In an admission that negotiations have failed, the manager of the .jobs addresses has filed to arbitrate its dispute with the Internet’s addressing authority over its awarding of .jobs domains.
Making the announcement in a press release issued a short while ago, Employ Media‘s CEO Tom Embrescia adopted a strong position, saying, “This filing was necessary to ward off ICANN’s unwarranted and unprecedented threat of contract termination. That action created immediate uncertainty about the .JOBS TLD (top level domain) on the Internet and caused significant duress on our business.”
The arbitration request to the International Court of Arbitration takes an even stronger tone, saying ICANN, the Internet Corporation for Assigned Names and Numbers, which is the Internet’s addressing authority, made “improper allegations” and “unwarranted threats.”
The filing comes just days before the May 6th deadline for Employ Media to resolve its differences. ICANN issued a notice of breach on Feb. 27th, saying Employ Media was exceeding its authority by allowing the creation of thousands of job boards by the DirectEmployers Association.
The 4-page notice included a sharp rebuke to Employ Media and its partner, the Society for Human Resource Management, which were accused of establishing restrictions on the use of .Jobs address so “loose” they “appear to exclusively serve the financial interests of Employ Media and SHRM.”
Since then, ICANN, SHRM, and Employ Media have been negotiating the issues in a contractually required “cooperative engagement” process. Twice, the initial 30-day negotiation period was extended, with the latest one expiring Friday.
However, late last month signs appeared that the process was not going well. Employ Media’s lawyer Arif Ali, of Crowell & Moring, wrote ICANN objecting to its posting of correspondence sent by the participants. At one point, Ali says:
Some measure of confidentiality is essential to the negotiation process so that the parties can be open and frank without grandstanding or pandering to a larger audience—especially as that audience includes a number of third parties who have wrongfully attempted to insert themselves into ICANN’s contractual relationship with Employ Media.
The third party mention is a barely veiled reference to The .JOBS Charter Compliance Coalition, a group formed last year to oppose Employ Media’s plans to open up use of the .jobs extension. The group has ever since bird-dogged Employ Media, objecting to its release of tens of thousands of .jobs addresses for use in creating niche job boards by DirectEmployers.
ICANN’s response to Ali refutes the claims its posting was improper, and that it acted in bad faith by making public the breach notice and some of the subsequent correspondence between the parties. The letter also warns that the “cooperative engagement process is undercut by correspondence, such as your April 22 letter, seemingly geared solely towards use in future litigation.”
The arbitration, now, is that future litigation. The process can be a lengthy one, especially since at stake is the future of the management of the .jobs addresses and the hundreds of thousands — and potentially, millions — of dollars Employ Media might generate.
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The core of the issue is whether allowing multiple addresses to be issued with non-company names for use as job boards is permissible under the charter granted by ICANN. In its filing to the International Arbitration Court, Employ Media essentially says it is.
During the process it went through with ICANN last year to obtain permission to issue .jobs addresses using other than a company name, Employ Media said it fully disclosed its intention to expand usage as it had first done in 2009, when DirectEmployers began launching hundreds of job boards on location- and occupation-specific .jobs addresses.
The “universe of .JOBS,” as it was being called, was taken off-line while Employ Media and SHRM went through a review process that last August was confirmed by ICANN’s board of directors. (The job sites went back up after the board vote and has been expanding since.) In the arbitration request, Employ media pointed to that experience, observing: “… anyone who wanted to delve into Employ Media’s plans needed only to look at that beta test.”
Consequently, the company claims that the breach notice “resulted from anti-competitive pressure from the Coalition and other, well-financed, well-connected entities, intent on eliminating free market competition posed by the .JOBS Universe.”
Employ Media specifically asks the International Arbitration Court to declare that not only did it not breach its contract with ICANN, but that it is ICANN that did so and for that, ICANN should have to be damages yet to be determined.
Note: Complete background on the .jobs dispute and the creation of the .Jobs Universe is available here.