MIAMI NON-COMPETE AGREEMENT: WAIVING ARBITRATION

Restrictive covenant agreements like non-compete agreements and non-solicitation agreements must be in writing. Fla. Stat. § 542.335 (“A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.”). This means restrictive covenant agreements containing non-compete provisions or non-solicitation provisions are often part of larger a contract containing many other provisions. One provision that may be contained within restrictive covenant contract is an arbitration clause requiring the parties to submit their claims to an arbitrator instead of a court. These provisions require an arbitrator to decide whether the non-compete provision or non-solicitation provision is enforceable and award the prevailing party a remedy including an injunction. However, an arbitration provision does not always relinquish all decisional authority to an arbitrator because the provision may reserve considerations regarding the imposition on an injunction to the court. Roger E. Freilich, D.M.D., P.A. v. Shochet, 96 So. 3d 1135 (Fla. 4th DCA 2012). The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Litigants seeking to avoid arbitration provisions contained within restrictive covenant agreements may file their lawsuit in a court rather than arbitration. If this happens, it is up to the opposing litigant to compel arbitration if they wish to invoke the restrictive covenant agreement’s arbitration provision. The court’s role is then limited to determining “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999). All remaining issues must be resolved by the arbitrator.  

The first step of the analysis requires the court to ensure the agreement between the parties is valid. The second step requires the court to ensure the arbitration provision is broad enough to cover the issue in dispute. For disputes regarding the enforcement of a non-compete provision or a non-solicitation provision, the arbitration provision must apply to those provisions. Any “doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Jones v. Waffle House, Inc., 866 F.3d 1257 (11th Cir. 2017).

The third step requires the court to perform an analysis to determine whether the moving party’s actions or deeds demonstrate he or she waived arbitration. “A party claiming waiver of arbitration must show:… knowledge of an existing right to arbitrate and… active participation in litigation or other acts inconsistent with the right.” Marine Env’t Partners, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003). Active participation in the lawsuit constitutes a waiver because it is usually presumed to be inconsistent with the intent to arbitrate. However, that is not always the case. For example, in Atl. Wealth Partners, LLC v. Brant, the court determined the party seeking to compel an arbitration provision contained within a restrictive covenant contract did not waive its right to arbitrate by filing a motion to strike the opposing party’s answer because the motion to strike was filed after the motion to compel arbitration was filed, the motion to strike was not inconsistent with the right to arbitrate, and the motion did not demonstrate an acquiescence to judicial action. 2025 WL 1943771 (Fla. 4th DCA July 16, 2025). Litigants seeking to compel arbitration must therefore pay careful attention to their actions to ensure they adequately defend themselves without taking stepping over the line and waiving their arbitration right.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.