Mandatory Arbitration Provisions Involving Talent and Studios and Proposed Areas for Improvement

Abstract

In recent years, the major television studios have increasingly insisted that their new contracts with talent, including executive producers, directors and actors, include a mandatory arbitration provision and that one particular arbitration provider, JAMS, be the forum to arbitrate all disputes. The studios defend their inclusion of mandatory arbitration provisions with JAMS as the provider, arguing that the arbitration process has safeguards to protect fairness, JAMS arbitrators are particularly well qualified and that juries tend to favor talent, not large corporations. Given the studios’ near universal designation of a sole provider in their contracts, the studios’ size and influence on the Los Angeles economy, the realities of arbitration and private judging as a for-profit business and anecdotal stories of arbitrators favoring the repeat player studios over talent, the talent community is increasingly concerned about the danger of “repeat player/provider bias” in major studio versus talent arbitrations. The article examines the historical trends and the reasons for them, the lack of transparency and risk of repeat player/provider bias in talent versus studio arbitrations, the legal possibilities in challenging such a mandatory arbitration provision, the potential impact of the California consumer arbitration disclosure statute and steps that can and should be made by the arbitration providers to alleviate the perception, if not the reality, of repeat player/provider bias in this arena.