The article covers the nature of the dispute in depth (and well) and I won't repeat it here. The crux of the lawsuit is as follows:
Herman, 25, is suing Bellator Fighting Championships for allegedly breaching a six-fight, 30-month contract he signed into with the promotion on Oct. 28, 2008. Herman is also claiming tort[i]ous interference on the part of Bellator for a handful of fight assignments -- including a four-fight contract offer from Strikeforce -- he’s tried to secure since January. The promotion is countersuing for alleged breach of contract as well.
According to the article, there was an addendum to the contract that provided that Herman could fight outside the promotion with the promotion's written permission.
I have not seen the complaint, counterclaims, or any documents for that matter, but according to the article Herman claims that the contract provided that Herman would participate in the Fall 2009 Bellator heavyweight tournament, i.e., approximately one-year after he signed the deal, and that he was guaranteed two fights before the tournament (or before November 2009).
There is plenty of detail in the article concerning the back-and-forth concerning Herman's participation in other fights for other promotions leading to the tournament (and whether Herman had written permission).
The part that struck me, however, was the following passage:
On Nov. 2, 2009, Herman advised the promotion by e-mail and regular mail that it was in breach of his contract for not providing the second bout within the contracted year. On Nov. 7, Herman fought again for Japan’s Sengoku promotion, scoring a first-round knockout against Jim York.
Bellator attorney English said Herman blatantly breached his contract at this time by not allowing the promotion the 45-day cure period allotted to try and remedy the alleged breach. However, for the next 45 days, Herman’s camp said Bellator did not offer the fighter another bout.While I am certainly sympathetic to Herman's cause after reading the article, i.e. his desire to fight, the above-passage, if true, would certainly seem to support a counterclaim by Bellator and may undercut Herman's own claim for breach.
Specifically, advising Bellator on November 2, 2009 that it allegedly failed to live up to its end of the bargain to provide two fights on or before November 1, 2009 and then taking a fight 5-days later, would seem to disregard the 45-day cure period.
Essentially, the cure period would give Bellator a 45-day window to correct any alleged breach. That is, Bellator could have provided a fight in that window.
I guess Herman could be arguing that once the November 1, 2009 date passed without a second bout, the breach was final and the 45-day cure period was not intended to extend the period of time Bellator had to put together the two fights. In other words, the cure period was intended to cover other types of breaches, such as failure to promote the fights or failure to make timely payment etc.
I can't really say.
However, the fact that Herman waited almost exactly 45-days (by my count, 46-days), i.e. from November 2, 2009 - December 18, 2009, to advise Bellator that the contract was terminated suggests that Herman understood that he had to provide a 45-day window to cure before he had the right to declare the contract terminated.
Nonetheless, allegedly without written permission and allegedly in breach of the contract, Herman took the fight in Japan before the expiration of the cure period.
While Herman claims that Bellator didn't provide a fight in the 45-day period after his November 2, letter (and so Bellator didn't exercise its right to cure), that would not excuse any alleged breach by him that pre-dated the expiration of the cure period. In fact, it may actually excuse Bellator's breach because it could arguably justify its failure to provide a fight in the 45-day window.
It will be interesting to see how this plays out, but the article states that the judge already denied Herman's motion for an injunction, which is not a great sign for Herman.
Fight Lawyer
