The dispute between Woods and his ex-girlfriend appears headed for arbitration, behind closed doors, which is Woods’s preference.
STUART, Fla. — In 46 minutes, Judge Elizabeth A. Metzger synthesized months of arguments in legal filings and while she was unwilling to rule from the bench, she made it clear that Tiger Woods had a good day in court on Tuesday.
The hearing in courtroom A3-1 of the Martin County Courthouse was on the defendant’s motion to compel arbitration in the dispute between Erica Herman and Tiger Woods.
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Neither Herman nor Woods were present at the hearing.
Judge Metzger started by posing the fundamental question early in the process: “Showing me the agreement, is it valid on its face?”
The agreement that Judge Metzger was referring to is a Non-Disclosure and Acknowledgement Agreement that was purported to be executed by both Herman and Woods on Aug. 9, 2017.
In that agreement, section 3, titled “Dispute Resolution,” provides for binding arbitration in any issues originating from the agreement.
Woods, through his legal team, has taken the stance that the agreement executed in August 2017 is a valid document and is controlling in this case and should be upheld with any and all disputes going to arbitration and not to a court for resolution.
Woods, who has always been extremely private in his business and personal affairs, wants to make sure that any issues that came from his lengthy relationship with ex-girlfriend Herman stay behind closed doors, which will happen in arbitration.
That was the position Woods’s lead attorney John Murray took in the hearing, by staying inside his lane and relying on Black Letter law, or law that is well-established and no longer needs clarification, he continued on the concept of the document says it all.
“The arbitration agreement is valid on its face,” Murray said, quoting case law. “It’s the burden of the party seeking to avoid arbitration to demonstrate that the agreement is itself is invalid.”
Murray went on to argue that the NDA is valid on its face as it’s signed, dated and does have an arbitration agreement that requires these parties to arbitrate, which are all required to be a valid agreement.
To support the validity of the NDA, Murray referred to declarations by Woods, Christopher J. Hubman, his CFO of ETW Corporation (a company that manages all of Woods’s business endeavors) and Rob J. McNamara, executive vice president of ETW Corporation, all in some way supporting that the NDA is valid and the signatures are authentic.
Judge Metzger seemed to agree that “valid on its face” argument was the proper analysis in this case and asked for help from Herman’s lead counsel Ben Hodas, which never came.
“So, they (defendant) obviously indicated if the court gets past the issue of its valid upon its face, you look at the language in the document as a contract to tell us what goes to arbitration,” Metzger said. “We know that this language is very broad, and it cites the AAA (American Arbitration Association) rules, and we know what the case law is on that so again, I know you disagree with valid on its face. But when I look at the plain language of the agreement, it seems as if the arbitration clause is very broad. And it would require that the court send the issues of validity, as well as scope to an arbitrator.”
Hodas’s argument was that Herman did not remember signing the NDA of August 2017, and therefore its authenticity is in question.
To help Herman remember if she did indeed sign the document, Hodas had asked previously for certain documents in discovery that have not been forthcoming and so then asked the court for an evidentiary hearing to dig deeper in the validity of the declarations and the NDA itself, all of which would take place in open court and not behind the closed doors of an arbitration hearing.
Metzger was not willing to go down that particular rabbit hole and tried to bring the question back to the agreement itself.
“I think just right out of the box, motion to compel, I am showing the agreement. And now that I have heard from you, I know what the agreement is. And I look at it and I make a determination if it’s, quote unquote, valid on its face.” Metzger said. “We know contract interpretation, I confine myself to the four corners of the agreement, and I look at it. I can’t look further than that.”
Metzger would continue to harp on contract law and the “four corners of the document” doctrine as controlling in her decision.
As the hearing was going badly for Herman, her counsel tried to tie the recently passed legal stature Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 to nullify the arbitration clause by providing a lifeline for Judge Metzger, suggesting she had discretion under the statute.
“I think the other side cited some case law that says the court needs more than just conclusory references to the federal statute, right?” Metzger asked Hodas. “Yes, I think you’re nodding your head.”
Judge Metzger then spelled out that the stature only applies for sexual harassment or sexual assault if it occurred after March 3, 2022, and not prior to that date.
In a court filing last week by Herman, a vague reference was made to an incident in 2017 where it was claimed that if she signed the NDA it was because Woods, as her boss, imposed an NDA upon her to keep her job when she was having a sexual relationship with him.
Ultimately Judge Metzger came to the following conclusion before concluding the hearing.
“Mr. Hodas, I guess your request is ‘Judge, there seems to be issues of fact, and therefore we should have an evidentiary hearing on the issue of authenticity,’” Judge Metzger said. “And on the other side, they’re saying ‘absolutely not. You have sufficient evidence in the record of authenticity. This is the agreement, its valid on its face. The arbitration clause is broad. The attack is on the validity of the agreement overall itself and is an arguable issue and should be sent to the arbitrator.’”
When Hodas was asked after the hearing why he did not provide any factual evidence about the sexual harassment or sexual assault as required under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, his response was both limited and ominous.
“Because of the sensitive nature of this matter I’m not going to comment,” Hodas said.
If Judge Metzger determines that the arbitration clause is valid, Herman will have a difficult time getting an appearance in state or federal court.
The dispute between Herman and Woods would then go to arbitration and everything said would be behind closed doors, just like Woods wanted it.
