Tuff-N-Uff Productions Sued for Copyright Infringement

Tuff-N-Uff Productions, Inc. and its President, Secretary, Treasurer and Director, Barry Meyer, have been sued for copyright infringement by Righthaven, LLC over a March 2, 2010 article appearing in the Las Vegas Review-Journal concerning a Tuff-N-Uff fight that Tuff-N-Uff then, allegedly, posted on its website. Here is a link to the article.

In the article, which is an exhibit to the Complaint, the Review-Journal describes a fairly gruesome injury to a fighter during a Tuff-N-Uff promotion.  Meyer is quoted in the article discussing the fighter's injury and his request for a rematch. 

As discussed at the Mixed Martial Arts Law Blog (hat tip for pointing me to the lawsuit), copying an entire article and listing the source may avoid plagiarism, but it does not avoid copyright infringement:

Many people believe that reproducing someone else's article or other content is okay as long as you note the source. That is simply not true.  Giving credit to the original author just means you are not guilty of plagiarism. It does not mean you have not committed copyright infringement. In fact, it might just make it easier to get caught.

If the allegations in the Complaint are true, Tuff-N-Uff's problems are only compounded because, according to the Complaint and as evidenced by the exhibits to the complaint, Righthaven received a registration over the copyrighted work (i.e. the article) on May 13, 2010.  Because the work was registered within 90 days of publication, Righthaven is entitled to statutory damages ($150,000) and its attorney's fees. 

Ordinarily a party will seek its actual damages for copyright infringement, but in this case those damages, I believe, would be little or nothing.  However, because of the registration, Righthaven is entitled to $150,000 assuming it can prove its case.

If the allegations are true, this is not a good situation for Tuff-N-Uff. 

I will continue to monitor.

Fight Lawyer

Jarrod Wyatt to Face First Degree Murder, Aggravated Mayhem and Torture Charges

I really don't have much to say or add concerning Jarrod Wyatt's alleged actions that occurred while he was allegedly under the influence of "magic" mushrooms, but since this is a legal blog devoted to fighting issues and since Wyatt is a professional MMA fighter (1-0 record), I will just provide updates on this ridiculous (super bizarre) matter.

For those of you who don't know, Wyatt was allegedly under the influence of mushrooms with his girlfriend and two other individuals when things went horribly wrong.  According to this article, Wyatt believed that Powell was acting "aggressively" towards his girlfriend and thought Powell was the devil.  Things went downhill from there: 

When sheriff’s deputies arrived at the residence, they found Wyatt naked and covered in blood in the living room with Powell’s body. Powell died as a result of blood loss due to having his heart cut out, according to his death certificate and testimony at Wednesday’s preliminary hearing. He was also choked and beaten before he died, and other parts of his body were mutilated.

According to the article, Wyatt's attorney raised a number of arguments to either get the murder charge reduced and/or get rid of the torture charge--all of these efforts were rejected.

First, Wyatt's lawyer tried to have the charge reduced to manslaughter because (he claimed) Wyatt's actions were in reaction to Powell's "aggressive" acts towards Wyatt's girlfriend (the old crime of passion/heat of passion murder):

'I think those are reactive acts for what he saw going on with his lady friend and this guy,' Fallman [Wyatt's attorney] said, adding that it would be similar to a husband walking into his bedroom to find his wife with another man and killing him without any premeditation. 'This is a manslaughter-like thing.'

Wyatt's attorney also argued that the torture charge should be dismissed because he claimed the mutilation happened while Powell was unconscious. 

Judge Follett rejected Fallman’s argument that because Powell was unconscious and therefore couldn’t feel anything before he died that the torture charge should be dismissed. The attorney also tried to present Wyatt’s state of mind as a result of the mushrooms to be a factor in reducing the murder charge.  'My client was trying to silence the devil,” Fallman said. 'I think he was having a psychotic fit based on the mushrooms he had.'

This argument was rejected as well.

Fight Lawyer

Has Affliction Set Itself Up for Aiding and Abetting Liability?

In response to my post here, I received a reader question/comment (my wife also had the same reaction) about whether Affliction is setting itself up for criminal liability by asserting its counterclaims. 

At the outset, I am not a tax lawyer (although I have worked on tax cases before) and I am not a criminal lawyer.  With that said, let's turn to the allegations and the law. 

Specifically, Affliction alleges that it agreed to pay Fedor $1,500,000 per fight (for Fedor's two fights) with Fedor receiving $300,000 per fight under a Fight Agreement and M-1 receiving $1,200,000 per fight under a Consulting Agreement.

Affliction claims "[t]he reason for the two agreements, Affliction was told, was for personal tax implications."  Moreover, Affliction alleges that the "Consulting Agreement was a sham as there were no obligations created under the Consulting Agreement, other than the payment of $1,200,000 per bout directly to M-1 as opposed to Fedor."


In other words, Affliction has alleged that it intended to and agreed to pay Fedor $1.5M, but agreed (Affliction does not claim that it objected to this request and, ultimately, it agreed) to structure the transaction with two separate agreements because it was told that M-1 and Fedor wanted it that way "for personal tax implications." 
 
In its counterclaims, Affliction alleges that the Consulting Agreement was created in "contravention to an express provision of the [tax] law" and alleges that "[a]ny willful attempt to  evade or defeat taxes is a crime pursuant to Section 7201 of Title 26 to the United States Code."

Section 7201 provides as follows:

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.

This provision provides a basis for criminal (felony) liability for evading tax under Title 26 of the United States Code.

Under Title 18 Section 2 of the United States Code:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.  

Assuming the allegations are true and that M-1 and Fedor can be held liable, by alleging that it agreed to pay $1,200,000 to M-1 under a consulting agreement when:  (1) it was allegedly told that the transaction had to be set up this way for tax implications; and (2) it alleges the Consulting Agreement was a sham because there were no obligations created for M-1, has Affliction exposed itself to liability as an aider and abettor?

What do you think?

Fight Lawyer

Affliction Counterclaims Against Fedor And M-1 Global

On May 26, 2010, Affliction filed counterclaims against Fedor and M1 Global seeking (1) a declaration from the Court concerning whether the Consulting Agreement between Affliction and M-1 is valid and enforceable; and (2) rescission and restitution of the Consulting Agreement.  Affliction is seeking $2,400,000 with interest. 

The crux of Affliction's claim is that it agreed to pay Fedor $1,500,000 per fight (for Fedor's two fights out of what was supposed to be three with Affliction).  Affliction claims it paid Fedor $300,000 per fight under a Fight Agreement with Fedor and paid $1,200,000 per fight to M1 Global under a Consulting Agreement.  Affliction claims "[t]he reason for the two agreements, Affliction was told, was for personal tax implications."

Specifically, Affliction claims that the "Consulting Agreement was a sham as there were no obligations created under the Consulting Agreement, other than the payment of $1,200,000 per bout directly to M-1 as opposed to Fedor."

It is on this basis, i.e. that the Consulting Agreement was created in "contravention to an express provision of the [tax] law," that Affliction is seeking to rescind the Consulting Agreement and get back $2,400,000. 

I took a quick look at the Consulting Agreement, which is described as a promotional and consulting services agreement, and it certainly appears that there were a number of services that M-1 was supposed to be providing, including, inter alia, "Fighter scouting," "International Bout Consulting," Television Related Opportunities," "International Sponsorship" etc. 

I will continue to monitor, but these are serious charges by Affliction.

Fight Lawyer

Can The Tennessee Athletic Commission Assess Fines Against An Individual Who Was Not Licensed in Response To The Strikeforce Brawl?

As Loretta Hunt at Sherdog reports here, the Tennessee Athletic Commission handed out five individual suspensions and recommended fines in response to the Strikeforce brawl I have written about here, here, and here. While the TAC will not disclose the identities of the individuals, Sherdog has confirmed four of the six as Shields, Mayhem, Melendez, and Nick Diaz. Sherdog has also confirmed that Nate Diaz received a complaint letter from the TAC -- Nate was not licensed as a cornerman that evening. According to Sherdog, one of the individuals for whom the TAC recommended a fine was not licensed by the TAC on the night in question.


The question is, can the TAC exercise authority to assess fines against an individual who was not licensed by the TAC?

The answer is that, as is often the case with statutory and regulatory interpretation, the relevant provisions are ambiguous and it is not entirely clear.

At the outset, it is clear from the Tennessee Athletic Commission Act of 2008, Title 68 Chapter 115 of the Tennessee Code, and the TAC's implementing Rules, Chapter 0145-04 of the Rules of Tennessee Athletic Commission, that the TAC has the authority to assess fines (on top of suspensions) against any person licensed by the Commission.

Specifically, the TAC Act of 2008 provides in relevant part as follows:

(a) If disciplinary action is taken against a person by the commission pursuant to this chapter based on the conduct of the person that either directly or indirectly relates to a professional contest of unarmed combat, the commission may, in lieu of or in addition to revoking or suspending a license or permit issued to the person, impose a penalty not to exceed two hundred fifty thousand dollars ($250,000).

Under this language, the beginning of the sentence is certainly broad enough to cover a non-licensed individual as it applies to any "person" directly or indirectly involved in a professional contest of unarmed combat. However, the second part of the sentence (between the commas), by stating that the commission may "in lieu of or in addition to revoking or suspending a license or permit," could at least arguably be interpreted to mean that the "person" must have a permit or license in order to be assessed a fine under the final part of the sentence.

Alternatively, you could read the language between the commas as merely clarifying that for those persons in the first part of the sentence that do have a permit or license, the fine in the final part of the sentence can be added on or assessed even if no suspension is handed down. In other words, the "in lieu of" language can be read as only clarifying how the fine provision applies in the event that the "person" in the first part of the sentence is also licensed.

The TAC Rules (remember the Rules are promulgated under the Code and, therefore, cannot conflict with or exceed the scope of authority granted under the Code) provide in relevant part as follows:

(1) The Commission may, in a lawful proceeding with respect to any person licensed or required to be licensed, in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty for a violation of a statute, rule or order, enforceable by the Commission, in accordance with the following schedule...

I do not see any additional information about what "required to be licensed" means, but if a non-licensed individual was acting as a second or a manager -- despite not being licensed as such, theoretically he would be "required to be licensed" and subject to a fine under this Rule. Perhaps the TAC would argue that by being in the ring after a fight, a license is "required."

The questions that remain, however, are (1) under the Code, does the TAC have the right to assess a fine against a non-licensed person, i.e. how should the language between the commas be read; and (2) assuming "required to be licensed" is within the authority of the TAC under the Code (point 1 above), was the non-licensed individual acting in a capacity that "required" a license.

I reached out to Jeffrey Mullen, Director of the TAC, to ask for his position concerning the source of the TAC's authority to assess a fine against an individual who was not licensed and how the fines are enforced. He referred me to Christopher Garrett, Director of Communications of the Department of Commerce & Insurance.

Mr. Garrett responded as follows:

Tennessee Code Annotated 56-1-308 (a) states, 'With respect to any person required to be licensed, permitted, or authorized by any board, commission or agency attached to the division of regulatory boards, each respective board, commission or agency may assess a civil penalty against the person in an amount not to exceed one thousand dollars ($1,000) for each separate violation of a statute, rule or order pertaining to the board, commission or agency. …'

The Athletic Commission is attached to the Tennessee Department of Commerce and Insurance, Division of Regulatory Boards.

Additionally, T.C.A. § 68-115-204(a) states '.... No person shall participate, directly or indirectly, in any professional contest of unarmed combat unless the person has first applied for and received a license from the commission." T.C.A. § 68-115-209(a) states, 'The commission may, in accordance with the Uniform Administrative Procedures Act, ... suspend or revoke the license of any person issued pursuant to this chapter who:…(10) Has violated any provision of this act, any rule duly promulgated hereunder, ...' T.C.A. § 68-115-216(a) says, 'If disciplinary action is taken against a person by the commission pursuant to this chapter based on the conduct of such person which either directly or indirectly relates to a professional contest of unarmed combat, the commission may, in lieu of or in addition to revoking or suspending a license or permit issued to the person, impose a penalty not to exceed two hundred fifty thousand dollars ($250,000)." [emphasis supplied by Mr. Garrett]

The disciplinary actions will be handled internally by the Commission. If there is an appeal of the Commission's final decision, the appeal would be by writ of certiorari to the Davidson County Chancery Court. At that point, the Tennessee Attorney General's Office would likely get involved.

Despite Mr. Garrett's email, I think there is still ambiguity here under the relevant provisions I analyzed above. His reference to 56-1-308 expands the civil penalty authority of the Commission to persons "authorized" by the TAC (on top of "permitted" or "licensed"), but this provision should be trumped in any fair analysis by the more specific Tennessee Athletic Commission Act of 2008 addressed in my analysis that provides for a penalty up to $250,000.

Further, even if 56-1-308 applies, it is still unclear if the non-licensed person at the Strikeforce brawl was "authorized," whatever that means. Finally, because this provision only authorizes a $1,000 penalty (as opposed the $250,000 maximum in the 2008 Act) and because (according to the Sherdog article) a penalty in excess of $1,000 is being assessed, I don't think the TAC is relying on 56-1-308.

Fight Lawyer

Interview with Rampage

In anticipation of UFC 114, my good friend Toshitaka Kondo's interview with Rampage is posted over at Complex Magazine.  Check it out. 

Fight Lawyer

Can Mayweather Bring Postive Change To Boxing?

I read this article today by Allan Scotto at Maxboxing.com and think it intelligently addresses potential broader ramifications of Mayweather's decision to forego challenging for Mosley's WBA belt in their recent fight. 

As you may recall, I posted here about the basis for Mayweather's decision, i.e. money that he would have been required to pay to the WBA, but, unlike Mr. Scotto, I did not address the more fundamental issue of how Mayweather's decision could change the face of boxing for the better.  When I wrote my post, the PPV buy number was not in and so there was only speculation about how successful the fight was despite the fact that no belt was on the line. 

It turns out that with approximately 1.4 million buys, the fight was very successful.

In his article, Mr. Scotto explains the problems with the "Alphabet Soup" of belts and addresses the reason for the proliferation of sanctioning bodies and belts as the result of "greed and corruption" that "took hold, due, in no small part, to most television executives knowing very little about boxing, making them pawns of a larger system rather easily."  Mr. Scotto continues, "[t]he entire process became corrupted as rankings were manipulated by promoters, and more and more sanctioning bodies sprang up, all looking for a piece of the pie, while some promoters latched on to these new 'belts' as a way to promote almost any card as featuring a 'championship' fight, in the hopes of selling more tickets." 

However, with Mayweather opting to forego challenging for Mosley's belt, Mr. Scotto recognizes as follows:

By refusing to pay the WBA for the right to fight for Mosley’s belt, Mayweather sent a very strong message to not only them, but to any fighter that is still paying those fees.

Mayweather and Mosley proved that if you put two fighters in the ring, who fans actually want to see fight, you can still do 77 million dollars in pay-per-view revenue, without any help from any sanctioning body, thank you very much.

Numbers don’t lie, and let’s face it, 77 million is a whole lot of numbers, most of them zeros.

The question now becomes, after seeing what happened, will the fighters who have fought their way into recognition also balk at paying a percentage of their purse to organizations that do nothing for them?

If they realize, like Mayweather did, that the system is so watered down that it makes all the belts meaningless, they just might.

Mr. Scotto concludes, optimistically, by noting that the net effect of Mayweather's path could lead to positive change in the sport, including more tournaments like the Showtime Super Six where a definitive champion is crowned and/or, overall, more competitive championship fights.

With his unwavering position with blood testing requirements in boxing and his apparent recognition that the belts and the sanctioning bodies are watered down and virtually meaningless, Mayweather may just be effecting the change the sport needs to come back to where it was in years passed.


Fight Lawyer

Mayweather Pacquiao Court Fight Continues

On December 30 2009, Pacquiao filed a defamation action against Floyd Mayweather Jr., Floyd Mayweather Sr., Roger Mayweather, Mayweather Promotions, LLC, Richard Schaefer, and Oscar De La Hoya that is pending in the United States District Court for the District of Nevada. 

The crux of the complaint is that the defendants allegedly started and continued to defame Pacquiao in connection with the first round of fight negotiations between Mayweather Jr. and Pacquiao by allegedly stating (or implying) that Pacquiao was using performance enhancing drugs. 

It appears from the complaint that all of the alleged defamatory statements are oral and, therefore, if spoken and not true, would amount to slander, as opposed to libel, i.e. written defamation.

At this point, Schaefer and De La Hoya have filed a motion to dismiss the complaint (Mayweather Promotions joined that motion) and, on May 17, 2010, Mayweather Promotions filed its own motion to dismiss the complaint.  For his part, Mayweather Sr. has filed an answer (not a motion).  Finally, Roger Mayweather failed to appear and a default has been entered against him. 

At the outset, I don't think there can be much of a dispute concerning the fact that Pacquiao is a public figure (it is harder for a public figure to prevail in a defamation action than it is for a non-public individual because the public figure must allege actual malice, which is defined as knowledge that the statement was false or reckless disregard of whether it was false or not).  Thus, ultimately, it will be more difficult for him to prevail in his defamation action than a non-public figure.

I did take a quick look at the complaint and the moving papers and it seems pretty clear that at least some of the alleged statements at issue are nonactionable opinion.  For example, the basis for the claims against Mayweather Promotions is the following alleged statement by Leonard Ellerbe:

"This is a simple question.  If you have nothing to hide, then why not comply?"

Here, I do not think this alleged statement is defamatory because Ellerbe is not asserting a fact (remember statements of fact can be defamatory whereas statements of opinion generally are not) about Pacquiao.  Instead, he is speculating about potential motivations Pacquiao may have for not agreeing to random blood testing with no black-out dates leading up to a fight. Therefore, it seems to be protected opinion and nonactionable. 

I also think there are certain statements that are much more likely to be defamatory -- and certainly should survive a motion to dismiss.  For example, Schaefer is alleged to have said that he is "sure Pacquiao was using performance-enhancing drugs."

At the outset, the general theme of Schaefer and De La Hoya's motion is that the alleged statements are true -- the brief points to Pacquiao's jump in weight classes, his change of appearance, his ability to withstand Cotto's punches, reporters' and other fighters' alleged similar claims (the motion also seems to take issue with the fact that Pacquiao hasn't sued more people which has absolutely no relevance to this defamation action) etc.  However, while it may turn out that Pacquiao was using PEDs -- and truth is an absolute defense to defamation -- at this stage in the proceedings these arguments amount to speculation and are a transparent effort to muddy the waters on a motion to dismiss (a preliminary motion without any discovery where the court accepts the allegations as true).  In this regard, the motion also attacks Pacquiao and his camp for allegedly lying about the differences between urinalysis and blood testing -- again, this is irrelevant for purposes of the motion to dismiss. 

Similarly, as to the merits, Schaefer argues that this is not defamatory for a number of reasons that are not particularly compelling at this stage.  While Schaefer puts in a declaration stating that the alleged statement was never made, at best, the declaration simply creates an issue of fact concerning whether the statement was made (Pacquiao's word against Schaefer's) requiring that the motion be denied.

Schaefer also argues that the alleged statement is alleged to have taken place during a broader discussion about Pacquiao and that this context is necessary (and the absence of allegations concerning the context is fatal to Pacquiao's complaint) to determine whether the statement can be construed as defamatory.  Again, on a motion to dismiss, the court accepts the allegations as true and, ultimately, there are issues of fact concerning the context of the alleged statement.  At this stage, Pacquiao appears to have satisfied the pleading requirements.  Schaefer also argues that the statement is protected opinion.  At this stage, I don't think the alleged statement (assuming it was said) that he was "sure" Pacquiao was using PEDs is fairly considered opinion in the context in which the statement appears in the complaint.  There may ultimately be an argument here given the broader context and the presence of disclosed facts, but not at the motion to dismiss stage. 

Pacquiao will now oppose the motions and I will continue to monitor. 

Hopefully they will agree to fight now in November and as part of that negotiation they will agree to dismiss this action and move on. 

Fight Lawyer
 

I Am Not Buying Floyd Sr.'s Opinion on Pacquiao and Drug Testing

I read this article today containing this quote from Floyd Mayweather Sr. on his take on Pacquiao's willingness to agree to a 14-day cutoff now (when he wouldn't agree to anything less than 24 days the last time around):

"Why the sudden change of mind? Pacquiao walked away from the opportunity to face my son in March, so why has he had a sudden change of mind and is now agreeing to all forms of testing."  “Six months have passed, sufficient time to clear your body of any illegal substance, that’s why."

I am no expert on drug testing or Pacquiao's motivations, but this statement really makes no sense given that Pacquiao was willing to submit to blood tests the last time around leading up to the cutoff date.

The only advantage that a 24-day cutoff presents over a 14-day cutoff is the extra 10 days leading up to the fight where a fighter could use a banned substance and derive some benefit and potentially get away with it.

In other words, under either a 14-day or 24-day cutoff the fighter has to be willing to submit to a test at any point LEADING up to the cutoff date and Pacquiao was ALWAYS willing to agree to blood tests in the months leading up to the fight -- or from December to a point in February.  So, the notion that somehow he is only willing to agree to 14-days now because he has cleaned up over the last six months doesn't hold water when he was willing to submit to blood tests six months ago.

Theoretically, I guess, Floyd Sr. could be saying that Pacquiao knew 24-days was a non-starter for Mayweather the first time around and that sticking with 24-days was his way of ensuring that there would be no fight -- and no testing -- giving him time to get clean.  However, I don't really think this is what he is trying to say.

I won't opine on what Pacquiao's reasons are for the change, but it is more likely the money involved, the legacy implications, and/or the negative inferences people drew (and are drawing) from his unwillingness to agree to a strict testing protocol the first time around.

Fight Lawyer

Tonight's Fights and More On Pacquiao Mayweather

Great boxing tonight on Showtime with Yonnhy Perez v. Abner Mares (bantamweight title fight) and then Vazquez v. Marquez IV, which we can only hope is exciting as their three other bouts. 

Following up on this post after my Q&A with Erin Hannan, Communications and Outreach Director with the USADA (United States Anti-Doping Agency), in which it seemed unlikely that the USADA would participate even if Mayweather and Pacquiao could come to terms on a 14 day cut-off (or something between 14 days and 24 days), according to Kevin Iole, the USADA confirmed that it would NOT participate in any program with black-out dates for testing.

In this article, Kevin discusses the fact that Pacquiao now may be amendable to a 14-day cutoff if a small amount of blood is drawn, which would have (likely) made this fight happen during the last round of negotiations. 

However, according to Kevin (I followed-up with him), Mayweather is on record as saying he will "NEVER" agree to a 14-day cutoff. 

Bottom line, my optimism over this fight happening is quickly fading.... I will continue to monitor.

Fight Lawyer

Update on MMA in New York

Unfortunately, nothing new to report on efforts to lift the ban on MMA in New York.  As I posted here, here, and here, there are proposals to lift the ban (legislative initiatives and Governor Paterson's 2010-2011 budget proposes lifting the ban and estimates revenue of $2.1 M if MMA is legalized).  However, no progress appears to have been made on either of these fronts since I last wrote a month ago.

As a refresher, the item to be addressed is the prohibition placed on "combative sports" contained at Sections 5-a of Chapter 912 of the laws of 1920.

First, with respect to the Governor's Budget, "Lawmakers in Albany are two months late in passing a state budget for fiscal year 2010-11, which began April 1."  Even when a budget gets passed that the Assembly, the Senate, and the Governor can agree on, remember, it must have a provision lifting the ban on MMA.  As I stated before in response to this article, I do not take it as a good sign that the Assembly's version of the budget bill (unlike the Governor's budget and the Senate's version) does not contain a provision amending the law that contains the ban.  While the Assembly's version of the budget is not determinative, the Assembly Speaker is very powerful and, assuming he is opposed (it is not clear where he stands, but the fact that the Speaker excluded the provision from the Assembly's version of the budget sheds some light I think), it does not look good.

Second, there is a bill in the Assembly amending Section 5-a, A02009, that is currently referred to the Committee on Tourism, Parks, Arts and Sports Development.  However, there has been no action taken on this bill to date in the Tourism Committee.  While it took until June 3, 2009 for an identical version of the bill to get passed through the Tourism Committee last year, remember that the bill ultimately stalled out in the "Ways and Means" Committee.  This necessitated reintroduction of the bill this year -- starting the process all over again.

It is possible, of course, that the budget will amend Section 5-a and it is possible that the bill will get passed through the regular legislative process.  However, the fact that there has been no movement on the legislative front and the fact that the Assembly's version of the budget does not contain a proposal to lift the ban, makes me think this will not be the year that MMA comes to New York. I will continue to monitor the situation.

Fight Lawyer   

Strikeforce Drug Tests

Following up on my post here, I reached out to Tim Lueckenhoff (the Commissioner of the Missouri Office of Athletics) to find out if the drug test results from Saturday's Strikeforce card would be made public and if any actions have been taken with respect to any of the fighters on the card:

Q:   I was just wondering if the results of the test are made public, or if you at least can confirm that nobody tested positive for any banned substances?

A:  Test results are not public, if the office files an administrative case at the Administration Hearing Commission here in Missouri, the complaint would become public and a records request would have to be made through that agency. No referrals have been made at this time.

Q:  When you [say] referrals, I assume you mean that no test results have been referred by your office to the Administration Hearing Commission for further action?

A:  That is correct at this time.


Obviously, Mr. Lueckenhoff is not saying that the test results were all negative, just that no action has been taken at this time.


So while this is not necessarily the last word, at least for now, so far so good.
 
Fight Lawyer   

Is it Surprising that Shields Has Not Started Negotiating with Strikeforce?

I read this piece by Josh Gross that discusses, among other things, the frequently discussed possibility that Jake Shields could potentially get picked up by the UFC -- leaving the Strikeforce middleweight title vacant -- now that his Strikeforce contract has expired.  According to the article (and Shields' father), there have been no discussions between Strikeforce and Shields' camp concerning a new contract since the Henderson fight. 


While I have not seen the contract, there are two interesting provisions referenced in the article that likely explain the lack of any negotiation at this point.

The first, an exclusive negotiation provision, would provide that the parties to the agreement, i.e. Shields and Strikeforce, will negotiate exclusively for a set period of time upon termination of the contract. That is, Shields -- for whatever period is set in the contract (I don't know what it is and the article doesn't say, but whatever the term, it expires in three weeks according to the article) -- must only negotiate with Strikeforce (no other organization) to see if they can come to terms on a new agreement. As a practical matter, this provision would prevent Shields from negotiating with the UFC at this point.

The second applies after the exclusive negotiation period ends and gives Strikeforce the right of first refusal, i.e. the right to match Shields' best offer from any other organization.

Basically, if Strikeforce and Shields can't come to terms during the exclusive negotiation period, Shields is free to negotiate with whichever organization he wants, including, of course, the UFC. However, once he gets an offer from, say, the UFC, Shields has to give Strikeforce an opportunity to match those terms before Shields can accept the UFC's offer. If Strikeforce were to match the UFC's hypothetical offer, Shields would need to accept Strikeforce's offer and stay on with Strikeforce.

Because there is a right of first refusal in this contract, it is not surprising that Shields is not yet negotiating with Strikeforce as described in the article. Specifically, the exclusive negotiation period in the contract is virtually meaningless for Shields as a champion because Shields can only gain real leverage and get more favorable terms by talking to other organizations and bidding them against each other.

In other words, Shields can -- and will I would imagine -- use Strikeforce and the UFC to bid up his future pay.  If, however, he entered into a deal with Strikeforce now, during the exclusive period, he would lose the inherent leverage that competition (and the market) provides. 

In case you were wondering, this is probably why the "source" quoted (below) in the article mentioned that Strikeforce is considering waiving the exclusive negotiation period early -- because it realizes no real negotiating will happen until Shields gets the benefit of finding out his worth in the marketplace.

Yet one source with knowledge of Strikeforce's thinking regarding the 31-year-old Shields told SI.com the promotion has discussed releasing him outright before an exclusive negotiating period concludes three weeks from now. Once that expires, Strikeforce would also has the ability to match any offer made on Shields, whose 25-4-1 record features 14 consecutive wins since 2004.

Fight Lawyer

Shine Still Planning Another Show and More Detail on What Happened on Saturday

As reported here, Shine's matchmaker, Ron Foster, is no longer leaving the company and the organization plans to keep going.  The article also provides more inside detail on what exactly happened on Friday with the NC Boxing Authority. 

I had been wondering why Devin Price was stuck in Florida with the fighter's checks and why he hadn't left Florida Friday evening after court recessed.  In theory, if he was a witness, he could have been on and off the stand on Friday during the 5 or so hours of testimony giving him plenty of time to get to NC and resolve whatever purse issues came up.


At a minimum, he could have left after the hearing was over -- I think 1:30 on Saturday -- because he surely didn't need to stick around to hear the result, i.e. his lawyers could have relayed that to him over the phone.

According to Ron Foster, however, Price didn't have the option to leave:

"As far as the purse, Devin had the fighters' checks, so yes they were not there by 6:00 p.m. That was not his fault. He was stuck in court all day and was told that if he left he would be held in contempt of court," Foster explained. "(There) was no way that he could have know[n] sic that he would be forced to stay in court all of Friday and Saturday." [sic]

This sounds very strange to me.  Why would the judge care if Price left the state to go handle his promotion -- it isn't like he is a criminal trying to flee the state.  For that matter, beyond providing whatever necessary testimony, I don't really see why the judge would care at all if Price was there, as opposed to his lawyers and any company representative.

I am not saying Shine made this up because I guess anything is possible, but it doesn't sit right with me.  
 
Fight Lawyer

My Take On Jake Rossen's Assessment of the Shine Situation

I just read this article by Jake Rossen that discusses, among other things, Shine and Mayorga's legal dispute with Don King Productions.  While I won't opine on his statements about Mayorga's true motive for signing on with Shine (that he wanted to get DKP's attention and a fight) or his statement that Mayorga would have gotten demolished and was not qualified to fight Din Thomas, I do take issue with his legal conclusion that Shine's position was thin because I think it does a disservice to MMA as a sport that is distinct from boxing.

Specifically, Rossen states as follows:

"In fact, the show’s cancelation is one hundred percent a result of their building an event around the toothpick-supported premise of Mayorga breaching a valid contract. We’re a long way from the ninjitsu experts of the 1990s, but this business will always be home to amateurs."


I have read the contract (and posted about it numerous times) and think that the correct interpretation of the agreement is that it only covered "professional boxing bouts" for Mayorga as a "professional boxer."  While there is some ambiguity about what "bouts" with a little b means in the Exclusivity provision of the contract (or whether it is broad enough to mean something more than boxing, which is the crux of the entire agreement), I think on balance bouts should not have been read to preclude Mayorga from participating in the independent sport of MMA.  While the judge obviously disagreed, this is not the final word and it surely does not mean that he is right and/or that his decision will withstand scrutiny on appeal.

I have not seen the judge's decision in Florida, but have seen bits and pieces from other reporters.  It appears from everything I have seen that the judge in Florida focused not on what the contract said, but instead focused on why Shine set up the fight in the first place, which appears to be what Mr. Rossen is focusing on.  Obviously, nobody can credibly dispute that Shine set up the fight because of Mayorga's history as a boxer.  Indeed, the title of the card, "Worlds Collide" evinces that intent.  I can't imagine that Shine would not have stipulated to that fact -- which would have avoided two days of testimony -- if that was what the judge was focusing on.  It is no different than the UFC bringing over Brock Lesnar to fight MMA -- the UFC would have freely admitted that the lure of Brock Lesnar is his wrestling prowess and to see how that will work in an MMA fight where Lesnar, necessarily, would rely on other disciplines. 

The crucial issue here is that MMA is not boxing and Mayorga was entering the ring as an MMA fighter -- with mma gloves etc.  Sure, he would have thrown punches, but he also likely would have at least attempted to throw kicks, elbows, knees, and would have tried whatever he learned in six (6) months to defend himself on the ground.  It is no different than Lesnar entering the cage as a wrestler.  Sure, he would have relied on wrestling to some extent but he also was going to throw punches, kicks and whatever else he needed to do to win. 

The bottom line, boxing and MMA are different.  If you need evidence of that, simply look at the relevant legislation across the country.  The two sports are treated differently. 

Since we are talking Florida, under the relevant Florida statute, Title XXXIII, REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS Chapter 548.002(3) and (16), "boxing" is defined to mean to "Compete with the fists" whereas "mixed martial arts" is defined to mean "unarmed combat involving the use, subject to any applicable limitations set forth in this chapter, of a combination of techniques from different disciplines of the martial arts, including, but not limited to, grappling, kicking, and striking." 

For another example, simply look at New York where boxing is permitted and mixed martial arts is banned.  Under this judge's reasoning, if Mayorga was going to fight Lesnar in a "mixed martial arts" fight (or another professional boxer) in New York, no problem I guess because both wrestling and boxing are permitted.  This logic is flawed.  The two sports are different.

The judge should have determined whether the promotion agreement covered Mayorga (or rather prevented Mayorga from competing) in a bout that is distinct from boxing, i.e. MMA.  With all due respect to the judge and Mr. Rossen, the terms of the contract should have prevailed here and, at best for DK, I guess you could say the contract was close.

While Shine could have (as Mr. Rossen suggests) to be 100% sure sought a declaratory judgment in December that MMA was not precluded under Mayorga's promotion contract, I have no reason to doubt that Shine did do its diligence -- having lawyers look over the agreement who reached an opposite conclusion from this judge.  For his part, DK could have just as easily moved for the injunction in December, instead of waiting until the week before to enjoin Mayorga from competing.

BTW, I have still not heard the official reason from the NC Boxing Authority as to why the plug was pulled.  Once I find out, I will post more.

UPDATE

MMAJunkie is reporting that the Boxing Authority pulled the plug because of fighter purse issues and no doctor.  Does not bode well for getting at DK's bond if Shine is ultimately right on the merits because DK can argue that his injunction didn't cause any damages to Shine or Mayorga because the fight would have been canceled without it.


Fight Lawyer

More on Shine

According to Karyn Bryant, Shine fighters were told they will receive 25% of pay -- a nice gesture if it is true and, of course, depending on what the pay looked like in the first place.  Kevin Iole reports here that Shine CEO Devin Price told him the following last night:

“'I’m not concerned about the money, quite honestly,' Price said. “I feel very badly for the fighters. They were ready to go and we wanted to put the show on (without Mayorga), even after the judge gave Don King injunctive relief. We felt we had a fantastic card that fans would appreciate. The commission, at the last minute and for reasons I’m not sure of, decided to cancel the event."

“'We are in the process of working out how the fighters will be paid, how much that will be. But we’re a fighter’s organization and we’re going to take care of them.'”

In his interview with Kevin Iole, Price said he was in Florida for the hearing and did not know the NC Commission's reason for pulling the card.  Karyn Bryant believes the NC Commission pulled the plug on the entire card because it wasn't confident about Shine's finances.  We should know more about this tomorrow.
 
I am out of pocket for the next few hours, but the interesting question--and one I will probably have to wait until tomorrow to attempt to answer--is did the NC Commission's decision have anything to do with the Mayorga debacle.  If it didn't, i.e. it was totally independent, that would be very good for DK and, more importantly, his $1M bond in the event he is ultimately wrong on the promotion contract -- I still think he is -- because he could argue that his injunction didn't cause any damages to Shine or Mayorga because the fight would have been canceled without it. 

Just throwing that out there.  We will need to know more from the NC Commission to iron that out. 

On a different note, the Strikeforce card did not disappoint and while I have not had a chance to watch the HBO fights yet, I read that Khan was very impressive.

Fight Lawyer

Mayorga Enjoined From Fighting Tonight and Shine Card Off

Josh Gross from SI reporting that "Broward County Circuit Court Judge Marc C. Gold ruled in favor of Don King Productions, granting injunctive relief at 1:20 p.m. ET."  I am anxiously awaiting the judge's analysis.

As you may know from my previous posts, I am very surprised that the judge ruled this way given that the contract (which I have posted about before) is an exclusive promotion contract for "professional boxing bouts."  I will say, however, that the fact that the judge heard so much testimony yesterday and today did not bode well for Shine and Mayorga because if he agreed with (what I believe is the correct) interpretation of the contract, there would have been no reason to hear so much testimony presumably on irreparable harm.  At best for DK, I thought (and think) the contract was ambiguous and that shouldn't net you the emergency injunction.

Also, as I had stated, the fact that DK waited as long as he did to move for the injunction should have cut against him (even though the contract provides that a breach by Mayorga rises to irreparable harm).  Nonetheless, according to this article, DK said the following:

"Mayorga is a crazy guy. He’s liable to stick out his chin to show how tough he is – the Joe Palooka syndrome. I’m concerned that the man is going to get hurt, with the kicks and elbows and knees, slamming his head. He’s not training. He was drunk and he called Dana [Jameson, a Don King Productions official] two days ago. This can’t be allowed to happen."

So, putting the contract aside (which the judge obviously can't do when weighing the likelihood of success on the merits -- a key prong to the injunction analysis), maybe the judge was legitimately concerned that Mayorga would be injured going in to the fight unprepared against Thomas, a BJJ blackbelt, and would be unable to fulfill his obligations under the promotion contract. 

Again, I am very curious to see the judge's analysis.  Specifically, why did he read the word "bouts" broadly enough to prevent any fight when the agreement was clearly discussing exclusivity to engage in "professional boxing bouts" and clearly only covered Mayorga as a professional boxer.

UPDATE
Bizarre continued.  Josh Gross is now reporting that Shine will ignore the injunction and proceed as planned.  Contempt of court is never the way to go.  That said, I think (admittedly I don't practice in North Carolina, don't know how emergency procedures work there, including how easy it is to get a judge on a Saturday, and I don't practice in Florida) that as a practical matter there is very little (or nothing) a state court judge in Florida can do to stop Shine and Mayorga from going forward at this point.  The fights are in North Carolina and it is a Saturday (so any tribunal in North Carolina is closed).  An order from a state court judge in Florida, by itself, is not going to stop the fight.  I guess it could be different if Mayorga was present in Florida right now, but he isn't.

No matter what, I think Shine's lawyer is going to have a bad time in Florida before this judge next week if the fight does go on. 

I will continue to follow this and will hopefully see the judge's reasoning.

UPDATE

Josh Gross is reporting that the judge is making DK post a bond and it is a lot of money.  This is not surprising.  Rule 1.610(B) of the Florida Rules of Civil Procedure provides in part as follows:

Bond. No temporary injunction shall be entered unless a bond is given by the movant in an amount the
court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if
the adverse party is wrongfully enjoined. 
 
So, the Court needs to factor in what Shine and Mayorga stand to lose if ultimately DK does not prevail....wonder what that number will be.
 
Josh Gross also reporting that judge indicated that failure to obey would result in "severe sanction."  The judge probably has a lot of discretion in this regard.

UPDATE

Sherdog is reporting that DK's lawyer stated as follows:

“The court found that Mayorga is not a legitimate mixed martial artist and that Shine was not legitimately promoting him as one for this event,” said Brito, “and that the only reason anyone was attending this ‘Worlds Collide’ event was to see how Mayorga faired as a boxer against an MMA fighter.”


If this is true, it seems strange.  I am surprised the judge would make a factual determination concerning whether Mayorga is a "legitimate mixed martial artist."  Sure, he is a boxer, but why does that mean that, with training, he can't also compete as an MMA fighter.  Is he any less "legitimate" than K-1 fighters who switch over to MMA?  No disagreement that Shine was interested in Mayorga because of boxing, but they were not promoting him as a boxer for this fight--it would be one thing if he was fighting Din while wearing boxing gloves.  Sounds odd to me. 

UPDATE

Kevin Iole of Yahoo! Sports just told me that the judge entered the injunction (at least in part) because he believed the fans only want to see Mayorga fight because he was a champion boxer and because the title of the promotion is Worlds Collide, apparently referring to a match-up between boxing and pure MMA.

The issue for the court as I see it was whether the language in the agreement prohibiting Mayorga from competing in any "bouts" other than DK promoted professional boxing bouts gave DK the right to stop Mayorga from competing in MMA. 

Seems like an end-run around the issue here to rely on (1) why fans want to see the fight; and (2) what Shine chose to call the fight to stop Mayorga from fighting.  It would be one thing if Mayorga and Din were boxing--clearly it would have been prohibited--but that is not the case.

UPDATE

According to Kevin Iole, the bond amount is $1,000,000.  Here is his article on the ruling.  Still appears that the judge is not focusing on the salient issue of whether the bout (as an mma bout) is precluded under the promotion contract.  Not sure why he needed testimony about the fact that fans wanted to see the fight because of Mayorga's past success as a boxer or why he needed testimony about the meaning of "Worlds Collide"--Shine would have likely stipulated to that because it doesn't have anything to do with the contractual provision at issue in my opinion.

I think there is clearly a missing link here.  It is like saying Brock Lesnar's MMA debut was a "wrestling" bout because the fans wanted to see a wrestler get in the cage and fight MMA?

UPDATE

According to Karyn Bryant via Josh Gross, Mayorga is out tonight and the new headliner is David Heath v Ninja Rua.  Sucks for Din Thomas, but the right move to abide by the injunction. Ultimately, I still think they should (and will) get some of that $1,000,000 bond either with Judge Gold or, more likely, on appeal.

I will continue to provide updates -- to the extent there are any.

UPDATE AGAIN

Reports now that the athletic commission in NC just pulled the plug on the entire Shine card.  Trying to find out why.

UPDATE

According to Josh Gross, who spoke to Devin Price, CEO of Shine, Price did not have a full understanding of why the card was canceled -- said Shine was prepared to go on without Mayorga fight--and said fighters will be compensated to some extent.  Kevin Iole also spoke to Price and confirmed the compensation piece.  He will have a piece up shortly on Yahoo!

Fight Lawyer

10K Down--Now To Tonight's Fights

Finished a 10K--paced my wife and she finished in good time so I am proud of her. I definitely did not prepare enough for the race, but cardio was good.  Everything else feels OK so no complaints.  

Here is the race (basically a little more than a loop in Central Park):

On to tonight's fights. Again, good options. Allistair Overeem takes on Brett Rogers and Andrei Arlovski takes on Bigfoot Silva at Strikeforce St. Louis "Heavy Artillery" (on Showtime), Pauli Malignaggi takes on Amir Khan (HBO Boxing), and, finally, assuming the court in Florida does not enter an injunction preventing Mayorga from fighting, Din Thomas takes on Ricardo Mayorga at "Worlds Collide," a Shine Fight Promotion (PPV).


Still waiting for word on whether Mayorga will fight and don't know whether Shine has a back-up plan if he can't. Nonetheless, there are some other good fights on the Shine card.

Fight Lawyer

Mayorga Update

As reported here (I first heard this from SI's Josh Gross and Yahoo! Sports' Kevin Iole), the judge in the Mayorga, Shine, Don King dispute should be ruling this morning -- or at least the injunction hearing reconvenes at 10 a.m. EST.

I heard from Shine's CEO last night and he is optimistic that the ruling will go his way.  No word yet on whether Shine has a contingency plan if the judge enjoins Mayorga from fighting. 

I am off to run a 10k race now in Central Park (nice weather today in the City for a run but my calf is incredibly tight), but will be back later with tonight's fights and, hopefully, word on the court case down in Florida.

Fight Lawyer

Closing the Loop on Ortiz and Jameson

As reported here, the Orange County's DA Office has decided not to press charges for the alleged "incident" between Tito Ortiz and Jenna Jameson.  Given the flip-flopping here it does not surprise me that the DA's office "'declined to file charges based on insufficient corroboration to prove a case beyond a reasonable doubt.'" 

Drug Testing And This Weekend's Strikeforce Card

I was reading the article "Drug Testing Becomes Focus in Overeem-Rogers Bout" on Sherdog and came across the following quote concerning testing during this weekend's fights:


"Tim Luecken[h]off, commissioner for the Missouri Office of Athletics, said the regulatory body will test for 'all illegal and unprescribed drugs.' Lueckenoff refrained from discussing the drug testing timetable (pre-, post-fight or both) or what type of testing will be done per the agency’s testing protocol. The state athletic agencies that do test normally utilize urinalysis sampling, which can detect the presence of steroids and other drugs of abuse, but doesn’t account for the synthesized Human Growth Hormone (HGH)."

I had always just assumed that the testing protocol utilized by the various athletic commissions were described in detail in the operative rules and/or regulations of the respective athletic commission. That is, I assumed the rules dictated when testing was done -- whether before the fight, after the fight, or both before and after.

It turns out that under the Missouri Rules (specifically the Rules of the Department of Insurance, Financial Institutions and Professional Registration, Division 2040—Office of Athletics, Chapter 8—Mixed Martial Arts), not every fighter is required to submit to a drug test, i.e. the Office of Athletics has discretion to determine whether a particular fighter will be required to submit to a test.

Specifically, under 20 CSR 2040-8.050(6)(B):

"A contestant licensed by the office may be required to submit to any medical examination or test ordered by the office prior to participation in a bout, including a drug test. . . [f]ailure to submit to a test upon notification and/or failure to pay all applicable testing fees may result in disciplinary action being taken against the contestant’s license and the contestant being disallowed by the office to participate in the bout."

Based on the above, it is clear that the Office of Athletics has discretion to determine which fighters get tested. I reached out to Tim Lueckenhoff (the Commissioner of the Missouri Office of Athletics) and he confirmed that whether testing is required for a particular fighter is discretionary with the Office.

More importantly, Tim Lueckenhoff clarified that, despite the "may" language in the second sentence above -- which seems to mean that a fighter who refuses to submit to a required test could still be allowed to participate in a fight, the Office would NOT permit a fighter to compete if they refused a test, i.e. the Office would exercise its discretion under this provision and disallow the fighter from competing.


I think this is a very important clarification because otherwise a fighter (on this weekend's card for example) could refuse to submit to testing and potentially still be allowed to compete, which could potentially lead to injury etc. Equally important is Mr. Lueckenhoff's statement above in the article that testing would be required of the fighters this weekend -- a fact that he confirmed when we spoke.

After looking at the Missouri Rules, I checked the Nevada State Athletic Commission Rules and confirmed that the NSAC also has discretion to determine which fighters should be tested.   Like Missouri, once the NSAC determines that a fighter is required to submit to a test, the test is mandatory.

Specifically, NAC 467.850(5) provides as follows:

"An unarmed combatant shall submit to a urinalysis or chemical test before or after a contest or exhibition if the Commission or a representative of the Commission directs him to do so."

I reached out to Keith Kizer, Executive Director of the NSAC, and he confirmed both (1) that the Commission does not administer tests for every fight; and (2) that once the commission requests a test, the fighter does not have the option to refuse the test. According to Kizer, if the fighter refuses, "he or she would not be allowed to compete." Keith Kizer also stated that approximately 60-65% of fighters are tested in Nevada (sometimes before, sometimes after, and sometimes before and after). In addition, Mr. Kizer indicated that the NSAC administers approximately 700 tests a year. With respect to who gets tested, Keith Kizer stated that there "is no set pattern (nor would one want to have a set pattern), but for the most part those athletes tested are (1) both main event fighters, (2) any title fight fighters, and (3) the undercard winners (in case of a draw, we still test one of the athletes)."

Keith Kizer said it usually does not come up, but past history could factor in to the determination of who gets tested. Similarly, Mr. Lueckenhoff confirmed that past history and other considerations could factor in to who gets tested.

This is likely at play this weekend.

While some may argue that every fighter should be tested for every fight, I think testing approximately 60-70% is probably good enough given the deterrent effect, i.e. most fighters will not be willing to take the risk that they will be in the 60-70% and will be deterred from using drugs before a fight.

Given the scale of this weekend's Strikeforce card (and the allegations referred to in the Sherdog Article above), it should come as no surprise that the athletes competing will be tested. Moreover, Mr. Lueckenhoff was clear that the Office of Athletics takes drug use very seriously and issues severe sanctions if a fighter fails to test clean.

Let's hope this does not become an issue.

Fight Lawyer

Was the UFC Decision to Cut Daley Inconsistent -- Revisited

Following up on my post here explaining why I did not believe the UFC's decision to cut Daley based on his sucker punch at UFC 113 was inconsistent with the UFC's position with respect to Nate Diaz after the Strikeforce brawl, I came across this article where Dana discusses why he thinks his positions can be reconciled. 

It comes as no surprise that Dana White believes (at least according to his statements) -- and explains -- that the UFC's positions with respect to Nate Diaz and Daley are only superficially inconsistent.   I think his reasoning is on point -- largely because many of the things he said were things I had posted about, e.g., the effect of Daley's actions on efforts to get the sport sanctioned in other states, the fact that unlike the Strikeforce brawl, Koshcheck had no reason to be prepared for a punch as opposed to a handshake etc.

Nonetheless, and again not surprisingly, Dana White did take a jab at Strikeforce for allowing Mayhem to enter the cage after Shields had won the fight.

In this regard, and I have no concrete example that comes to mind (except maybe GSP and BJ Penn although I could be remembering wrong), but the UFC frequently permits -- indeed, probably encourages -- the next challenger to enter the cage to hype the next fight.  I think, again don't quote me, that after Carwin defeated Mir at UFC 111, Lesnar entered the cage to hype the next fight.  This crosses into boxing as well.  As a recent example, Mosley entered the ring after Mayweather's Marquez win and called him out (although Mosley has stated repeatedly that he belonged in the ring because of his affiliation with Golden Boy). 

While Dana specifically notes that the Diaz brothers presence in the cage (and their propensity to be involved in post-fight altercations) gave Strikeforce reason to prohibit Mayhem from entering the cage, I am not totally sold -- although I certainly agree that the Diaz brothers (Nick in particular) have been involved in post-fight shenanigans.

I am much more comfortable blaming the actors and not necessarily the organizations.  Mayhem entering the cage to hype a Shields fight can be good business just as Lesnar entering the ring and Mosley entering the ring can be good business.

Bottom line remains the same, Daley was completely out of line throwing an unprovoked punch after the fights and I think the UFC's positions can be reconciled.

Fight Sports Examiner

In case you didn't read about it here and here, you can see my analysis of the Mayorga Don King dispute appearing in Scott Heritage's article in the Fight Sports Examiner.  Now we wait and see what happens this week in court.  Fight Lawyer

Don King Seeks Injunction Preventing Mayorga's MMA Debut

According to this article on Sherdog, it looks like Don King Productions pulled the trigger in Florida and is seeking an injunction that would prevent Mayorga's MMA debut against Din Thomas set for this weekend. Here is my quick take.

At the outset, in order to get an injunction you need to demonstrate (among othr things) irreparable harm and a likelihood of success on the merits.  It is my opinion that DKP can demonstrate neither.  First, the fact that DKP waited six (6) months to bring this action severely undercuts any irreparable harm argument -- irreparable harm is when somebody is about to knock down your house and you need immediate relief.  This is not that case.  Moreover, DKP has no legitimate claim that it can't adequately be compensated with monetary damages if the fight does go on. 

Second, and more importantly, I think DKP loses on the merits.  As I posted here last week, the promotional contract at issue is exclusive to professional boxing bouts only and I think the contract favors Shine and Mayorga:

"'WHEREAS, Fighter is a professional boxer and desires to enter into an agreement with Promoter for it to be his exclusive promoter for future bouts;


I. PROMOTION. Fighter hereby grants Promoter the sole and exclusive right to secure and arrange all professional boxing bouts (Individually, a "Bout" and collectively, the "Bouts") requiring Fighter's services as a professional boxer and to secure, arrange and promote all such Bouts . . .

XI. EXCLUSIVITY. In consideration of the obligations of Promoter to secure, arrange and promote Bouts requiring Fighter's services, and to pay Fighter's purses, as provided herein, Fighter agrees that during the term hereof, Fighter shall not participate in any bouts other than Bouts promoted or co-promoted by Promoter or for which Promoter has granted Fighter prior written permission and Fighter shall not render his services as a professional boxer to any person, firm or entity other than Promoter, except with Promoter's prior written permission.'

It is clear from the above (I. PROMOTION) that DKP was only given exclusive rights to arrange and secure professional boxing bouts. It is also clear that Mayorga was only precluded from rendering his services as a "professional boxer" to another entity.

What is a little ambiguous (although I think in the overall scheme of things this would be resolved in favor of Mayorga), is that the first sentence of Section XI precludes Mayorga from participating in any bouts other than (the already defined boxing) Bouts so an argument could be made that bouts (with a little b) is somehow broad enough to preclude Mayorga from participating in an MMA match.

Weighing against this reading, of course, is the fact that Mayorga was only a professional boxer when he entered into the agreement and the fact that DKP was only given the exclusive right in Section I to promote Mayorga's professional boxing bouts -- no other types of bouts. Ultimately, I think Shine has the stronger argument. We will soon find out whether DKP is going to pursue this." 

Bottom line, I certainly don't think this language gets you to a likelihood of success on the merits.

The Sherdog article states that the complaint also relies upon language in the promotion agreement providing that Mayorga would not participate in any “'shows, interviews, programs, special events' or any related print, television, and Internet advertising opportunities without DKP’s approval."  This language, however, does not mention any "bouts" which is clearly the operative term used in the agreement to describe a fight.  To the extent that there is an ambiguity -- I don't think there is, it is apparent from reading the agreement that this language is dealing with media appearances and, in fact, it even appears under the ATTIRE/CLEARANCES heading.  Finally, this provision contains a liquidated damage clause, i.e. a clause that provides that for any breach by Mayorga it would be difficult to quantify damages so it sets the amount of damages at a predetermined amount, $15,000.  Thus, even if DKP was right that Mayorga was in breach by competing in MMA -- I don't think he is -- all DKP would be entitled to is money damages and the predetermined amount and not an injunction.

The final argument raised in the Sherdog article is that Mayorga could get hurt and that it may have a fight for him later this year.  No contract provision is pointed to in support of this allegation.

Fight Lawyer

Is the UFC's Position with Daley Inconsistent?

As I posted here, at the end of the Daley Koscheck fight at UFC 113, Daley sucker-punched Koscheck with a left hook.


In response, during the post-fight presser, Dana White stated that Daley was done in the UFC. In addition, the Régie des Alcools, des Courses et des Jeux (Regulators of Alcohol, Racing and Gaming) -- Quebec Athletic Commission -- will undoubtedly suspend Daley and that suspension will likely be upheld by other athletic commissions under other athletic commissions' regulations (for an example of how this works, see this post).

Some have taken issue and said that an outright ban from the UFC is too extreme. While this is not the focus of my post, I will go on the record and state that I don't necessarily agree. Daley's actions detract from the sport -- no matter how you slice it -- and while I enjoy a good train wreck as much as the next guy, it doesn't help MMA's cause and is just one more arrow in the quiver for those, like the politicians in New York, who oppose lifting the ban here.  I realize that Daley's actions were a direct result of frustration and that everyone makes mistakes, but at this level (and on this stage) the fighters need to respect the sport and keep their emotions in check.  Bottom line, I think the UFC could have gone either way with this one. 

The more interesting question raised in response to Dana White's statement is whether the UFC is taking inconsistent positions by banning Daley while apparently taking no action with respect to Nate Diaz (for his involvement in the Strikeforce Melee that I posted about here) and attempting to bring over Jake Shields who also participated in the Strikeforce brawl. While I agree that in both instances, i.e. Strikeforce and Daley, a punch was thrown after a fight, I think the circumstances of each is sufficiently distinguishable so that the UFC's positions can be reconciled.

First, with respect to Nate Diaz, as I state in my post here, I don't think the UFC should involve itself with a fighter's actions during another promotion:

I am not buying it [that action should be taken by the UFC against Nate Diaz based on his Strikeforce actions] even if the UFC contract so provides, which of course would not surprise me, i.e., the UFC (or Zuffa) probably has the right to fine fighters or terminate the contract for good cause or no cause at all. The Tennessee Athletic Commission will investigate and levy whatever fines and suspensions it deems fit. It doesn't take a lawyer to realize this, but in my opinion the UFC shouldn't touch this with a ten-foot pole. No reason to tangle itself in this mess period. Stay above the fray. That's just my opinion.

Second, unlike the punch by Daley -- which was totally unprovoked and unexpected and occurred after the fight had ended, the Strikeforce situation was provoked (whether Mayhem threw the first punch or not) as Mayhem entered the cage after Shields won the fight and called him out on national, network television. Further, Mayhem was in a defensive mode after the first push (by I believe Melendez) and certainly once the punches started flying he shelled up and was protecting himself.

Koscheck, on the other hand, was simply walking away (although he does appear to have raised his hands just too late) and really had no reason to expect that Daley was going to punch him in the face (as opposed to say, doing the right thing by congratulating Koscheck and tell him that all the back-and-forth bantering was just to hype the fight) after the fight had ended.

Bottom line, I think the UFC's positions can be reconciled because in the Strikeforce situation Mayhem was also in the wrong for his actions and once the fists started flying everyone was to blame whereas with the UFC situation Koscheck did nothing to provoke Daley other than dominate him in the fight. Don't get me wrong, I believe Shields, Mayhem and others should, and will, be suspended by the Tennessee Athletic Commission and will have to wait for their next fights, but I just think that Daley was far more culpable for his classless actions.

Fight Lawyer

Fights Tonight

Another solid Saturday of fights, UFC 113 (Shogun Machida 2 plus Koscheck Daley) PPV; HBO Boxing (Paul Williams Kermit Cintron); Latin Fury 14 (Antonio Margarito Roberto Garcia) PPV.  Fight Lawyer

UPDATE

Crazy and bizarre night of fights.  I will have more to write on some of these issues this week, but wanted to provide a quick mini recap in the meantime.

Cintron Williams was totally strange.  Beginning of the fourth round action started to pick up -- nothing much happening before then -- when all of a sudden both fighters slipped and Cintron fell through the ropes hitting what looked like his shoulder/back and head on the table.  Apparently he wanted to continue, but the doctor wouldn't allow it.  Under some strange CA rule (unlike the unified rules of boxing), because the fight had gone past the third, they went to the scorecards through four (even though the round had just started).  One judge had all rounds going Cintron's way, one judge had all rounds going Williams' way, and the third had it closer (39-37) for the winner, Williams.

On to UFC 113.  Rua is a beast, he avenged his controversial decision loss to Machida.  ESPN was reporting that he had knee issues before the fight -- I don't think so. Knocked out Machida, cold, inside the first round.  Pretty incredible.  Great card overall--Kimbo confirmed that he doesn't belong as he got totally outworked by Matt Mitrione in the second -- referee stoppage due to strikes.  Probably Kimbo's last appearance in the UFC. 

Koscheck Daley was a display of Koscheck going back to his roots--wrestling -- and totally dominating Daley for all three rounds.   After the fight ends (and I mean after -- not like three seconds after the bell), Daley comes up to Koscheck and just punches him in he face.  Daley's move was classless.  Now, on top of whatever sanction or fine he gets slammed with, Dana White has also stated that Daley is done in the UFC.  Koshcheck will coach The Ultimate Fighter opposite GSP and already started taunting the Canadian fans (about hockey and GSP) during his interview with Joe Rogan.

Alan Belcher looked good taking out Patrick Cote by RNC (after what some called a controversial slam that I thought was clean).  After, he called out Anderson Silva which is just ridiculous.  Jeremy Stephens took a split decision win over Sam Stout.  Stephens had the harder punches and had Stout tentative after eating some leather.  At one point in the third, however, Stout caught Stephens with what appeared to be a leg kick that had Stephens stunned.  Ultimately, Stout couldn't capitalize and Stephens prevailed.

Bottom line, UFC 113 was a sick night of action.

Finally, Margarito takes a unanimous decision win over Garcia.  Margarito knocked Garcia down in the first, but Garcia hung in until the end

Fight Lawyer