In light of recent events, regarding the discovery of the chemistry and fitness glitches, a lot of people are saying that EA should be sued; however, I want to point out that EA can’t be sued because of the Terms of Service agreement.
In Clause 20 of the Terms of Service agreement, we waive our right to a trial by jury or to participate in a class action. Further, we agree that any dispute that arises between EA and us (us as customers) has to be resolved by binding arbitration.
What does this mean?
First, EA can’t be taken to court over a dispute, such as the chemistry/fitness glitch. Second, and most importantly, neither of us customers can participate in a class action against EA. This last provision is really crucial to a dispute such as the chemistry/fitness glitch as this dispute could be the subject matter of a class action suit. When having dispute against a company, class actions suits are important as they imply that the issues in dispute affect and are common to all members of the class, and that the persons affected are so numerous as to make it impracticable to bring them all before the court. Consequently, the suit is easier to manage, both in monetary and logistic terms, and if the class action succeeds the rewards are shared by everyone. For example, the recent suit against Ticketmaster over their undisclosed fees is a good example of a successful class action suit.
Finally, EA cover themselves (shocking!) against claims against false advertising by explicating stating that “claims that arose before this Agreement or any prior agreement (including, but not limited to, claims relating to advertising)” should be resolved by binding arbitration. This provision protects them against consumer law.
Why is arbitration so beneficial to EA?
First, the previously mentioned, impossibility of bringing a class action suits against EA. Second, arbitration is resolved quicker and has less public exposure as compared to a trial by jury or a class action suit. Third, if any of us customers have a claim against EA, we need to bring this claim as a personal claim; in other words, each one of us would have to present a claim against EA. Finally, disputes resolved over arbitration are usually settled before a verdict is reached and the rewards are almost always smaller compared to a trial by jury or a class action suit.
But can we overturn the agreement?
In theory, these types of agreements can be overturned by several reasons, such as unconstitutionality or proving a substantial inequality of bargaining power. The latter could apply in this specific case. However, in practice, these agreements are hard to overturn. Further, EA have included a provision in the Terms of Service agreement that explicitly states that any dispute relating to the interpretation, scope, enforceability, or formation of the agreement to arbitrate has to be resolved by binding arbitration.
Are there any exceptions to this agreement?
The provisions mentioned before applies to all consumers to the fullest extent allowable by law, but expressly excludes residents of Quebec, Russia, Switzerland, the Member States of the European Union, and the Republic of Korea. Moreover, the agreement also states that a claim to enforce any statutory consumer rights to which you are entitled under the Australian Consumer Law is also excluded from the agreement.
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