Miguel J. Chamorro

The Sixth District Court of Appeal has recently issued a decision at odds with its sister courts: in affirming an order granting a motion to compel arbitration, the District Court held that arbitrators—not courts—must decide whether non-signatories to the arbitration agreement could compel arbitration. See Wyrick v. Millenial Capital Co., LLC, Case No. 6D2025-0288 (Mar. 20, 2026 Fla. 6th DCA). In so doing, the Sixth District charted its own course on the issue of who decides one of the threshold questions of arbitrability.

Arbitrability refers to the “gateway” or “threshold” questions about whether a claim arising from a contract, such as the “enforceability, scope, or applicability of the parties’ agreement to arbitrate their claims,” is subject to arbitration. Attix v. Carrington Mortg. Servs, LLC, 35 F.4th 1284, 1295 (11th Cir. 2022) (quotation omitted). See Airbnb, Inc. v. Doe, 336 So.3d 698, 703 (Fla. 2022) (describing questions of arbitrability as “‘whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.’”) (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010)). Ordinarily, courts decide arbitrability questions. See Attix, 35 F.4th at 1395; Fla. Stat. § 682.02(2) (“The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.”). However, parties can “delegate” that function to arbitrators by “clearly and unmistakably” including delegation clauses in their agreement, AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 649 (1986), or incorporating by reference the rules of an arbitration tribunal that “expressly delegate arbitrability” functions to an arbitrator. Airbnb, 336 So.3d at 704. The latter was the case in Wyrick, where the arbitration rule reserved to the arbitrator:

“[j]urisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration[.]”

Wyrick, at *1 (quoting JAMS Comprehensive Arb. Rules & Procs., Rule 11(b)).

What makes Wyrick unique is that it involved non-parties to arbitration agreements. That raises the question of whether the litigants even agreed to arbitrate against each other—an issue separate from whether delegation clauses are enforceable. See Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999) (ruling on a motion to compel arbitration “necessarily involves a determination of whether a valid agreement exists between the parties” because “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate”); Rent-A-Ctr., 561 U.S. at 67-68 (distinguishing between the validity of an arbitration agreement and whether the parties “ever concluded” one); Odum v. LP Graceville, LLC, 277 So. 3d 194, 196 (Fla. 1st DCA 2019) (“it always remains the trial court’s role to determine whether the parties entered into an agreement before enforcing that agreement by compelling arbitration.”).

There are well-known exceptions to the general rule that non-signatories to the arbitration agreement cannot compel a signatory to arbitration—a topic beyond the scope of this article. The point here is that courts decide if those exceptions apply, even if the agreement has a delegation clause. See Odum, 277 So. 3d at 196 (“A determination of whether a party seeking to enforce an arbitration agreement actually entered into that agreement is one for the trial court, regardless of a delegation clause”); Integrated Health Servs. at Cent. Fla., Inc. v. Est. of DeSantis ex rel. DeSantis, 407 So. 3d 547, 550 n.4 (Fla. 2d DCA 2025) (describing the issue of whether a non-party can enforce an arbitration agreement as whether the parties “could be said to have agreed to anything at all—a question that remains within the purview of the trial court notwithstanding any delegation provision”); Factor Brokers, Inc. v. J&C Enter., Inc., 388 So.3d 86, 88, n.1 (Fla. 3d DCA 2023) (“the trial court wasn’t precluded from ruling on the threshold question of the existence of a written agreement between the parties, despite the agreement’s incorporation of the ICC rules reserving questions of the validity of the agreement to the arbitrator.”); Shireman v. Tracker Marine, LLC, 2019 WL 13267902, at *9 (M.D. Fla. Mar. 12, 2019) (“courts, rather than arbitrators, must determine whether a non-signatory to a contract containing an arbitration agreement can compel a signatory to submit to arbitration.”); SBMH Group DMCC v. Noadiam USA, LLC, 297 F. Supp. 3d 1321, 1326 (S.D. Fla. 2017) (“[The Eleventh Circuit’s] strict enforcement of the delegation provision can apply only to those parties who actually signed the agreement and manifested their desire to arbitrate arbitrability.”). But the Sixth District held differently based on the arbitration rule before it.

The Sixth District acknowledged the different holdings in Odum, at 196, Integrated Health, 407 So. 3d at 550 n.4, and Shireman, at *9, but reasoned that these cases:

do not appear to deal with the [arbitration rule] before this court which states that it is for the arbitrator to decide who the proper parties to the arbitration are. Thus, under the facts of this case we conclude that the trial court correctly deferred to the arbitrator on the question of whether Appellees, as non-signatories, may enforce the arbitration agreement, among the other questions of arbitrability at issue.

Wyrick, at *2 (emphasis added). While the arbitration rule at issue may be unique in that it delegated to the arbitrator the specific function of identifying the “proper Parties to the Arbitration,” Wyrick, at *1 (quoting rule), Wyrick may be faulted for prioritizing the enforceability of the agreement’s delegation clause at the expense of determining whether the agreement applies to the non-party appellees in the first place. After all, the non-parties never agreed to the arbitration rule at issue because they are not signatories to the agreement that incorporated that rule by reference. It is no wonder then that the appellant moved the Sixth District for certification of a conflict between its decision and the decisions of the First and Second District Courts of Appeal. Stay tuned.