 2022), https://www.forbes.com/sites/hollycorbett/2022/10/27/metoo-five-years-later-how-the-movement-started-and-what-needs-to-change/. ↩
  12. Daniel E. Troy, Retroactive Legislation, at 22 (1998). ↩
  13. Retroactivity, Restore Justice, https://www.restorejustice.org/legal-explainer/explainer-retroactivity/#:~:text=Retroactive%20reforms%20today%20are%20designed,disproven%20policies%20of%20the%20past (last visited Oct. 10, 2024). ↩
  14. exual Harassment, Equal Employment Opportunity Commission, https://www.eeoc.gov/sexual-harassment. ↩
ALR 2024-2025

Go For Bronze: Court of Arbitration for Sport’s Case of the 2024 Women’s Olympic Floor Finals

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By

Morgan Elmore*

Following the conclusion of the women’s gymnastics floor exercise final of the 2024 Paris Olympic Games, it was not the gold medal recipient people were interested in but the bronze.1 All eyes were on Jordan Chiles, the recipient of the bronze after The Federation of Romanian Gymnastics contested the timeliness of a score inquiry brought by Chiles’ coach contesting her difficulty score.2 The Fédération Internationale de Gymnastique (herein “FIG”), the international governing body for gymnastics, accepted the score inquiry, and the resulting change in score dropped Ana Marie Bărbosu from third to fourth. Chiles improved from fifth to third.3 The Romanians brought a claim against FIG to the Court of Arbitration for Sport (herein “CAS”) that “the inquiry submitted by Ms. Chiles should be dismissed as it was submitted after the end of the 1-minute deadline provided by Article 8.5 of FIG Technical Regulations 2024.”4 Chiles, her coach, and USA Gymnastics participated in the case through counsel.5 Interestingly, the International Olympic Committee (herein “IOC”) chose to participate but almost solely as an observer, offering little testimony.6

CAS is governed by the Code of Sport, which outlines rules and procedures for various international sports.7 The Code establishes procedures for arbitration, appeals, mediation, as well as procedures for receiving advisement on disputes prior to any formal procedure.8 The CAS does not question scoring or decisions of referees and officials, only technical or procedural issues.9 CAS was established by the International Olympic Committee (herein “IOC”) in 1983.10 Organizations including the IOC and Federation Internationale de Football Association (herein “FIFA”), often see disputes resolved in the CAS.11 Here, neither party challenged the jurisdiction or applicable law used by CAS.12

The issue before the Court here was whether the score inquiry was made soon enough after Chiles’ posted score.13All associated parties stipulated that the inquiry was submitted after one minute and four seconds.14 This issue hinged on the interpretation of Article 8.5 of FIG Technical Regulations and whether it allowed for discretion in the timeliness of inquiries.15 Article 8.5 reads “[f]or the last gymnast or group of a rotation, this limit is one (1) minute after the score is shown on the scoreboard.”16 It adds that “[l]ate verbal inquiries will be rejected.”17USA Gymnastics contended that using other Articles in FIG rules in other facets like length of routine, there was some flexibility in timeliness and therefore rule 8.5 could also be understood as flexible.18The Court noted that in other FIG rules prescribing timeliness, the rule explicitly notes conditions for exceptions while the FIG rule addressing scores inquiries does not.19The Court interpreted this absence as an intention to keep the time limit strictly to one minute.20

Issues regarding who took the inquiry and the inquiry electronic system were raised however, they did not affect the Court’s decision.21 The court concluded that the one-minute time limit was absolute.22 Therefore, the scores were ordered to be reverted to the pre-inquiry results.23 As a result, Chiles returned to fifth place with Bărbosu returning to third place and awarded the bronze medal.24 Chiles has filed multiple appeals.25

Ultimately, CAS proved to be the best, most widely recognized forum for resolving this dispute in an unbiased manner. CAS fulfilled its aim of interpreting the FIG rules and their application while not straying into the official scoring awarded by the judges for the performance. While the results of the Court have been internationally scrutinized, largely raising political biases, CAS properly adjudicated the issue.26

* Morgan Elmore is a Senior Editor of Arbitration Law Review and a 2025 Juris Doctor Candidate at Penn State Law.

  1. See Alice Park, Why Jordan Chiles Lost Her Bronze Medal, Time Magazine (August 12, 2024 6:48 PM) https://time.com/7009822/jordan-chiles-olympic-bronze-in-jeopardy/. ↩
  2. See Id. ↩
  3. Fed’n Rom. Gymnastics & Ana Maria Bărbosu v. Donatella Sacchi & Fed’n Int’l de Gymnastique, CAS OG 24-15, Judgment, (Aug. 14, 2024) https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_OG_15-16__for_publication_.pdf. ↩
  4. Id. ↩
  5. Id. ↩
  6. Id. ↩
  7. Origins, History of the CAS, Tribunal Arbitral Du Sport/Court of Arbitration for Sport (Oct. 6, 2024 2:36 PM) https://www.tas-cas.org/en/general-information/history-of-the-cas.html. ↩
  8. Id. ↩
  9. Fed’n Rom. Gymnastics & Ana Maria Barbosu v. Donatella Sacchi & Fed’n Int’l de Gymnastique, CAS OG 24-15, Judgment, at ¶ 141, (Aug. 14, 2024) https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_OG_15-16__for_publication.pdf. ↩
  10. Tribunal Arbitral Du Sport/Court of Arbitration for Sport, supra note 7. ↩
  11. Id. ↩
  12. See Donatella Sacchi & Fed’n Int’l de Gymnastique, CAS OG 24-15. ↩
  13. Id. ↩
  14. Id. ↩
  15. Id. ↩
  16. Fed’n Rom. Gymnastics & Ana Maria Barbosu v. Donatella Sacchi & Fed’n Int’l de Gymnastique, CAS OG 24-15, Judgment, at ¶ 117, (Aug. 14, 2024) https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_OG_15-16__for_publication.pdf. ↩
  17. Id. ↩
  18. Id. ↩
  19. Id. ↩
  20. Id. ↩
  21. See Federation Romanian Gymnastics and Ana Maria Bărbosu v. Donatella Sacchi and Fédération Internationale de Gymnastique; Caroline Simson, New Guidelines Put the “How” in Arbitrator Disclosures, Law360 (August 30, 2024, 6:40 PM) https://www.law360.com/articles/1874048/new-guidelines-put-the-how-in-arbitrator-disclosures. ↩
  22. Fed’n Rom. Gymnastics & Ana Maria Barbosu v. Donatella Sacchi & Fed’n Int’l de Gymnastique, CAS OG 24-15, Judgment, at ¶ 117, (Aug. 14, 2024) https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_OG_15-16__for_publication.pdf. ↩
  23. Id. ↩
  24. See Becky Sullivan, Court says it won’t reconsider case that took away Jordan Chiles’ bronze medal, NPR (August 11, 2024 4:35 PM)  https://www.npr.org/2024/08/11/g-s1-16509/us-gymnast-jordan-chiles-bronze-medal-return. ↩
  25. See James Pratt, Jordan Chiles Submits Appeal Over Paris 2024 Bronze Medal Ruling to Swiss Federal Supreme Court, Olympics (Sept. 17, 2024) https://olympics.com/en/news/jordan-chiles-submits-appeal-paris-2024-bronze-medal-ruling-swiss-federal-supreme-court. ↩
  26. See Caroline Simson, Gharavi Threatens Defamation Suit In Chiles Controversy, Law360 (August 27, 2024 7:54 PM) https://www.law360.com/internationalarbitration/articles/1873900/gharavi-threatens-defamation-suit-in-chiles-controversy ; Caroline Simson, Conflict Questions Haunt Chiles’ Bronze Medal Case, Law360 (August 15, 2024, 10:26 PM) https://www.law360.com/internationalarbitration/articles/1870183/conflict-questions-haunt-chiles-bronze-medal-case. ↩
ALR 2024-2025

Breaking the Silence: How the Ending Forced Arbitration Act is Reshaping Contract Disputes in Reality Television

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By

Sakina Bhatti*

While reality TV captivates audiences with its on-screen drama, the true tensions between cast members and producers have long remained behind the scenes, kept quiet by non-disclosure agreements and arbitration clauses buried in contracts.1 These clauses have allowed disputes—whether over contract terms, wages, or personal grievances—to be resolved in private, away from public scrutiny and knowledge.2 Cast members, as a result, have been forced into arbitration.3 However, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act4 (herein “EFAA”), marks a significant change in the resolution of disputes. The Act invalidates arbitration agreements in cases involving allegations of sexual harassment or assault, freeing claimants from the constraints of mandatory arbitration when making such claims.5 This shift is particularly relevant in the entertainment industry, where contracts are standard, but the stakes are exceptionally high due to the public nature of the work.

As a new season of the Netflix’s Love is Blind garners the public’s attention, a dispute from the fifth season demonstrates the potential impact of the EFAA.6 Tran Dang, a contestant on the dating show, sued Delirum TV, the production company behind the series, in Texas, alleging she was sexually assaulted by a fellow cast member.7 Delirum TV responded with a motion to compel arbitration, arguing that Dang’s claims were governed by the arbitration clause in her contract, but the state trial court denied the motion.8 On appeal, the Texas Court of Appeals affirmed the lower court, reasoning that the EFAA applies in any scenario where there are allegations of sexual assault, regardless of who the perpetrator is, or their relation to the entity seeking enforcement of the arbitration clause.9

Though this ruling might seem insignificant to those outside the world of reality TV, it is a pivotal development for the future of arbitration. Traditionally, the Federal Arbitration Act has created a strong presumption in favor of enforcing arbitration agreements, even when serious allegations were involved.10 The Dang case illustrates how the EFAA challenges the enforceability of such agreements, a core principle of arbitration.11

In reality TV, where contracts are designed to protect producers and networks from public disputes, the Dang ruling sets a precedent that could allow more participants to bring their claims into public courtrooms—and thereby into the public eye.12 This could draw attention to previously hidden dynamics and power imbalances in the industry. Though for viewers this may just mean an increase in the drama-levels of the shows, for arbitration practitioners, it presents a significant shift. Entities that have previously relied on arbitration agreements to manage disputes quietly may now be forced to reconsider their dispute resolution strategies. For industries like reality TV where public perception and confidentiality are paramount,13 this shift is potentially seismic.

Although the EFAA doesn’t completely remove arbitration from the picture in reality TV contract disputes, it opens the door for some claims that are important for the public’s knowledge to bypass the previously ironclad arbitration agreements. What remains to be seen, however, is the extent of the EFAA’s reach and its broader impact on the entertainment industry. As more cases test the boundaries of the EFAA, the field of arbitration will have to grapple with the evolving landscape and consider how these changes will shape contract enforcement and dispute resolution in the years to come.

* Sakina Bhatti is Senior Editor of Arbitration Law Review and a 2025 Juris Doctor Candidate at Penn State Law.

  1. David Arditi, The Voice: Non-Disclosure Agreements and the Hidden Political Economy of Reality TV, 18 Popular Communication 138 (2020). ↩
  2. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018). ↩
  3. Hillel Aron, Judge Orders ‘Love Is Blind’ Cast Member Back to Arbitration, Courthouse News Service (Mar. 22, 2024), https://www.courthousenews.com/judge-orders-love-is-blind-cast-member-back-to-arbitration/. ↩
  4. Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), Pub. L. No. 117-90, 136 Stat. 26 (2022) (codified at 9 U.S.C. § 402(a)). ↩
  5. Id. ↩
  6. Ginger Christ, ‘Love is Blind’ Producer Can’t Force Arbitration in Sexual Assault Case, HR Dive (Apr. 10, 2024), https://www.hrdive.com/news/love-is-blind-arbitration-tran-dang-sexual-assault-lawsuit/712836/. ↩
  7. Dang v. Delirium TV, LLC, No. 2022-50674, 2023 Tex. Dist. LEXIS 4521 (Tex. Dist. Ct. May 10, 2023); see also Libby Torres, It’s Not Just ‘Love Is Blind’—Reality TV Has a Sexual Misconduct Problem, Business Insider (Oct. 12, 2023, 12:48 PM EDT), https://www.businessinsider.com/reality-tv-sexual-misconduct-problem-love-is-blind-2023-10. ↩
  8. Dang, 2023 Tex. Dist. LEXIS 4521. ↩
  9. Delirium TV, LLC v. Dang, No. 01-23-00383-CV, 2024 Tex. App. LEXIS 2451 at *17-18 (Tex. App. Apr. 9, 2024). ↩
  10. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) (“The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.”) ↩
  11. 9 U.S.C. § 2 (2022) (“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy . . . shall be valid, irrevocable, and enforceable. . . .”) ↩
  12. See Amanda Cort, Get Real: The Tension Between Stardom and Justice for Reality Television Participants, 13 N.Y.U. J. Intell. Prop. & Ent. L. 245 (2024), https://jipel.law.nyu.edu/get-real-the-tension-between-stardom-and-justice-for-reality-television-participants/. ↩
  13. Souvik Das, et al., Perception Analysis of TV Reality Shows: Perspective of Viewers’ and Entertainment Industry Professionals, 7 Int’l J. Media, Journalism & Mass Commc’ns 22 (2021). ↩