Arbogast v. Chicago Cubs Baseball Club, LLC, 194 N.E.3d 534

Photographer Charles Arbogast was injured at Wrigley Field after tripping on a stack of pallets while working in a designated photo well. He sued the Cubs and related entities for negligence.
The Cubs moved to dismiss under 735 ILCS 5/2-619(a)(1), arguing Arbogast was bound by an arbitration clause incorporated by reference on his MLB media credential and in the MLBPressbox.com terms (arbitration in New York under the FAA; seven-day opt-out).
The Cubs supported the motion with an affidavit from media-relations coordinator Alex Wilcox and an exemplar credential and printed website terms; Wilcox also asserted the Associated Press applied online for the plaintiff’s credential and clicked an acknowledgement of the terms.
Arbogast submitted his own affidavit denying he ever agreed to the arbitration clause or authorized AP to assent for him, argued procedural unconscionability (per Zuniga) and challenged Wilcox’s affidavit under Illinois Sup. Ct. Rule 191(a).
The trial court denied the Cubs’ motion to dismiss/compel arbitration without prejudice, struck the club’s requests to admit, allowed discovery and ordered the defendants to answer; the Cubs appealed under Rule 307(a)(1).
The appellate court affirmed: because there are genuine issues of material fact about whether any contract was formed between Arbogast and the Cubs, dismissal and compelled arbitration were improper at this juncture; unconscionability was not reached.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Existence of a contract binding Arbogast to MLBPressbox terms via the media credential/application	Arbogast never agreed, never authorized AP rep to assent, and never signed anything	Use of the credential and AP’s application manifested assent; terms on credential and website created a contract	Genuine issue of material fact whether a contract was formed; denial of motion to dismiss affirmed
Enforceability of the arbitration clause (procedural/substantive unconscionability)	Clause is procedurally unconscionable (hidden hyperlink, no mention on credential, impractical opt-out)	Clause is valid and incorporated; user had opportunity to review terms during season	Court did not decide unconscionability because contract formation is unresolved; unconscionability defense requires a contract first
Admissibility/proper summary disposition and discovery (Wilcox affidavit / requests to admit / Rule 191)	Wilcox’s affidavit relied on documents not attached and should be stricken; discovery after motion improper	Evidence and discovery could show plaintiff had notice and opportunity to assent	Appellate court left procedural questions to trial court’s discretion; trial court properly denied extension and struck requests; further discovery/summ. judgment available

Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376 (2004) (section 2-619 may be used to compel arbitration)
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (arbitration is a matter of contract; courts decide threshold questions of contract formation)
Granite Rock Co. v. International Brotherhood of Teamsters, 561 U.S. 287 (2010) (court decides whether any arbitration agreement exists)
Janiga v. Questar Capital Corp., 615 F.3d 735 (7th Cir. 2010) (distinguishes contract-formation questions for courts from validity issues for arbitrators)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (contract principles govern who decides arbitrability)
Melena v. Anheuser-Busch, Inc., 219 Ill. 2d 135 (2006) (basic contract requirements: offer, acceptance, consideration)
Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) (offeree not bound by inconspicuous terms of which he is unaware)
Walker v. Carnival Cruise Lines, Inc., 383 Ill. App. 3d 129 (2008) (reasonable-communicativeness test for ticket/back-of-ticket clauses)
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) (distinguishes challenges to contract existence from challenges to contract validity)