Wednesday, June 30, 2010

More on the Liddell MMA Authentics Lawsuit

As I posted here last week, Chuck Liddell has sued clothing company MMA Authentics in Los Angeles Superior Court.  While I had not seen the complaint, I explained why his claim for MMA Authentics' alleged failure to secure approvals for items bearing Liddell's mark would be one for breach of contract as opposed to trademark violation.

Specifically, I stated:

In other words, the claim is not that MMA Authentics did not have a right to use the mark, but instead is that it did not properly comply with its obligations under the license agreement in using the mark.

As reported here at Sherdog, it appears I was correct as the article states that Liddell has asserted claims for breach of contract, invasion of privacy, and a claim based upon MMA Authentics' alleged violations of California business laws.

According to the article, the contract claim has two components:  (1) it alleges that MMA Authentics was only authorized to sell headwear and clothing under the contract and it allegedly sold "novelty" items in violation of this agreement; and (2)  it alleges that MMA Authentics did not get pre-approval for the use of the Liddell marks.

The article points out that there was back-and-forth between the parties on these issues for an extended period of time prior to Liddell's recent decision to pull the trigger -- in fact, the article states that Liddell waited a almost a year and a half after termination before commencing suit.

According to the article, Liddell seeks unspecified damages (including punitive damages) and injunctive relief stopping MMA Authentics from allegedly continuing to sell items that he did not approve.

Perhaps this is just Liddell's attempt to get a more favorable deal, time will tell.

I look forward to seeing MMA Authentics' response to the complaint.

Fight Lawyer

Tuesday, June 29, 2010

Efforts to Legalize MMA in New York Hit a Significant Wall

As reported here in the Daily News, efforts to legalize MMA in New York have hit a significant -- likely determinative snag.  Specifically, Assembly democrats stripped approval for a provision lifting the ban on MMA from the budget bill that will be taken up in Albany today. 

According to the article:


'The majority of voices who spoke about this issue in our conference were not supportive of approving it as part of the budget,' said Assemblyman Steven Englebright (D-L.I.), a fight fan.


As I have previously posted here, there were two ways essentially that MMA could be legalized:  (1) through the normal legislative channel, i.e. pass the Senate, pass the Assembly, and then get signed into law by the Governor; and (2) through the state budget. 

Given timing issues and my feelings about the Assembly Speaker's position on the bill (that he was opposed), I did not think it was likely the bill would pass through the normal legislative channels this year.  However, I was slightly more optimistic about the second option (with the caveat that it still needed to be approved by the Assembly to make it into the budget) because the budget timing is pressing and there is more give-and-take when resolving differences in the budget.    

Given the exclusion from the budget (and the fact that democrats in the Assembly are opposed to the legalization of MMA), it looks like the issue will need to be revisited again next year unfortunately.

I will continue to monitor.

Fight Lawyer

Monday, June 28, 2010

Second Unfortunate Death in Connection with a Sanctioned MMA Bout

I just read this article over at Sherdog about a 30-year old fighter, Michael Kirkham, who died from bleeding in the brain after his first professional MMA bout in South Carolina.  Kirkham was 6'9" and fighting as a lightweight.

According to the article, it is believed that Kirkham died from injuries he sustained during the fight -- a fight in which he was knocked out and never regained consciousness. 

This is, of course, extremely sad and my condolences go out to Kirkham's family.

As of this morning, there had only been one death in connection with a sanctioned MMA fight as reported here by Kevin Iole:


Since 1993, when the Ultimate Fighting Championship was founded and what has become known as the MMA era began, there has been one recorded death in a sanctioned fight. Sam Vasquez died of injuries sustained in an Oct. 20, 2007, fight in Houston.


Unfortunately, as in all things political, this tragedy may be used as ammo by those opposed to MMA, including those politicians in New York currently attempting to prevent passage of a bill (and a budget) that would lift the ban on "combative sports."  As I posted here, New York Senator Liz Krueger, in her blog post on her opposition to MMA in New York, has already stated as follows:  "How can we legalize a sport which has shown time and again to have tragic consequence for its participants?"

Despite what the opposition, including Liz Krueger, may say, however, the fact remains that MMA has still had less deaths in regulated bouts than even high school football.

Indeed, as Kevin Iole pointed out in his article today:
according to the National Center for Catastrophic Sports Injury Research, there were three deaths among high school football players in 2009 and there have been 63 since 1993, the year modern MMA began.
Accordingly, two deaths in sanctioned MMA bouts since 1993 -- as opposed to one -- does not do much to change the comparative argument that can be made that MMA is no less dangerous -- in fact it is still less dangerous -- than boxing and other contact sports despite what the opposition might argue.  

Fight Lawyer

Sunday, June 27, 2010

My 2 Cents on Fedor's Loss and what it Means for Fedor and Strikeforce

I really don't have much to add with respect to breaking down the upset loss Fedor suffered to Werdum via triangle choke last night.  I will leave that commentary to others.  I do, however, want to address some commentary out there that I have already read concerning what it means for Fedor and Strikeforce.

After the fight I read some comments, including that Fedor's loss marks the end for Strikeforce, Strikeforce will go the way of EliteXC, Fedor is to Strikeforce what Kimbo was to EliteXC etc, and I think this is all misguided commentary. 

As Fedor, humble in both victory and now defeat, recognized, "[t]he one who doesn't fall, doesn't stand up."  Indeed. 

The true test is yet to come for Fedor with a likely rematch with Werdum.  With one fight left in his Strikeforce contract (as I understand), he will set out on his quest to avenge this loss and people, like me who believe that Fedor is truly an outstanding fighter and gentleman in the sport, will be all the more eager to watch his next fight to see, as he says, if he will "stand up."

With KimboEliteXC built its brand around him and the hype -- he was headlined on cards where established superior fighters were on the undercards and EliteXC even brought the fights to Kimbo's backyard.

It was all hype though. Indeed, those who understand the sport knew that despite his prowess in backyard brawls, Kimbo was not going to legitimately contend as an MMA fighter without significant training -- training that he did not have the time or benefit of before headlining network TV cards. He was thrown to the wolves (and the weakest wolves in the pack for that matter) with sub par MMA skills. Ultimately, he was destined to lose and so he did, and quickly, marking the end of a promotion that put all of its eggs in one basket.

Unlike Kimbo, Fedor is decidedly proficient both on his feet (as he has demonstrated time and time again) and on the ground with his outstanding Sambo (see this article by Josh Gross for more on some of his accomplishments).  Sure, detractors will say that he was caught in a basic triangle in approximately a minute last night, but that just serves to humanize him in my mind and demonstrates that, in fact, any fighter can get caught on any given night.

There will be those that will attempt to make much of the loss last night as evidence that Fedor was hype, but do those people really believe he will lose his next fight? Ask that same question after Kimbo's loss to Seth Petruzelli -- I know what my answer was. This (among other reasons) led to EliteXC's demise.

Strikeforce, unlike EliteXC, has not built its entire brand around an Internet "sensation." Last night, for example, we saw the Cung Le Scott Smith rematch, Cyborg dominate in typical fashion, and Josh Thomson pull an impressive third round submission.  All great displays of talent.

Moreover, just last week we saw Babalu take on Lawler in an entertaining fight. And don't forget, Strikeforce has Dan Henderson, King Mo, and others who have real talent and real marketability. Accordingly, I disagree that Fedor's loss, even if he were to retire, would spell the end for Strikeforce (assuming, of course, that Strikeforce is otherwise being financially responsible). Strikeforce has built its brand in a way that allows for defeat of a headlining fighter (e.g., the Henderson loss to Shields), and that is all that took place last night.

Simply put, I think Fedor will be back (and he will be back to winning) and Strikeforce will move forward despite what the naysayers will argue.


Fight Lawyer

Saturday, June 26, 2010

West Virginia Law Review Article Tracing the Origins of MMA and Advocating for the Application of the Ali Act to MMA

I just finished reading this West Virginia Law Review Article, "FIGHTING FOR RESPECT: MMA’S STRUGGLE FOR ACCEPTANCE AND HOW THE MUHAMMAD ALI ACT WOULD GIVE IT A SPORTING CHANCE," by Geoff Varney and I highly recommend it for those who are interested in the sport (lawyer or not).

Geoff is a law student in West Virginia who has been actively involved with efforts to legalize MMA in West Virginia.

I think the article does an excellent job tracing the history of the sport from the ancient Olympics, i.e. Pankration, to the present day, including a discussion concerning the early days of the UFC and its initial opposition from the likes of Senator John McCain.

I thought the McCain discussion was very interesting and informative for a number of reasons, including that he compared the sport to human cockfighting in his opposition to the sport at a time when cockfighting itself was still legal in Arizona.  I also liked the analysis concerning the potential influence of the beer lobby on McCain's positions given his wife's connections in that industry, "Cindy McCain, is the daughter of James Hensley, one of the nation’s largest Anheuser-Busch distributors" and Anheuser-Busch is also one of the biggest boxing sponsors in the world."  The article also sheds some interesting light on McCain's decision to change course years-later ("[i]n 2008, Bud Light, an Anheuser-Busch brand, became the exclusive beer sponsor of the UFC"). 
 
Varney also discusses current issues concerning legalization in West Virginia and dispels the misinformation generally thrown around to support keeping the ban in place, including but not limited to arguments that MMA is more dangerous than boxing and other sports.

Finally, Varney analyzes the Ali Act in its current form, argues how it could easily be applied to MMA, and then articulates, very well, why the protections of the Act would be beneficial in MMA.  Specifically, he looks to various contract provisions in UFC contracts (that would run afoul of the Act if it applied to MMA) and how payouts in bonuses would also likely run afoul of the Act if it applied.

Check it out.

Fight Lawyer

Friday, June 25, 2010

Update on (1) MMA in New York; and (2) New York Senator Liz Krueger's Baseless and Irresponsible Attack on MMA in New York

I checked in with New York Assemblyman Bing and he reported that there has been no new action taken in the Assembly on the bill to legalize MMA in New York.

As I have previously reported, although the legislative session officially ended on Monday, June 21, 2010, the Assembly is still in session and, according to Assemblyman Bing, will likely still be in session "until the budget is done and likely through next week." 

Keeping my fingers crossed that the bill will get passed this year, but, unfortunately, I don't think it is likely.

For my reasons, please check my earlier posts on this subject.

Following up on my post here about New York State Senator Liz Krueger's blog titled "Opposition to the Legalization of Ultimate Fighting" and how I thought it was simply irresponsible of her to make certain of the statements in the post that were totally inaccurate, I can report both that I have not heard back from her and that the blog post is still up.  Total embarrassment.

Fight Lawyer

Thursday, June 24, 2010

Chuck Liddell Sues MMA Authentics Clothing Company

As reported here at TMZ.com, Chuck Liddell has sued clothing company MMA Authentics for allegedly selling certain items bearing Liddell's trademarks without having first submitted the samples to Liddell for his approval as allegedly required under a license agreement between the two parties.

I have not seen the complaint (I searched the Los Angeles Superior Court website and nothing came up), but assuming the licensing agreement was still in place at the time of the alleged use of Liddell's mark without his approval (in other words assuming the license had not expired), Chuck's cognizable claim would be for breach of contract for failing to get the requisite approval as opposed to a claim for trademark violation. 

In other words, the claim is not that MMA Authentics did not have a right to use the mark, but instead is that it did not properly comply with its obligations under the license agreement in using the mark.

He may also have asserted some other common law claims (and a trademark claim), but this is really going to come down to whether MMA Authentics is in breach of its contract (assuming the allegations are true) with Liddell and what Liddell's damages are.

I will continued to monitor.

Fight Lawyer

Wednesday, June 23, 2010

New York Assembly Still In Session Despite The Official Legislative Session Calendar

I came across this post at another blog indicating that the legislative session in New York had ended and that the only chance for legalization of MMA now lies in the budget, which is still being negotiated up in Albany. 

As I previously posted here, although the Legislative Session officially ended on Monday, "the calendar date is not an absolute cut-off as the Assembly can continue out of session to deliberate and take action on a bill. In addition, because a budget has not yet been passed up in Albany, it is likely that the Senate and the Assembly will hold-over and continue to work with the Governor to reach a consensus on a budget. During this time, it is possible that the Assembly will take up other business in this hold-over period."

I reached out to Assemblymember Bing, who is up in Albany, and he confirmed that the legislative session is still in progress:
We are currently passing non-budget related bills while the negotiations on the budget are continuing. The technical close of session was Monday, but we expect to be here through the week and for most of next week.


Thus, it is still possible that the bill will continue its progression through the committee process and then for a potential full Assembly vote before the session ends. 
 
That said, however, it is getting down to the wire and I think that the budget is probably the more likely avenue for passage of a bill legalizing MMA at this point. 
 
For reference, I posted about the budget process here.
 
I will continue to monitor.
 
Fight Lawyer

Tuesday, June 22, 2010

McSweeney's Proposed Appeal of his Loss to Travis Browne Will Not Prevail

As reported here at Mmajunkie.com, James McSweeney intends to appeal his loss to Travis Browne this past Saturday at The Ultimate Fighter Finale because he believes he was hit with illegal blows to the back of the head after the fight went to the ground

As you will recall, Referee Kim Winslow stopped the fight in the first round after Browne mounted McSweeney and started unloading.

As set forth in the article, McSweeney intends to appeal the decision and seek a no-contest, although, according to Mmajunkie, McSweeney's manager "acknowledges it's unlikely the NSAC will do so."

Keith Kizer, Executive Director of the NSAC, is quoted in the Mmajunkie article as follows, "[h]ow he got a cut on the back of his head, I have no idea, [b]ut I don't remember seeing any illegal elbows, so ... it's a discretionary call by the referee, and he lost the fight by referee stoppage in the first round."

I agree with Keith Kizer that the call was discretionary and I agree with McSweeney's manager that under the NSAC Rules, there is virtually no chance of success for any potential appeal. 

Under Section, 467.770, "Change of decision after contest or exhibition: Factors considered by Commission," except in instances where the Commission changes a result based on drug use etc.:

"the Commission will not change a decision rendered at the end of any contest or exhibition unless:

1. The Commission determines that there was collusion affecting the result of the contest or exhibition;

2. The compilation of the scorecards of the judges discloses an error which shows that the decision was given to the wrong unarmed combatant; or

3. As the result of an error in interpreting a provision of this chapter, the referee has rendered an incorrect decision."

Under this provision, unless there is collusion affecting the result, an error in the tabulation of the judges' scorecards which shows that the wrong fighter won, or an error in the result because the referee interpreted a provision of Regulation 467 incorrectly leading to the wrong decision, the Commission will not change a decision.

Here, the only part of the decision that McSweeney could take issue with is whether the referee correctly exercised her discretion in failing to call a foul. However, because the Regulations do not provide that a decision will be changed as a result of an error in exercising discretion (under the appropriate regulations), there is no basis in my opinion for the Commission to overturn the referee's decision.  In fact, the article states that Winslow instructed the fighters before the fight about illegal blows and the fact that the area behind the head was foul territory. 

Accordingly, Winslow knew the appropriate rule and simply made the call at the moment as she saw it.

In my opinion, the decision stands.   

Fight Lawyer

Monday, June 21, 2010

More on MMA In New York: Press Conference Up In Albany Today With The UFC

Not too much to report today on the progress of the bill to legalize MMA in New York, but there was a press conference today up in Albany with New York State Senators and Assemblymembers who are in support of the bill to legalize MMA in New York.

Lawrence Epstein, Executive Vice-President and General Counsel of Zuffa LLC d/b/a The Ultimate Fighting Championship, participated as well. 

Still no word on whether this bill will make it through the remaining committee votes in the Assembly, i.e. Ways & Means and then Rules, and get to a full floor vote, but give those in support credit for continuing to fight as we near the end of the legislative session. 

I will continue to monitor.

Fight Lawyer

Friday, June 18, 2010

Is My New York State Senate Representative Just Making Things Up?

I just read this blog post by New York State Senator Liz Krueger -- who happens to be my representative -- about her "Opposition to the Legalization of Ultimate Fighting" and I just don't get it. 

I understand that there are two sides of every debate and certainly respect that there are -- and will be  -- those who are opposed to legalizing mixed martial arts in New York and in general.  That said, I think it is irresponsible to make certain of the statements in this post that are simply not accurate. 

At the outset, the fact that a senator, who should understand the issues after hearing the debate on the floor, is calling the sport "Ultimate Fighting" as opposed to mixed martial arts is troubling.

Moreover, Senator Krueger states:

Unlike boxing, no protective gloves or other gear is required.

Really Senator Krueger, name one state where MMA has been sanctioned and is regulated -- as it would be by the New York State Athletic Commission -- where gloves AND other protective equipment, including a cup and a mouthpiece are not required?   

Second, Senator Krueger states as follows:

There is no way of ignoring the fact that this is a sport rooted in violence. By glamorizing and legalizing this activity in New York we are exposing our children to a heightened level of brutality which can inadvertently encourage dangerous behavior in children.
As I posted yesterday after my conversation with Assemblymember Bing, "despite what many in the opposition say, merely having a ban in place does not prevent people from watching MMA in New York. On the contrary, New Yorkers still watch MMA on TV and live elsewhere and the ban just deprives the State of much-needed revenue while others (e.g., NJ transit when events are in NJ and/or cable service providers) reap the benefits." 

That is, merely because live fights do not occur in New York, does not mean that children can't be exposed to the sport -- that's right, the sport!

Thankfully, Senators, like Senator Krueger, don't have the ability to preclude broadcasts of MMA in New York  (and for that matter prevent New Yorkers from traveling out of state to watch MMA) because they might just take advantage of that ability.

Finally, Senator Krueger states:

Medical experts agree that participation in Ultimate Fighting can lead to permanent brain damage and even premature death. How can we legalize a sport which has shown time and again to have tragic consequence for its participants? Because promoters and even the State can make money off of it? I’m sorry, but no price will make up for the damage this will do to the New Yorkers who partake in this sport.
Driving a car CAN lead to permanent brain damage and even premature death, and so can boxing.  So this is simply not compelling.  Show me where these medical experts have opined that MMA is any more risky than boxing or football.  In fact, show me any medical report that you are relying on for your blog post.

I am all about intelligent debate on controversial issues, but parroting what MMA's ill-informed opposition have to say is counterproductive.

I reached out to Senator Krueger's office and hopefully I will hear from her so we can intelligently discuss these issues.

Fight Lawyer

Thursday, June 17, 2010

More Good News Re Lifting The Ban On MMA In New York, But What Does It Mean?

As you may know, yesterday, the New York State Senate passed Senate Bill No. S2165 which purports to lift the ban on combative sports in New York paving the way for a potential mixed martial arts card right here in New York.

As I posted two-days ago here, the companion bill introduced in the New York Assembly (Bill No. A02009C) has now been referred to the Ways & Means Committee after it was reported, i.e. passed, out of the Committee on Tourism, Parks, Arts and Sports Development and the Codes Committee.  The same bill stalled out in the Ways & Means Committee in the Assembly around this time one-year ago. 

Given that the Senate bill has now passed and been referred to the Assembly, the question is, what happens next in the Assembly and how much time is there for the Assembly to act before the current session ends?

At the outset, as I posted here, how a bill becomes a law in New York largely tracks the federal process.  For present purposes, once a bill passes from one house to the other (here, the Senate to the Assembly), the bill is referred to the appropriate standing committee(s) for deliberation and if it survives the relevant committees, it will go to the full Assembly for a vote. 

Here, because the Assembly bill and the Senate bill are the same, the Senate bill already, in effect, has Assembly sponsors and so it has a head-start in the Assembly legislative process because it has already moved through the initial standing committee process. 

Accordingly, at this point, the Assembly bill will simply continue its progression in the Ways & Means Committee.


If the bill is reported out of the Ways & Means Committee, it will then be referred to the Rules Committee, which is the Committee headed by the Assembly Speaker for final deliberation before either being rejected or reported and referred to the full Assembly for a vote. 

As I have previously posted, as a general matter, the Assembly Speaker has a tremendous amount of power and control over the progression of bills in the Assembly.   

To date, I have seen no indication one way or the other about where the Speaker stands on the issue, but I do think that the fact that a provision lifting the ban was not contained in the Assembly proposed budget (when a provision lifting the ban was contained in the Senate proposed budget and the Governor's Executive Budget) was not a great sign.   

The reason I say this is because it is possible that the provision was excluded from the budget in response to Assemblymember Reilly's (who is the most outspoken critic of MMA) letter to the Speaker asking him to keep the provision out of the budget.  This is only me speculating of course.   

In terms of timing, the Assembly session officially ends next Monday, June 21st, which does not give the Assembly bill much time at all to get through the remaining committees and get to the Assembly floor for a full vote.   

That said, the calendar date is not an absolute cut-off as the Assembly can continue out of session to deliberate and take action on a bill.  In addition, because a budget has not yet been passed up in Albany, it is likely that the Senate and the Assembly will hold-over and continue to work with the Governor to reach a consensus on a budget.  During this time, it is possible that the Assembly will take up other business in this hold-over period. 

Thus, there is still some hope despite the tight schedule.  How much additional time, if any, is anyone's guess.

I reached out to New York Assemblyman Jonathan Bing, who is one of the co-sponsors of the Assembly bill and who has been one of the Assemblymembers leading the charge in terms of bringing combative sports to New York, to discuss some of these issues.

First, and given the timing, Assemblymember Bing advised New York constituents that the time has come, i.e., it is "now or never," to reach out to your representatives and tell him or her to push for the bill's passage.  Specifically, he said that he believed the next four days are critical for these calls as the budget and the entire session could be wrapped up a week from tomorrow.

While Assemblymember Bing is optimistic that the bill has the requisite support to pass if it gets to a full Assembly vote, he is less optimistic that it will reach the full Assembly floor in time.  Whether the bill progresses is largely a function of the Assembly Majority and the Speaker.  That is why, he stressed, constituent involvement is so crucial. 

We also spoke about some of the practical aspects of bringing MMA to New York and agreed that, despite what many in the opposition say, merely having a ban in place does not prevent people from watching MMA in New York.  On the contrary, New Yorkers still watch MMA on TV and live elsewhere and the ban just deprives the State of much-needed revenue while others (e.g., NJ transit when events are in NJ and/or cable service providers) reap the benefits. 

Assemblyman Bing believes that bringing MMA to New York would not only bring tax revenue, but it would support local businesses, increase tourism, and create jobs. 

Bottom line, the bill's passage in the Senate is a very good sign and a step in the right direction, but there are a number of intervening steps (and a ticking clock) standing in the way of MMA in New York.  If you haven't already, reach out to your representative and tell them to get behind the bill. 

I will continue to monitor. 

Fight Lawyer

Tuesday, June 15, 2010

Bill to Legalize MMA Passes Another Hurdle in New York Assembly

As I had previously posted here, the bill to legalize MMA in New York has cleared the Committee on Tourism, Parks, Arts and Sports Development again. 

I am happy to report that the bill has now again (as it did in 2009) cleared the Codes Committee and is now referred to the Ways and Means Committee.

As you may recall, last year the bill passed through both the Committee on Tourism, Parks, Arts and Sports Development and the Codes Committee, and ultimately stalled out in the Ways & Means Committee (it was referred to that Committee at around the same time, or June 17, 2009). Because it stalled, it needed to be reintroduced again this year in the Tourism Committee -- essentially it started over.

It remains to be seen whether the bill will stall again in the Ways and Means Committee, but for now, it is a good sign that the bill continues to move through the Assembly committees. 

As I posted here, there is another way that a bill lifting the ban can be passed and it is through the Governor's 2010-2011 Executive Budget. Governor Paterson's budget proposes lifting the MMA ban in New York and the Assembly and the Senate are in Albany continuing to negotiate over the proposed Budget.

Hopefully, after negotiation, the Assembly and the Senate will pass a Budget that includes the bill that lifts the ban on combative sports -- in effect, getting the bill through without the normal committee process discussed above. 

However, as I posted here, 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, which is not a good sign given the Assembly Speaker's power.

I will continue to monitor.

Fight Lawyer

Monday, June 14, 2010

Are Calls For Olympic-Style Blood Testing Just "Political"

MMAJunkie.com reports here about a meeting between a panel of experts and the Nevada State Athletic Commission concerning testing protocols and, in particular, the possible implementation of blood tests on a going-forward basis. 

I have previously posted on this topic (with respect to the Mayweather Mosley fight and in general) here.

MMAJunkie reports that Travis Tygart, CEO of the USADA, argued heavily in favor of the use of blood testing, the current Olympic standard, and quoted him as follows:

'If you want to have an effective program, you at least have to have the right to do both (urine and blood testing),' Tygart said. 'The right gives you that deterrent. You can decide later after you have that right how much you're actually going to do and when you're actually going to do it. But I think if you don't have the right to do it, it sends a loud message to dirty athletes: Go do whatever drug will give you a benefit that can only be detected in blood.'


'Everybody with a heartbeat now knows [human growth hormone] is only detected in blood. It will be a free-for-all, if it's not already, for human growth hormone use if you don't have the right to at least collect blood.'
The question (and debate that seems to have surfaced at the meeting based on articles I have read) is whether blood testing is really feasible and is adequate.

In this article by Patrick English over at Secondsout.com, the other side of the debate is articulated in fairly compelling fashion.

The article, which relies on experts in the field, including Dr. Don H. Caitlin, head of the UCLA Olympic Analytical Lab,  provides that there is only a 24 hour window in which HGH use can be detected.  Stated differently, a test will only come up positive for HGH use if the athlete used the hormone within 24 hours of the test. 

This, it is argued, makes the tests extremely ineffective as a deterrent. 

Dr. Caitlin is quoted as saying that "the method of testing used by WADA 'alone doesn’t work. It’s political. The whole thing is political.'”

The article also discusses the impractical side of testing, including the random and spur-of-the-moment testing and how it will be difficult to implement with professionals as well as the often inconsistent test results that can arise from lab contamination and other outside influences.  The article also describes in detail how the test results will likely be challenged in arbitration and the courts and that the results will not hold up given the lack of scientific support.

In short, according to the article, blood testing is not yet warranted in MMA and boxing.

So, who is right? 

It remains to be seen, but for now, the NSAC is "investigating its options" according to Keith Kizer, Executive Director of the NSAC.

Fight Lawyer

Friday, June 11, 2010

Zuffa Files Lawsuit For Alleged Violations of the Federal Communications Act and Copyright Act

On June 10, 2010, Zuffa LLC filed an action in the United States District Court for the Western District of Texas (Austin Division) against Jason N. Jones and Aces Austin LLC d/b/a Aces a/k/a Aces Lounge for alleged violations of the Federal Communications Act (47 U.S.C. 553 and 605) and the Copyright Act (17 U.S.C. 501).

Specifically, Zuffa alleges that defendants allegedly intercepted the broadcast of UFC 109 on February 6, 2010 and published it for a commercial gain.  Zuffa seeks damages for defendants alleged "willful" acts. 

The complaint does not have much detail concerning the defendants, but it appears that they are a commercial establishment that, according to Zuffa, somehow obtained access to UFC 109 without paying a commercial distribution fee. 

Zuffa provides a number of ways this can be done, including, inter alia, using an illegal satellite receiver, splicing a coaxial line running to a residential address, registering a commercial establishment as a residence, and/or taking a lawfully obtained residential box into a commercial establishment.  Zuffa states that it does not know how these defendants allegedly received and distributed UFC 109 without paying the commercial distribution fee and that it needs discovery to figure it out.

I have had a number of conversations in the past with people who just assume a bar can pay the $44.99 (or whatever the PPV residence rate) and broadcast the PPV--this is obviously not the case as there are entirely different commercial distribution fees. 

I will continue to monitor.

Fight Lawyer

Thursday, June 10, 2010

Mikey Burnett Lawsuit From 2008 Relating to His Alleged Injury On Season Four Of The Ultimate Fighter Still Pending

As you may recall, Mikey Burnett was a Season Four participant on the Ultimate Fighter (the "Comeback") who allegedly suffered a spinal injury while the show was in production and later sued TufGuy Productions, Inc., which produces the Ultimate Fighter, Ultimate Fighting Productions, LLC, Zuffa, and AIG, which allegedly insured him under an "accident" policy.  Burnett has asserted claims for negligence, breach of contract (against AIG), and breach of the implied covenant of good faith and fair dealing (against AIG).

Here is a link to Cagepotato.com describing the suit that was initiated in July 2008 in state court and later removed to federal court.  Since removal, additional defendants were added, including Zuffa., which made for an interesting jurisdictional question for the federal court (I won't get into that here).

After removal and two amended complaints filed by plaintiff, defendants made a motion to dismiss the amended complaint for failure to prosecute that was denied by the Court on February 10, 2010. 

On June 7, 2010, Tufguy, Ultimate Fighter Productions, and Zuffa moved for summary judgment seeking dismissal of the Second Amended Complaint based on a number of waivers and releases contained in multiple contracts signed by Burnett.  Defendants' also argue that plaintiff assumed the risk of injury from competing in MMA as reflected in the agreements.  

I looked quickly at the second amended complaint (it is short on any specifics) and while I did not see a direct reference to "gross negligence," defendants claim that at least one agreement, by its terms, precludes liability even if defendants were grossly negligent. 

Now, I do not practice in Nevada, but generally you can not have a limitation that limits recovery for gross negligence claims, as opposed to ordinary negligence, which can be so limited. 

In any event, I am not really sure (and Burnett's pleading doesn't spell it out) how defendants were negligent at all.

Burnett will now likely file his opposition to the motion and I will continue to monitor. 

Fight Lawyer

Tuesday, June 8, 2010

More Charges Of Performance Enhancing Drug Use--Piece Of Advice, Keep Your Thoughts To Yourself

As reported at MMAJunkie, Koscheck has suggested Olympic style drug testing for his upcoming match with GSP and GSP is, it appears from the article, amenable to any such testing. 

I have previously posted a few times about the USADA testing protocol (largely in response to the Mayweather Mosley fight and Mayweather and Pacquiao negotiations) here.

Once again, in the context of drug testing, fighters are exchanging charges and counter-charges concerning use of banned substances.  As I have previously posted, these charges can lead to litigation of defamation claims. 

Specifically, there is currently litigation pending in the United States District Court for Nevada involving Pacquiao's claims of defamation against Mayweather, de la Hoya, Richard Schaefer et al. and their alleged statements in connection with Pacquiao's failure to agree to blood testing leading up to the fights during the first round of negotiations with Mayweather.  ( I have posted about that litigation here and here).

Given the potentially damaging nature of any charge of another fighter's use of PEDs, fighters should be particularly careful about what they say in this regard. Here are some general (and practical thoughts) on the matter.


First, while truth is a defense to a defamation claim, getting to the "truth" often takes litigation (and discovery) and so merely thinking something is true (without more) does not shield a fighter from liability for making these claims.  (That said, a fighter who has used PEDs in the past would likely never bring such a claim in the first instance and risk confirmation of any hypothetical past use).

Similarly, although repeating another's defamatory statement without asserting any direct knowledge concerning the truth of the matter asserted is an interesting tactic, for the most part, courts have found such efforts to repeat defamatory statements (while denying actual knowledge of their truth) to be actionable.
 
Second, while big-name fighters are limited public figures (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), a fighter charged with drug use can certainly allege actual malice and bring an action for defamation.  Again, it may be difficult to prevail as a public figure, but that doesn't prevent the aggrieved fighter from commencing litigation and causing the other fighter "pain" in the form of legal fees, lost time for depositions etc.


Finally, although statements of fact can be defamatory whereas statements of opinion generally are not, often times the line between fact and opinion is blurry.  And again, nothing prevents the aggrieved fighter from commencing litigation and letting the court sort through the statements to parse those that are fact from those that are opinion.

Bottom line, to be safe, fighters should avoid making accusations of drug use and let the tests themselves do the talking. 

Fight Lawyer

Monday, June 7, 2010

New York Is Not Alone Re Throwing in the Towel -- But Should the Corner Have the Ability to Stop a Fight?

Out of curiosity, and in response to the towel incident during the Cotto Foreman fight I posted about here, I checked the Nevada State Athletic Commission Rules and it turns out that in Nevada, throwing in the towel is not an acceptable means of stopping a fight and is a foul.

Specifically, NAC Chapter 467.7962(31) provides as follows:
Acts constituting fouls. . .  Throwing in the towel during competition 
In addition, the following provisions govern referee stoppage when a fighter sustains an injury (or is at risk of sustaining a serious injury):

NAC 467.713 Determination to stop contest or exhibition: Injury to unarmed combatant. (NRS 467.030) The referee shall determine whether a contest or exhibition should be stopped because of an injury to an unarmed combatant.
NAC 467.718 Determination to stop contest or exhibition: One-sided contest or exhibition; risk of serious injury. (NRS 467.030)
1. The referee may stop a contest or exhibition at any stage if the referee determines that the contest or exhibition is too one-sided or if either unarmed combatant is in such a condition that to continue might subject the unarmed combatant to serious injury.
Accordingly, in Nevada, like New York, the towel thrown in by Grier (it appears) should have been disregarded as the referee is charged with determining whether the fighter can continue.

The obvious question underlying all of this is whether the corner SHOULD have the ability to make the call to stop the fights and protect its fighter. 

As is usually the case (except this season on the Ultimate Fighter it seems), most fighters, if asked in the heat of battle, will say that they want to continue despite any injury sustained and, in many cases, the corner is (objectively we hope) simply looking out for the safety of the fighter. 

As a general matter, should the corner (with a towel or without) have the ability to stop the fight to protect its fighter?  Or is the referee (with guidance from the ring side doctor) a sufficient protective measure?

For my part, I think the referee, with the fighter and the doctor's input, is a sufficient protective measure.  Now it is "possible" that a referee won't be paying attention, but the corner can obviously voice its concern to the referee in between rounds and then the ref can call in the doctor. 

So, although the corner can't unilaterally stop the fight, it does have the ability to raise the issue.
Fight Lawyer

Sunday, June 6, 2010

Mercante Jr. Correctly Ignored the Towel Irrespective Of Who Threw It In The Ring

Last night's Foreman Cotto fight came to a strange ending.  In summary, in round 7 Foreman's knee buckled and he hit the canvas.  He wanted to continue and made it through the 7th round on a visibly unstable knee.

In round 8, Foreman continued to fight and then he almost slipped again.  Next a white towel was thrown into the ring and everyone thought the fight was over--except, of course, for the referee, Arthur Mercante, Jr.  Mercante quickly cleared he ring, asked Foreman if he wanted to continue, and let the fight go on. 

There seemed to be some issue about whether Foreman's trainer, Grier, threw in the towel (it seems to be confirmed now that he did), but ultimately, as set forth below, it didn't matter.  The 8th round came to an end and, in the 9th, Foreman ate a vicious liver shot and Mercante Jr. stepped in to stop the fight. 

When asked about his decision to allow the fight to continue, Mercante stated as follows:

“The towel came in in the heat of the battle when there was a good exchange going.”  “When the towel came in, I felt it was not necessary to stop the fight. Ten seconds prior, they were yelling, ‘Stop the fight, stop the fight,’ but there was no need to do that. It was a great fight and that’s what the fans came to see.”

While there were questions about whether Foreman's trainer threw in the towel (or an outside source) and whether the source of the towel affected Mercante's decision, under the Rules of the New York State Athletic Commission it doesn't really matter who threw in the towel.

Chapter 210.17 of Title 19 provides as follows:

Throwing towel into ring.  No one shall throw any towel into the ring as a signal of defeat or for any other reason.
So, it appears Mercante Jr. correctly disregarded the towel.  That decision was definitively correct. 

There is obviously some debate about whether Mercante should have exercised his discretion to stop the fight sooner (respecting Foreman's corner's belief that the fight should be stopped as opposed to Foreman's will to continue).

For my part, I think Mercante Jr. made the right call in the 8th and then in the 9h when he stopped it.

Fight Lawyer

Friday, June 4, 2010

Shields Free to See What He is Worth in the Marketplace

As reported here by MMAJunkie, Jake Shields' exclusivity period in his contract with Strikeforce (the contract was with EliteXC originally) has expired. 

As I previously posted here, it was not surprising that Shields and Strikeforce were not negotiating during the exclusivity period because Shields had every incentive to wait for that period to expire so that he could open up negotiations and see what he was really worth to the UFC and Strikeforce.  Specifically, I stated then that "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."

Next I discussed the apparent right of first refusal in the contract (this provision is mentioned in the MMAJunkie article but not confirmed as being in the contract) with Strikeforce, which gives Strikeforce the option to match any offer:

The second [provision referenced in the original article] 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.
[O]nce he [Shields] 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.  In other words, Shields can -- and will I would imagine -- use Strikeforce and the UFC to bid up his future pay.
So readers, how much is Shields going to command in the marketplace?

Fight Lawyer

Thursday, June 3, 2010

Bill To Lift Ban On MMA In New York Clears Tourism Committee -- Step In Right Direction, But Still Has A Long Way to Go

As reported here at Cagepotato.com, the bill to legalize MMA in New York has cleared the Committee on Tourism, Parks, Arts and Sports Development again.  As I previously posted in a series here, the bill still has a long way to go before it becomes law in New York. 

Last year the bill passed through both the Committee on Tourism, Parks, Arts and Sports Development and the Codes Committee, and ultimately stalled out in the Ways & Means Committee.  Because it stalled, it needed to be reintroduced again this year in the Tourism Committee -- essentially it started over.

The Cagepotato article states that if the "[Codes] committee okays the bill, the fate of MMA in New York will rest with the votes of the State Assembly."  However, as was the case last year, the bill will likely need to move through Codes and then through Ways and Means.  At that point, if it can pass Ways and Means (unlike last year where it stalled), it may still go to another "committee" if the Speaker dictates or it may go to the full Assembly.  If it passes the Assembly, it goes to the Senate and, if it passes there unaltered, it goes to Governor Paterson for his signature.

While any positive movement is a good sign, ultimately, the bill still has a long way to go and, as I have written before, whether the bill gets passed will likely have a lot to do with where the Assembly Speaker stands on the bill.

Fight Lawyer

More on the Pacquiao/Mayweather/De La Hoya/ Schaefer Defamation Action

Following up on my post here, on May 25, 2010 Pacquiao filed his opposition to Schaefer and De La Hoya's motion to dismiss Pacquiao's complaint.  I did a quick read through the motion and I think Pacquiao will survive the motion to dismiss. 

One thing that kind of surprised me is that Pacquiao's counsel led off the argument section (after setting out the motion to dismiss standard) with an argument that the motion to dismiss should be denied because Schaefer and De La Hoya did not address the conspiracy allegations -- those allegations that they conspired with the Mayweathers to defame Pacquiao

Essentially, Pacquiao is arguing that Schaefer and De La Hoya are liable for the other defendants' allegedly defamatory statements and their failure to address these other statements warrants the denial of the motion.  However, in a footnote, Pacquiao's lawyers acknowledge that they didn't assert a conspiracy "claim," i.e. they only asserted allegations concerning a "conspiracy."  Specifically, in the complaint there is an allegation that the defendants conspired to defame Pacquiao (there is no similar allegation in the single Count for defamation however).  In this footnote, they ask for leave to re-plead (file another, amended complaint) if the court determines that the allegations themselves do not give rise to a conspiracy claim. 

Given all of the strong arguments they had on the statements alleged in the complaint with respect to these defendants (Schaefer and De La Hoya), I think starting with an argument that relies on Shaefer and De La Hoya's failure to address a claim that wasn't made is surprising. 

Otherwise, the brief looked good and, although I think that many of the statements at issue in the complaint may prove non-actionable opinion, Pacquiao should survive the motion to dismiss.  Here is one interesting argument concerning De La Hoya's alleged actual malice:

Moreover, as explained above, a reasonable juror could conclude that de la Hoya tried to manufacture a false basis for accusing Pacquiao of taking performance-enhancing drugs. After fighting Pacquiao, de la Hoya stated publicly that the Filipino 'he didn’t hit hard' and that 'I could’ve stood there and put my face in front of him and he couldn’t have hurt me.' Exs. 5-6.  However, in December 2009, de la Hoya suddenly reversed course and began saying that Pacquiao’s punches 'felt the same' as the 'strong' punches from Mosley and Vargas, two boxers who took performance-enhancing drugs when they fought de la Hoya.10

I will continue to monitor.

Fight Lawyer

Wednesday, June 2, 2010

Nate Diaz Likely to Pay Tennessee Athletic Commission Fine To Avoid Potential UFC 118 Roadblock

As reported here by MMAJunkie, assuming Nate Diaz is the fifth person fined by the Tennessee Athletic Commission (it is not clear if he is because the TAC has not released the names yet) as a result of the Strikeforce brawl I posted about here and here, Nate Diaz is likely to pay the Tennessee Athletic Commission fine of $7,500 so that he can avoid any obstacles with his scheduled fight at UFC 118:

As MMAjunkie.com first reported in May, Diaz (12-5 MMA, 7-3 UFC) is expected to fight Davis (17-6 MMA, 8-3 UFC) at UFC 118 on Aug. 28 in Boston, though fallout from the melee cast doubt on his ability to be licensed for the fight. This past weekend UFC president Dana White said that he would honor any suspension issued by the TAC as a result of the incident.

In the article Cesar Gracie states that he doesn't believe the TAC has the right to fine Diaz (or suspend him) because Diaz was not licensed by the TAC on the night of the brawl.  According to the article, however, Gracie stated that "the TAC believes he acted as 'a second' (cornerman) to Strikeforce middleweight champion Jake Shields, who just prior to the brawl defeated Dan Henderson in the event's headliner."


There is some support for the TAC position that it can fine those "required to have a license" -- in addition to those who have a license --in the relevant TAC Rules as I posted about here, but ultimately the relevant statutes and rules are ambiguous.  Ultimately, however, it is probably not worth the fight (and the distraction) and I think Nate Diaz is probably wise to pay the fine and enter into the consent order so that he can move on and focus on more important things, like his upcoming fight.  

Here is my previous post if you want the analysis:

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

Tuesday, June 1, 2010

More on Tuff-N-Off Litigation and Bloggers Beware

Following up on my post yesterday, I did a quick copyright registration search and it appears that Righthaven, LLC has received 49 registrations in 2010 (notably, one registration is for a work published in 2009 and the rest appear to be from 2010) that all appear to be for news articles.

I looked at a sampling of these registrations and they, like the registration for the article at issue in the Tuff-N-Uff litigation, all appear to be registrations for articles authored by Stephens Media, LLC -- Stephens Media LLC owns the Las Vegas Review-Journal.

I then checked Pacer (the US Court filings database) and found that Righthaven, LLC has filed 26 cases since March 13, 2010 in the United States District Court for the District of Nevada. I looked at a sampling of these cases and they all (in my sampling at least) were actions for copyright infringement.

Thus, it appears to me that Stephens Media is assigning its copyright rights to Righthaven, LLC, Righthaven then procures a registration, and Righthaven then initiates lawsuits against those websites (or others) that have reprinted the articles seeking statutory damages.  From Pacer, it looks like three of these cases have settled. Unclear how much, if anything, Righthaven is paying Stephens for the assignment of ownership (I would guess Stephens is taking a cut of any settlement or damage award).

Assuming my understanding is correct, and I think it is based on the number of registrations received in 2010 and the number of cases filed in 2010, this appears to be a quick and dirty practice, i.e. aggressively filing lawsuits seeking statutory damages of $150,000 per publication.   Why not just pick up the phone and ask Tuff-N-Uff, or whoever else, to take down the content or pay for a license?  Are you really being harmed if someone reposts your content and cites you as the source (and wouldn't a retroactive license cover any such damage)?  If anything, it seems to me that reposters are just increasing your circulation. 

I generally link to a source anyway (instead of pasting it on my blog) , but this is just one more reason for me to abide by this practice. 

Fight Lawyer