Friday, July 30, 2010

My Take on Zuffa's Lawsuit Against Pavia and Bellator

Last night Kevin Iole first reported here that Zuffa, LLC filed a lawsuit against Bellator Sport Worldwide, Pavia Holdings, LLC d/b/a as MMA Agents, Does 1-100, and Roe Corporations 1-100. 

I have now had a chance to review the complaint. 

In total, Zuffa asserts seven (7) causes of action (as an aside, they only list six (6) causes of action because they have a typo and use the heading "Fifth Cause of Action" twice), including for:  (1) violation of the Uniform Trade Secrets Act (against all defendants); (2) civil conspiracy (against all defendants); (3) breach of contract (against Roe and Doe defendants); (4) breach of the implied covenant of good faith and fair dealing (against Roe and Doe defendants); (5) aiding and abetting inducement (against Pavia Holdings), i.e. that Pavia induced Doe and Roe defendants to breach their agreements with Zuffa; (6) conversion (all defendants); and (7) injunctive relief (all defendants). 

Zuffa alleges that when it acquired the UFC brand from Semiphore Entertainment Group ("SEG"), i.e. the former owners of the UFC, among the assets it acquired were the intellectual property and confidential and proprietary information that had been developed by SEG.

Since the acquisition, Zuffa alleges that it has continued to develop:
confidential and proprietary business and technical information relevant to its operations including, but not limited to, independent contractor and fighter/athlete information, venue contact and pricing lists, vendor lists, strategic plans, pending projects and proposals, production processes and practices, designs, data and results of research, demographic information, contract and agreement forms, marketing and selling strategies and techniques, long range planning, marketing studies, financial and pricing  information, compensation data, trade secrets and the like []. 
Zuffa claims that this property constitutes "extremely valuable business assets developed [] over the years" and that it has expended significant time, effort and money protecting these assets.

Zuffa alleges that Pavia (and MMA Agents), as a "self-professed agent for 40 current and former Zuffa fighters, []would have access to various agreements entered into between its clients and Zuffa" and that Pavia allegedly turned these agreements over to Bjorn Rebney, Bellator's founder and CEO.

Zuffa's complaint provides the text of an alleged email from Rebney to Pavia (cc to Tim Danaher), which according to the complaint, provides in part as follows:
Tim and I know that you've been great about sending us 'All' of the seminal docs . . . Please list each in terms of what it is for and how the UFC uses them/implements . . . [t]hen I'm going to have our team Monday re-type them and we will sufficiently alter them such that they will appear to be ours and not theirs."
Zuffa admits that it cannot be sure what "all" of the seminal docs are but speculates that the agreements include those containing its allegedly confidential and proprietary information.

The crux of the complaint is Zuffa's allegation (upon information and belief) that MMA Agents, through Pavia, and Bellator have conspired to misappropriate Zuffa's confidential information and trade secrets in an effort to unfairly compete against Zuffa in the marketplace."

For your reference, here is a link to the Trade Secrets (Uniform Act).

According to Kevin Iole, Bellator's attorney, Patrick English, had the following to say about the allegations:

“I’ve looked at the paperwork, and I understand what’s going on here, and it is literally much ado about very little,”
“There were documents sent by Mr. Pavia to Bellator, but they are not of a competitive nature and they would give no advantage or disadvantage to the viewer. The bulk of them in no way, shape or form would be considered confidential and are not what I consider to be documents that Zuffa should be concerned about.
“I did attempt to reach out to Zuffa [Thursday] and, unfortunately, have not gotten a return call. It happens that Bellator has not used any of the documents in any case.”
Maybe Bellator's attorney is right and whatever was turned over contains no confidential information, but he does at least tacitly acknowledge that the alleged Rebney email could lead to an opposite conclusion when he states that it “was phrased in an unfortunate way."

A couple interesting things to note. 

At the outset, from the face of the complaint, it is not clear what information was allegedly disclosed that is subject to trade secret protection.  That said, Zuffa alleges that it doesn't know yet what "all" of the seminal documents are and so it would be pretty difficult to allege the confidential terms with any sort of specificity.  Zuffa certainly seems to have enough to assert the claim.

In this regard, what you pay someone, who you deal with, or the duration of an exclusive contract could be a trade secret as could idiosyncratic or confidential business terms.   That said, if stuff like that was redacted (that is, if the allegedly confidential information was whited out), then this would severely undercut any potential trade secret claim. In fact (and this is more complicated), if the confidential information was redacted, copyright preemption would likely come into play to bar a claim based upon retyping and rephrasing the non-confidential sections of the documents.

Next, it seems plausible from the allegations that the Doe defendants are fighters that allegedly had these confidential agreements with Zuffa and that the Roe defendants are plausibly venues and/or sponsors that allegedly had agreements with Zuffa that contained allegedly confidential or proprietary information.

Finally, and as an interesting competition point, assuming the case goes forward, Zuffa should get access to the Bellator agreements in discovery -- although this will likely be subject to a protective order that provides that the agreements are for "attorney's eyes only."

Fight Lawyer

Thursday, July 29, 2010

Fedor/M-1 v. Affliction Trial Date Set for June 2011 and Still No New Counterclaim from Affliction

On July 28, 2010, Judge Margaret Morrow signed an order amending the schedule in the litigation Fedor and M-1 Nederland commenced against Affliction pending in the United States District Court for the Central District of California. 

The order pushes out some of the previously set deadlines, including the deadline for initial expert disclosures to January 28, 2011.  As I reported here, on July 23, 2010, Affliction already disclosed that at least one of its purported "experts" was boxing promoter Lou DiBella -- Affliction also filed DiBella's "expert" report" which I discussed in my earlier post.

The order sets the trial date at June 7, 2011 although that date will likely move as it approaches given that the parties may make dispositive motions after the discovery cut-off.  As I posted here, Fedor's deposition will take place in early August while he is in the United States for the 2010 M-1 Selection-Americas event.  Bottom line, for now at least, if the case goes to trial, it will, at the earliest, be in approximately 10 months. 

It is also worth noting that Affliction has still not filed a new counterclaim.

Fight Lawyer

Wednesday, July 28, 2010

MMA Manager Jason Genet Consents To Entry of Final Judgment in SEC Action

Following up on the Securities & Exchange complaint filed against Jason M. Genet (here is the post from Josh Gross breaking the story last year), on July 26, 2010, the SEC filed a Motion to Approve a Consent Judgment against Genet (the consent was signed by Genet in June) in the United States District Court for the Eastern District of New York.

When the complaint was filed, Josh Gross described the lawsuit, in part, as follows:
Jason Genet, a prominent Phoenix-based manager of mixed martial artists including Shane Carwin, Benson Henderson and Efrain Escudero, is alleged to have acted in concert with other parties to perpetrate a "pump and dump" manipulation of the common stock of China Energy Savings Technology, Inc., according to a complaint filed by the Securities and Exchange Commission.
According to the filed Consent (the full filing is available via Pacer), "[w]ithout admitting or denying the allegations of the complaint (except as to personal and subject matter jurisdiction, which defendant admits)," Genet "has consented to the entry of the final judgment which, among other things:"

(a) permanently restrains and enjoins Defendant from violations of Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") [15 U.S.C. § 78j(b)], Exchange Act Rule l0b-5 [17 C.F.R. § 240.10b-5], and Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 [15 U.S.C.§§ 77e(a), 77e(c) and 77q(a)];
(b) orders Defendant to pay disgorgement in the amount of $1,700,000.00, plus prejudgment interest thereon in the amount of $697,745.57;

(c) orders Defendant to pay a civil penalty in the amount of $130,000.00 under Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)] and Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)]; and,

(d) bars the defendant from participating in any offering of a penny stock for a period of five years.  
The SEC also filed a proposed final judgment for signature by Judge Seybert.

Fight Lawyer

Tuesday, July 27, 2010

Dave Herman To Fight For Shark Fights in September -- I Expect Another Lawsuit

Loretta Hunt is reporting over at Sherdog that Dave Herman has signed a one-fight contract to fight Aaron Rosa in a heavyweight bout for Shark Fights in September.

In my post here I addressed one of the legal aspects of a lawsuit between Bellator Fighting Championships and Dave Herman based on an article at Sherdog that provided great detail about the lawsuit. 

According to Loretta Hunt's piece today (and despite the litigation):

Herman said the promotion [Bellator] had offered him a slot in its upcoming heavyweight tournament up until June 16, but only under the debated contract’s terms. Herman said he turned that offer down.

Last week, Herman said Bellator offered him a single bout to face former UFC heavyweight champion Ricco Rodriguez on Sept. 9 or 16, for an $8,0000 purse and an $8,000 win bonus. That purse reflects what Herman would get for the third contracted fight of his contract.
Herman turned down the fight for reasons set forth in the article. 

For my purposes, the interesting part of the article is Shark Fights' downplay of any potential legal exposure that could arise from signing Herman. 

Loretta Hunt's article notes that "Herman’s complaint includes a Jan. 25 letter sent from Bellator’s attorney to Shine Fights, threatening legal action within 48 hours if it didn’t withdraw a written offer it had made to Herman. Herman claims interference from Bellator into late March, when the suit was filed."


In fact, I checked the docket in New Jersey and not only did Bellator send Shine a cease and desist letter, but it appears that Bellator also filed a complaint against Shine on February 9, 2010 (Case No. C-000040-10).

Given that Bellator has obviously threatened (and then commenced) litigation against a promotion in 2010 for trying to sign Herman after Herman purported to terminate his contract with Bellator in November 2009, Loretta Hunt asked the correct question to Shark Fights, i.e. aren't you a little worried that you are going to end up in litigation?

According to Loretta Hunt:
After speaking with his own attorney, Brent Medley [Sharks' matchmaker] was not worried about any legal action Bellator might take against the Texas-based promotion to prevent Herman from fighting for him.

'Contractually, with all the smokes [sic] and mirrors gone, I’m not sure Bellator will be able to issue a cease and desist letter that will hold,' said Medley.

Medley also questioned why Bellator would want to take such action.'My number-one question to (Bellator) would be why would they want to issue (a cease and desist letter) when the fighter doesn’t want to fight for them?' asked Medley. 'I don’t see why you’d prevent a fighter from making a living. If they decide to take legal action, in my eyes, it shows Bellator isn’t as fighter-friendly as it presents itself to the public.'
First, it is not whether the cease and desist will hold, but whether Bellator will get an injunction (if and when)  it has sued you -- or even if it doesn't get the injunction, whether you will be on the hook for damages for tortiously interfering with its contract with Herman.

I will not guess which way a court will go here because I got it wrong with Shine -- that said, Shine is a scary example of what can go wrong. 

Second, as to why Bellator would send Shark Fights a cease and desist (or sue for that matter) and not let Herman fight for whatever promotion he wants, it will argue that it contracted for an exclusive promotion agreement and it wants to hold Herman to his end of the deal.

Don't get me wrong, I am all for Herman fighting and making a living and perhaps he is right and will prevail on his claims against Bellator.  However, Shark Fights probably doesn't know what really went down between the two-sides and its opinion is irrelevant at least as far as I am concerned. 

As they say, caveat emptor.

Fight Lawyer

More On The UFC Subpoenas to Justin.tv and Ustream.tv

Following up on my post here discussing the UFC's statement that it had served subpoenas on two sites, Justin.tv and Ustream.tv, under the DMCA, I tracked down the subpoenas and took a quick look.

The subpoenas were issued by the United States District Court for the Central District of California in April 2010.  The attachments to the subpoenas detail the user name, URL, event, and the number of views connected with the allegedly infringing display, reproduction, and/or distribution of the copyrighted work. 

Notably, the subpoena only seeks production of:

Documents or electronically stored information in possession of or available to Justin.tv [or Ustream.tv] sufficient to allow Zuffa, LLC to identify the infringer(s) who made available for streaming on Justin.tv the video recordings described in the Notice of Copyright infringement attached as Exhibit A.
Thus, consistent with its press release, Zuffa is not seeking the identity of those individuals who may have viewed the stream, i.e. it is concerned with the individuals or entities providing the stream.

I also took a quick look at the details provided on both the attachment to the Justin.tv subpoena and the Ustream.tv subpoena and it appears that there are a number of different allegedly infringing user names and IP addresses at issue.  However, it appears that in some instances many of the distinct user names were traced back to the same IP address.

There also is a striking difference between the number of views on Ustream.tv and Justin.tv -- of all of the alleged views referenced in the Zuffa press release (114,000), it appears that less than 4,000 were through Ustream.tv.

Finally, as set forth above, even though the press release was issued last week, both subpoenas were signed by the clerk of the court in April 2010 and were returnable (Justin.tv and Ustream.tv were required to comply by) April 30 and May 10, 2010 respectively.  There could, have course, been extensions agreed upon, but these dates are on the face of the subpoenas. 

Fight Lawyer

Help Support Martial Arts Program for Teens in East Harlem

I was recently contacted by a high school teacher in East Harlem, David Grodsky, who, for the past two years, ran an after school martial arts/self-defense program for high school students at Park East High School (04M495), who were particularly interested in learning MMA.  The program was funded with a portion of an After School Violence Prevention grant from New York State. 

Unfortunately, this grant was cut from the budget and the program will not have the funding to continue running.

While there are those, like New York Senator Liz Krueger, who believe that MMA sends the wrong message to children, it is my belief (and hopefully my readers' belief) that the disciplines of MMA have a positive effect on children, including, inter alia, promoting discipline and self-respect and combating childhood obesity.

Indeed, according to the teacher in East Harlem:

Many [of the students who have participated in the program] don't have fathers, and all of them have reasons why they need to learn how to fight and/or defend themselves. None can afford to join a school or buy expensive gear. In its own way, the program functions as an anti-violence initiative, an anti-gang program, and a support program for the students who participate.

For my part, I think this is a great cause and a great way to expose (and hopefully change) the misconceptions about MMA of those like Senator Krueger who have voted against legalizing MMA in New York because of a purported negative impact on children.  That is why I have agreed to help support this program and I hope you will too.

Because the school year starts in September, the first order of business to help this cause is to get some additional equipment, including fight shorts, rashguards, mouthguards, and training gloves. 

Obviously, this is just the tip of the iceberg, i.e. there will be necessary fundraising to help with entrance fees and transportation to NAGA, Grapplers Quest, or other events etc.

For now, however, in order to make sure that the program can be offered for the upcoming school year, the program needs to find an equipment/clothing company willing to donate some equipment -- not much, perhaps only for 15 students at this juncture.

Important point to note, the students do not strike in sparring, i.e. sparring is limited to grappling. 

Please email me if you are interested and willing to help in any way.  You can also reach out to David directly at dgrodsk@gmail.com.

Thanks.

Fight Lawyer

Monday, July 26, 2010

Lou DiBella is Offered as Affliction's "Expert" in its Litigation with Fedor and M-1

Following up on my earlier coverage of the Affliction M-1/Fedor litigation, on July 23, 2010, Affliction filed the expert report of one of its purported "experts," boxing promoter Lou DiBella.

Essentially, DiBella is being offered as an expert who will testify as follows:

Based upon the business realities, as well as the customs and practices of the MMA/boxing professional unarmed combat pay-per-view industry, no competent promoter intent upon making a profit, or at least minimizing losses, would have done anything other than cancel the Fedor/Barnett Bout.

A couple of interesting points from the report.  First, DiBella states (in the "assumed facts" section and then in the opinion section) that after the January 2009 Affliction event, "Fedor and Barnett were considered by many MMA fans, as well as the MMA-focused media, as the two best MMA fighters in the world."

Really, the best two MMA fighters in the world?  I will let the other "MMA-focused media"  take this issue up. 

Second, the report states that Affliction agreed to pay Fedor and M-1 $1.5M collectively for participation in the Barnett bout, Affliction would net approximately $20 per ppv buy, and Affliction's pro forma "estimated a small profit for the August 1, 2009 Event based upon a projection of 200,000 'buys' and a net gate of $1 million."

DiBella's report acknowledges that MMA and boxing are different sports with different rules, but he believes that he is qualified to give an expert opinion because "they both involve unarmed combat, are governed by the same athletic commission regulations in states where MMA is legal, and the business model for pay-per-view events is the same for boxing and MMA."

For those of you that are interested, the relevant rules governing expert opinions are set forth in Rules 702 and 703 of the Federal Rules of Evidence.  The judge will ultimately evaluate whether DiBella should be an expert under this standard.

Rule 702 provides as follows:

Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fight Lawyer

Saturday, July 24, 2010

My Take On The UFC's Registration Of "Submission"

A number of posts yesterday, including this one at MiddleEasy.com, addressed the part of the UFC press release discussing the UFC's subpoenas to certain streaming sites under the DMCA (I addressed it here) that claimed registration of the word "Submission."

While I don't see this language at the actual UFC website where the press release is posted, it appears that the version emailed to the press contained additional language at the bottom. 

MiddleEasy.com reports as follows:
In today's UFC press-release, I noticed at the end of the email ZUFFA has now claimed the word 'Submission' as a registered trademark
'Ultimate Fighting Championship®, Ultimate Fighting®, UFC®, The Ultimate Fighter®, Submission®, As Real As It Gets®, Zuffa®, The Octagon™ and the eight-sided competition mat and cage design are registered trademarks, registered service marks, trademarks, trade dress and/or service marks owned exclusively by Zuffa, LLC and licensed to its affiliated entities and other licensees in the United States and other jurisdictions. All other marks referenced herein may be the property of Zuffa, LLC, its affiliates or other respective owners.'

(emphasis in original)

I took a quick look and Zuffa's registration is for "shorts, surfer's shorts, swimwear, hats, caps, bandanas, sweatshirts, wrist bands, jogging suits, socks, workout and sports apparel, namely jackets, slacks and shirts." 
 
Thus, it is a general apparel registration and it cannot prevent others from using the terms in the usual descriptive sense as it is understood in the context of a fight. 
 
Stated differently, I couldn't start a clothing brand "submission," but I could use it in any other way, including to describe the notion of a submission in fighting or to call a tournament a "submission" grappling tournament etc.
 
Fight Lawyer

Friday, July 23, 2010

UFC Serves Subpoenas On Streaming Sites Under DMCA -- The Law

As posted here at UFC.com, Zuffa has obtained subpoenas under the Digital Millenium Copyright Act (DMCA) and served them on two streaming sites, Justin.tv and Ustream.tv, to obtain the identity of users who allegedly "broadcast illegally uploaded content, including UFC events."

According to the UFC account:

For example, on January 2, 2010, over 36,000 people watched a live streaming feed of the UFC 108 Pay-Per-View event that was uploaded from a single IP address. Less than two months later, on February 21, 2010, that same IP address was used to upload multiple live streaming feeds of the UFC 110 Pay-Per-View event, which was watched by over 78,000 non-paying users.

Here is the relevant law -- remember the DMCA is designed to limit liability for service providers like Justin.tv and Ustream.tv, but it obviously does not provide similar protection for infringing users. 

17 U.S.C. § 512(h) provides as follows:

(h) Subpoena To Identify Infringer.— (1) Request.— A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.


(2) Contents of request.— The request may be made by filing with the clerk—

(A) a copy of a notification described in subsection (c)(3)(A);

(B) a proposed subpoena; and

(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

(3) Contents of subpoena.— The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

(4) Basis for granting subpoena.— If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

(5) Actions of service provider receiving subpoena.— Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.

(6) Rules applicable to subpoena.— Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure
"Service Provider" is defined at Section 512(k) as follows:

(k) Definitions.— (1) Service provider.—


(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph
As you can see, the definition of service provider is incredibly broad and would encompass (and protect) both Justin.tv and Ustream.tv.

Assuming the UFC has served the subpoenas, the identity of the allegedly infringing users will likely be turned over.

Fight Lawyer

Closed-Door Promotion Policy May Work For The UFC Fans, But Not For Boxing Fans

Given the recent news that there will be no Mayweather Pacquiao fight in 2010 and given the more disturbing news that fans will likely be stuck with either a Pacquiao Cotto rematch or a Pacquiao Margarito fight, I half-jokingly (and unrealistically) suggested to Kevin Iole over at YAHOO! that fans boycott any such self-serving Top Rank match-up. 

Boycott because neither fight is particularly interesting. Pacquiao completely dominated Cotto in November and I am not sure what would be different in a rematch. While Cotto now is trained by Steward, I don't think that is nearly enough to turn-around what was a completely one-sided affair.  With Margarito, Shane Mosley completely dominated him on January 24, 2009 after he was caught allegedly trying to cheat by loading his gloves.

Self-serving because Pacquiao, Cotto, and Margarito are all Top Rank fighters and because, as Arum stated at the press conference, he does not want to give any other promoters a "free ride":

Bradley is fighting Saturday. Tim Bradley is a tremendous fighter and he’s a great young man. But the problem with a guy like Tim Bradley is that even though you and I know what a superb fighter he is, the public really doesn’t know. That’s why a lot of these promoters are shouting out names of very good fighters. We spend hundreds of thousands of dollars building up our fighters and publicizing them so they are pay-per-view attractions. Losing money on a lot of events making them. The other promoters don’t really promote their fighters. They take money form HBO or Showtime or a little Indian casino and they think they’re doing the kid a big service. I’m not going to give them a free ride on the work we have done.

Paul Williams is a tremendous fighter – a great fighter. But he hasn’t been promoted correctly. He doesn’t have any following, can’t sell any tickets. Nobody is financing the pay-per-view fight. On a HBO fight – HBO pays the money. I’m the one that’s financing the pay-per-view and don’t want to give anyone a free ride.
Kevin breaks down the the dynamics of Top Rank's closed-door policy in his article "Closed-door policy won’t benefit boxing," and concludes as follows:

Making an honest effort to make the best fights, regardless of who promotes them, is all that Arum’s many loyal, paying customers ask. That goes for all fights, not just Mayweather-Pacquiao.

Keeping everything in-house is better in the short term, but it doesn’t help grow the sport.

Arum’s overriding concern shouldn’t be about what is best for Top Rank, but rather what’s best for his customers and what’s best for boxing.

The healthier boxing gets, the better Top Rank will do. The UFC has a closed-door promotional policy, but mixed martial arts a relatively new sport that was created that way from the ground up. Boxing operates dramatically differently and there’s no changing it now.

In boxing, opening the doors, not closing them, is the best way to improve the sport’s health.

A healthier, more financially robust sport will benefit all.
I agree with Kevin that the closed-door policy will not work for boxing.  I also think that the UFC closed-door policy does work for the fans of the UFC.

I don't think there can be much dispute that the UFC closed-door model is good for the fans -- despite all the negative things people may say about Dana White and the UFC.  With limited exception, the UFC puts on the fights that the fans want to see -- indeed, it can do so because it has the majority of the top fighters under contract. 

With boxing, as is evidenced by a likely Pacquiao Cotto/Margarito fight, the fans will not get the fight they want, but will instead get what is probably going to be a profitable fight for a risk averse Top Rank, i.e. even if Pacquiao were to lose, which would kill any hope of a Pacquiao Mayweather fight, it would be to a Top Rank fighter fighter at least. 

Because there are a number of promoters out there, including, Golden Boy, Don King, Top Rank, DiBella, Gary Shaw, Goosen Tutor, Sauerland, Mayweather Promotions etc., and new promoters seem to be popping up every day, no promoter has a stronghold on all of the talent and can't self-promote all of the fights the fans want to see like the UFC can.

That is why for boxing, tournaments like the Showtime Super Six, where more competitive championship fights are made across promotions, make sense and are the ticket for giving the fans the fights they want to see.

Hopefully, HBO, Top Rank, and/or whoever else intends to televise the next Pacquiao bout realizes this and puts together a fight that the fans want to see -- as opposed to one that may be beneficial to Top Rank's pockets in the short-term.

Fight Lawyer

Thursday, July 22, 2010

I don't Think Pacquiao and Mayweather Jr. are Close to Settling Their Litigation

I just did a quick read through Pacquiao's opposition to Mayweather Promotions' motion to dismiss Pacquiao's Amended Complaint. 

Given that the parties are still spending money to litigate, I have my doubts that this thing is going to settle anytime soon.

In my post here responding to a reported claim by Jeff Mayweather that the case was being dismissed as to Mayweather Jr., I indicated that even though the case was still active on the docket, parties often negotiate settlements for a period of time prior to formally filing a stipulation of dismissal with the court. Thus, it was possible that Jeff Mayweather's account was correct despite the fact that the docket still shows that the case is active and that the case has not been dismissed at least as to Mayweather Jr.

Given that Pacquiao just filed this brief -- and is continuing to spend money -- I have my doubts that this case is close to being resolved. Ordinarily, if parties are in settlement negotiations, they file a stipulation or otherwise at least attempt to put off deadlines -- so that money is not spent unnecessarily -- while they try to paper the settlement.

Here, given that Pacquiao's brief is only directed at Mayweather Promotions as a party, it is still possible that Mayweather Jr. could get dismissed individually, but would it really make a difference if Pacquiao intends to pursue his claims for defamation against Mayweather Promotions for Mayweather, Jr.'s alleged statements (as Pacquiao does -- described below).

On to the substance of the brief for those that are interested in the more technical aspects of the argument.

As set forth in my post here, the allegedly defamatory statement allegedly made by Leonard Ellerbe (on behalf of Mayweather Promotions) was as follows:

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

In its motion to dismiss, Mayweather Promotions argued, inter alia, as follows:

This factor is difficult to analyze because Mayweather Promotions did not make a statement of fact.  It asked an open-ended question and merely invited a response from Pacquiao. . . reasonable people would see it as the open-ended question that it was inviting further explanations . . .

In Pacquiao's opposition, he argues, inter alia, as follows:

In this case, a reasonable person, aware of the assault on Pacquiao undertaken by Mayweather, Jr., Mayweather, Sr., and others, certainly could interpret Mayweather Promotions’ statement, '[i]f you have nothing to hide, then why not comply' to imply that Pacquiao was 'hiding' his performance-enhancing drug use. This is especially true because a reasonable listener would understand that, as a boxing promoter at the time engaged in confidential discussions with Pacquiao and his representatives, Mayweather Promotions has access to personal, intimate, confidential information the listener does not. See Manufactured Home Cmtys., Inc. v. County of San Diego, 544 F.3d 959, 965 (9th Cir. 2008). On a motion to dismiss, the question is not whether the jury would come to this conclusion, but if it could. 
Pacquiao also asserts that Mayweather Promotions' motion should be denied because it failed to address the other allegedly defamatory statements in the Amended Complaint, including statements allegedly made by Mayweather, Jr. as President of Mayweather Promotions and by Richard Schaefer, Oscar de la Hoya, Roger Mayweather and Mayweather, Sr. as alleged co-conspirators.  I address some of these other statements in earlier posts and I also discuss the co-conspirator allegation if you are interested. 

With respect to the Ellerbe statement, as set forth in my earlier post, I do not think this alleged statement was defamatory because Ellerbe is not asserting a fact 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.

That said, this is a motion to dismiss, so the burden on Mayweather Promotions is high at this juncture.

Fight Lawyer

Wednesday, July 21, 2010

My take on the Sherdog Article About the Dave Herman/Bellator Litigation

Over at Sherdog, Loretta Hunt wrote this piece on a legal battle taking place between heavyweight MMA fighter Dave Herman and Bellator Fighting Championships. 

The article covers the nature of the dispute in depth (and well) and I won't repeat it here.  The crux of the lawsuit is as follows:

Herman, 25, is suing Bellator Fighting Championships for allegedly breaching a six-fight, 30-month contract he signed into with the promotion on Oct. 28, 2008. Herman is also claiming tort[i]ous interference on the part of Bellator for a handful of fight assignments -- including a four-fight contract offer from Strikeforce -- he’s tried to secure since January. The promotion is countersuing for alleged breach of contract as well.

According to the article, there was an addendum to the contract that provided that Herman could fight outside the promotion with the promotion's written permission. 

I have not seen the complaint, counterclaims, or any documents for that matter, but according to the article Herman claims that the contract provided that Herman would participate in the Fall 2009 Bellator heavyweight tournament, i.e., approximately one-year after he signed the deal, and that he was guaranteed two fights before the tournament (or before November 2009). 

There is plenty of detail in the article concerning the back-and-forth concerning Herman's participation in other fights for other promotions leading to the tournament (and whether Herman had written permission). 

The part that struck me, however, was the following passage:

On Nov. 2, 2009, Herman advised the promotion by e-mail and regular mail that it was in breach of his contract for not providing the second bout within the contracted year. On Nov. 7, Herman fought again for Japan’s Sengoku promotion, scoring a first-round knockout against Jim York.

Bellator attorney English said Herman blatantly breached his contract at this time by not allowing the promotion the 45-day cure period allotted to try and remedy the alleged breach. However, for the next 45 days, Herman’s camp said Bellator did not offer the fighter another bout.
While I am certainly sympathetic to Herman's cause after reading the article, i.e. his desire to fight, the above-passage, if true, would certainly seem to support a counterclaim by Bellator and may undercut Herman's own claim for breach.  

Specifically, advising Bellator on November 2, 2009 that it allegedly failed to live up to its end of the bargain to provide two fights on or before November 1, 2009 and then taking a fight 5-days later, would seem to disregard the 45-day cure period.

Essentially, the cure period would give Bellator a 45-day window to correct any alleged breach.  That is, Bellator could have provided a fight in that window.

I guess Herman could be arguing that once the November 1, 2009 date passed without a second bout, the breach was final and the 45-day cure period was not intended to extend the period of time Bellator had to put together the two fights.  In other words, the cure period was intended to cover other types of breaches, such as failure to promote the fights or failure to make timely payment etc.

I can't really say. 

However, the fact that Herman waited almost exactly 45-days (by my count, 46-days), i.e. from November 2, 2009 - December 18, 2009, to advise Bellator that the contract was terminated suggests that Herman understood that he had to provide a 45-day window to cure before he had the right to declare the contract terminated. 

Nonetheless, allegedly without written permission and allegedly in breach of the contract, Herman took the fight in Japan before the expiration of the cure period.

While Herman claims that Bellator didn't provide a fight in the 45-day period after his November 2, letter (and so Bellator didn't exercise its right to cure), that would not excuse any alleged breach by him that pre-dated the expiration of the cure period.  In fact, it may actually excuse Bellator's breach because it could arguably justify its failure to provide a fight in the 45-day window. 

It will be interesting to see how this plays out, but the article states that the judge already denied Herman's motion for an injunction, which is not a great sign for Herman. 

Fight Lawyer

Tuesday, July 20, 2010

NYSAC Lifts Suspension on Golden Boy Promotions And GBP Strikes Back at Certain Members of the Press

Following up on my post here, according to a statement issued by Golden Boy Promotions, after conducting a hearing, the New York State Athletic Commission has agreed to lift the 90-day suspension imposed on Golden Boy Promotions for allegedly failing to provide certain contracts requested by the Commission. 

According to the statement, the Commission agreed to lift the suspension after Golden Boy Promotions entered into a consent order (for some reason, only the first page of the order is provided at the link) and agreed to pay a $10,000 fine.

Another interesting part of the statement is the attack on certain reporters for claimed "unprofessional and personally vindictive reporting that falsely claimed that Golden Boy had been suspended for unethical conduct - arising from supposed financial transactions relating to Golden Boy’s May 15, 2010 event in New York - after a full hearing."

In this regard, Golden Boy Promotions sends a firm message:

Golden Boy is evaluating its legal options against Mr. Kimball and his publishers. It is our hope that the matter can be put to bed with a retraction and an apology. However, Golden Boy wants to make clear that, going forward, it will not tolerate this kind of irresponsible journalism, and will move swiftly to vindicate itself in court and elsewhere.
Fight Lawyer

Fedor Will Attend The M-1 Selection-Americas Event in August and Will Be Deposed Then too

On July 9, 2010, Affliction noticed the depositions of Fedor Emelianenko, Joost Raimond, Vadim Finkelchtein, and M-1 Nederland for July 19-21.  I have previously posted about the litigation pending in the United States District Court for the Central District of California here.

Plaintiffs objected and moved for a protective order pushing the dates to August because "the deponents are all in Europe; are engaged in business activities which require their immediate presence and that 10 days notice for these depositions is inadequate." 

In his declaration in support of his motion for the protective order, Fedor states that he is a special guest scheduled to appear at the final competition for the "Eastern Europe" and "Western Europe" regions of the 2010 M-1 Selection being held in Moscow Russia on July 22, 2010.  Fedor also states that he will be in the United States in early August for the 2010 M-1 Selection-Americas event. 

On July 19, 2010, Magistrate Judge Marc L. Goldman granted plaintiffs' motion for a protective order holding that the "deposition subpoenas clearly do not permit a reasonable time to comply and pose an undue burden upon Plaintiffs and their attorneys."  Accordingly, Magistrate Judge Goldman pushed the depositions of the four deponents to the week of August 9, 2010. 

Magistrate Judge Goldman also extended the time for completing the deposition of Affliction's Todd Beard to August 20, 2010.

Fight Lawyer

Monday, July 19, 2010

Pacquiao's Defamation Lawsuit Against Mayweather Jr. Still Active According to the Docket

Over the weekend I read here that according to Jeff Mayweather, Pacquiao was going to dismiss his defamation lawsuit against Floyd Mayweather Jr. that is pending in the United States District Court for the District of Nevada.  I have posted previously about the case here.

Notably, the post discussing the dismissal does not indicate whether Pacquiao intends to dismiss the action as to the other defendants, including Floyd Mayweather Sr., Roger Mayweather, Mayweather Promotions, LLC, Richard Schaefer, and Oscar De La Hoya.

Specifically, the post provided as follows:

Speaking to FightHype’s Percy Crawford, Jeff Mayweather informed him that the lawsuit was dropped. When asked why, Mayweather replied, “Well Percy, not only that, but the other thing is, realistically, he knows he didn’t have a fucking case. You can’t sue everybody because they said something; Floyd ain’t the only fucking person that said that. Paulie Malignaggi said it way before Floyd did and fucking Kermit Cintron said it way before Floyd did. And then you have other people that said it.”

In response to this post, I checked the docket and, as of today, the case has not been dismissed. 

In fact, on July 16, 2010 (Friday), Mayweather Jr., Mayweather Promotions, and Pacquiao filed a stipulation with the court concerning, inter alia, continued briefing on Mayweather Promotion's motion to dismiss the first amended complaint.

I should point out that the fact that the case has not been formally dismissed, however, does not mean that Pacquiao has not in principle agreed to dismiss the action. 

As a practical matter, parties often negotiate settlements for a period of time prior to formally filing a stipulation of dismissal with the court.  Thus, it is possible that Jeff Mayweather's account is correct despite the fact that the docket still shows that the case is active and that the case has not been dismissed at least as to Mayweather Jr. 

I will continue to monitor the docket. 
Fight Lawyer

Saturday, July 17, 2010

Senator Krueger Amends Her Blog Post Opposing MMA in New York

I am happy to report that Senator Krueger has now at least amended her blog post on her opposition to legalizing MMA in New York. 

While it is still up and I still disagree with her positions, she has at least removed the wholly inaccurate statement that MMA does not require any protective equipment.

I recently posted my response to Senator Krueger's email to me addressing my blog post attacking her post on the New York Senate website. 

Since my email to her earlier this week, as I suggested, she has now amended her post and removed her statement concerning protective equipment. 

I have not yet heard back from her (in response to my email) on my invitation for a debate on these issues, but will keep you posted.

Fight Lawyer

Friday, July 16, 2010

Affliction Voluntarily Drops Counterclaims Against M-1

Following up on my posts here discussing Affliction's counterclaims against M-1 Global, Affliction has now dismissed its counterclaims without prejudice.  Here was my earlier summary of the counterclaims:
On May 26, 2010, Affliction filed counterclaims against 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.
In response to my post describing the counterclaims, I did a follow-up post (with the caveat that I was not a tax lawyer) setting forth the applicable law concerning whether Affliction could have been setting itself up for criminal liability by asserting its counterclaims.

The notice of withdrawal of the counterclaim does not provide the reason, but I think this likely had something (or everything) to do with it. 

Fight Lawyer

Thursday, July 15, 2010

Update on MMA In New York After My Conversation with Assemblyman Bing

In continuing my coverage of the efforts to legalize MMA in New York, I reached out to Assemblyman Bing to discuss the current status of these efforts. For my past posts on this topic click here.


At the outset, Assemblyman Bing acknowledged that the standalone bill to legalize MMA, which had passed the Senate, was for all intents and purposes stalled and would need to be re-introduced next year and again begin its progression through the committee process.

On the budget side, Assemblyman Bing explained that the Legislature, i.e. the Assembly and the Senate, agreed on the expenditure side of the budget based on the Governor's proposed budget with certain added expenditures. Because of the added expenditures, the Governor vetoed the Legislature's proposal.

On the revenue side, which is where MMA would fall, the Assembly and Senate agreed to exclude the provision lifting the ban on MMA. The Assembly has passed the revenue portion -- the Senate has not yet.

Given that the Governor vetoed the Legislature's proposed budget, there will be further negotiation on the budget and there is, therefore, a small possibility that the ultimate budget will still include a provision legalizing MMA.

That said, the fact that the Senate -- despite having passed the standalone bill legalizing MMA -- agreed with the Assembly to keep MMA out of the revenue side of the budget does not bode well for MMA this year. Bottom line, MMA in New York for this year is not completely dead, but it is highly unlikely.

I also discussed certain of MMA opponents' proclaimed objections to legalizing MMA, including claims that legalizing MMA in New York will detrimentally increase children's' exposure to the sport and that it is a dangerous and potentially fatal sport.

With respect to the argument concerning exposure to children, Assemblyman Bing reiterated that MMA is now on network television (as well as PPV and regular cable) and that kids can take a short train ride to New Jersey to see live fights and so any exposure argument is not really credible.

Moreover, Assemblyman Bing stressed that the disciplines of MMA have been around and recognized for a very long time, have been taught, and many are Olympic sports, and that they promote discipline and self-respect in children and combat childhood obesity.

With respect to the second argument that MMA is dangerous, aside from all of the comparative arguments, i.e. that other sports have a higher incidence of injury and casualty, legalizing and then regulating MMA in New York will actually likely reduce the incidence of injury arising from MMA because it will, in part at least, displace illegal, underground MMA occurring in the state and will give the state -- in particular the New York State Athletic Commission -- additional leverage to combat underground fight clubs and prevent unsanctioned bouts.

As I did for Senator Krueger, I invited Assemblyman Bing to debate these issue (and others) with other politicians and he said he was willing to do so.

I want to thank Assemblyman Bing for his time and wish him good luck on his reelection campaign. New York needs more politicians that objectively and reasonably approach the issues facing the state.

I will continue to monitor.

Fight Lawyer

Wednesday, July 14, 2010

Mayweather Jr.'s Counterclaim for Defamation Against Pacquiao

Following up on my posts here and here about Pacquiao's 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, I checked the docket and it appears that Mayweather Jr. is firing back.

Specifically, on July 2, 2010, Mayweather Jr. asserted his own counterclaim (for practical purposes no different than a complaint in the first instance) against Pacquiao for defamation.  Specifically, Mayweather Jr. claims as follows:

In retaliation for the rampant speculation regarding his possible drug use in the press, on December 22, 2009, Pacquiao, without provocation, told the website Fanhouse.com, 'You know what, I don't even know what a steroid is.  I've never done that.  Maybe all of them [Mayweather Jr. and his representatives] -- they're using the steroids, not me.'  

Here is a link to the Fanhouse article referenced in the counterclaim if you want to check it out.

The relevant question is whether a reasonable reader understand Pacquiao to be making a factual statement that Mayweather and his camp are using steroids?

For my part, I do not think the alleged statement is defamatory because the statement, on its face, is speculation (e.g., "maybe") and not a statement of fact (remember statements of fact can be defamatory whereas statements of opinion generally are not) since Pacquiao claims he doesn't even know what a steroid is. 

For this reason, I think the statement is protected. 

What do you think?

I will continue to monitor.

Fight Lawyer

Marcos Santos' Brazil Trip Trailer

Just checked this video out on Youtube -- it is a trailer from my trip to Brazil last year.  That's me stuffing my face at the seafood buffet in Rio.  Good stuff.

Fight Lawyer

Tuesday, July 13, 2010

New York State Athletic Commission's Suspension of Golden Boy Promotions

As reported here by ESPN (and in a number of other places), Golden Boy Promotions received a 90-day suspension by the NYSAC arising from the HBO May 15, 2010 card featuring Amir Khan v. Paulie Malignaggi and Victor Ortiz v. Nate Campbell.

In a statement, Golden Boy attempts to "dispel some false statements made by certain reporters concerning the suspension."

You can check out the ESPN article with statements by Golden Boy's attorney and the statement over at MaxBoxing.com for more on the background.

There are two points in the statement that I wanted to address. 

First, Golden Boy is correct in its assertion that "THE NYSAC WAS NOT IN ANY WAY OBLIGATED TO PROVIDE SUCH A HEARING OR WARNING [prior to issuing the suspension]."   In fact, under the relevant regulations, the NYSAC is only obligated to provide a hearing if it is contemplating revoking a license and/or issuing a fine.  It has no obligation to hold a hearing prior to issuing a suspension.

Second, Golden Boy claims that the NYSAC requested the:

HBO and DiBella Agreements, as well as any written agreements between Golden Boy and the fighters on the May 15 card" and that the "person responding to the request erroneously questioned the NYSAC’s authority to request copies of Golden Boy’s promotional contracts, asked for the basis for the requests, and did not send those contracts. This was clear error on the part of the Golden Boy, as under all circumstances, the contracts should have been sent to the ABC [sic]. 

On July 1, 2010, Golden Boy contacted the Commission by sending it an email which stated that the contracts did not have to be disclosed to the NYSAC because they would not be held confidential. According to counsel for the Commission, this conclusion as to the confidentiality of the requested disclosures issue was erroneous. In any event, Golden Boy erred in not immediately sending the contracts to the ABC [sic] at this point in time.

Aside from the fact that the statement refers to the ABC as opposed to NYSAC, Golden Boy is correct that all contracts must be sent to the NYSAC under the regulations whether it believes the contracts are confidential or not.  In fact, there is no provision in the relevant regulations that I am aware of that mentions any right to ever withhold any information from the NYSAC on confidentiality grounds or otherwise.

It is clear from the regulations that the NYSAC not only requires virtually every conceivable contract in any way connected to a fight card, but it also undeniably has the right to request any information that it deems necessary in evaluating a fight card.  Accordingly, Golden Boy's conclusion is correct.

Bottom line, it was bad that Golden Boy didn't provide the agreements in the first instance in May 2010, but attempting to justify the failure to produce the documents on confidentiality grounds in July in my opinion only made matters (and the punishment) worse.

Fight Lawyer

Monday, July 12, 2010

My Response to New York Senator Liz Krueger

As I posted here, New York Senator Liz Krueger responded to my blog posts criticising her article on her opposition to the legalization of MMA in New York.

Here is my response:

"Dear Senator Krueger:


Thank you for your email response to my blog posts criticising your post about your opposition to the legalization of MMA in New York.

While I appreciate that you have taken the time to respond to my criticism of your blog post, I am disappointed that your blog post is still up at the New York Senate website.

Your failure to take down -- or at least amend -- your post after having read my blog is particularly troubling because it is factually inaccurate.

First, in response to my assertion that states where MMA is legalized do require protective equipment (contrary to your statement in your post), while you recognize that I have a "clearer" understanding of the relevant regulations and laws in states where the sport is regulated, thereby tacitly acknowledging the inaccuracy of your post, the post nonetheless still resides on your blog.

Perhaps more troubling is the fact that there is a specific provision in S2165 -- the bill that you so proudly opposed -- that requires specific protective equipment. Given the blatant inaccuracy of this aspect of your post, I ask, again, that you, at a minimum, amend your post to accurately reflect the substance of S2165 and the law and regulations concerning MMA generally.

Second, as set forth in my post, I ask that you point me to these purported "studies" in the United States and Great Britain. While I will not dispute that participation in MMA is not without injuries, I would like the studies that you refer to and am interested to see the analysis concerning the incidence of these injuries and what if any comparisons are drawn with other sports recognized in New York.

While I recognize that comparative analysis is not that important to you, I would be very surprised if the studies you rely on did not credibly undertake at least some comparative analysis in drawing their conclusions.

Third, you state that you have seen young kids in "organized" classes "beating" on each other and that you do not want to encourage this behavior. At the outset, nothing about S2165 changes the fact that there will still be jiu jitsu, judo, tae kwon do, muay thai, krav ma ga, and other martial arts classes taking place in New York. In this regard, are you even sure that these "organized" class "beatings" were in an MMA class, as opposed to a boxing or tae kwon do class, which have been taking place in this state for decades? Moreover, how do you define "beatings?" Were the children not wearing protective equipment in these "organized" classes?

Please send me links to these videos so that I (and your voters) can judge the conclusions you have drawn.

Finally, as I stated at my blog, I certainly appreciate that there can be informed debate on the pros and cons of legalization of MMA and I recognize that there will be those who are opposed. Nonetheless, given some of the inaccuracies and the lack of detailed analysis in your post (admittedly, your email does at least attempt to cure the lack of analysis), I do not think your blog post credibly advances the debate.

In this regard, I would like to set up a debate or round table discussion with a member of the Assembly (or Senate) who is in favor of the legalization of MMA in the state. Are you willing to participate in such a debate?

Please let me know.

Very truly yours,

Justin Klein"
 
I will keep you posted. 
 
Fight Lawyer

Zuffa Piracy Settlement

Back from vacation, relaxed, and ready to get back to work -- sort of.

When I got back, I caught this article over at MMAjunkie.com about the UFC's purported settlement with approximately 500 businesses and/or individuals that had allegedly illegally broadcast UFC events without a proper paid license.

As I posted here about just one of these lawsuits (there are a number of them pending and continually filed), Zuffa alleged violations of the Federal Communications Act (47 U.S.C. 553 and 605) and the Copyright Act (17 U.S.C. 501).

In its complaint, Zuffa alleges that defendants allegedly intercepted the broadcast of UFC and 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.

Bottom line, the crux of Zuffa's claim is that UFC events were broadcast without payment of the appropriate commercial distribution fee.

I am not surprised that Zuffa globally settled these complaints because it is questionable what, if anything, Zuffa really hoped to recover from what are mostly small local bars. 

That said, I certainly appreciate that Zuffa wants to send the message that it will not take alleged illegal broadcasts sitting down and will continue to pursue these matters and send a message. 

My guess is that the settlement amounts were small given the nature of the defendants generally.

Fight Lawyer

Tuesday, July 6, 2010

Application of the Ali Act to MMA

I am on vacation and have limited access to email etc. so I will need to keep this short.

I received a question from a reader concerning efforts in Washington to get MMA within the purview of the Muhammad Ali Act. 

As set forth in my post here where I discuss Geoff Varney's law review article, "FIGHTING FOR RESPECT: MMA’S STRUGGLE FOR ACCEPTANCE AND HOW THE MUHAMMAD ALI ACT WOULD GIVE IT A SPORTING CHANCE," he describes current efforts to bring MMA within the Ali Act and also describes how the Act could easily be expanded to reach MMA.  Given the scope of Geoff's excellent analysis, I won't reinvent the wheel here.

The reader also states that the UFC has hired a lobbying firm in Washington to prevent passage of any bill so expanding the Act and asks how the bill could be expanded in light of that opposition. 

Without getting into the textbook details of the legislative process, in my mind there simply needs to be lobbying on the other side of the equation, i.e. on behalf of the fighters, through management or otherwise, or perhaps other promotion organizations, or active political involvement by politicians who see this as a critical issue. 

Fight Lawyer

Friday, July 2, 2010

New York Senator Liz Krueger Responds To My Post Attacking Her Blog Post Opposing Legalizing MMA

In response to my post here (and undoubtedly the letters and communications from readers), I received this response from Senator Liz Krueger concerning my attack on her blog post about her opposition to the legalization of MMA in New York:

Dear Mr Klein:


Thank you for reaching out to my office regarding Mixed Martial Arts (MMA) legislation which I voted against. I appreciate you taking the time, and I have also read your blog post on the issue. I doubt we will come to an agreement on the bigger issue, because my objections to MMA go beyond whether or not practitioners use gloves or not, but I accept that you clearly have a clearer understanding of how MMA is currently practiced in states where it is regulated.

That said, I still do not believe that legalizing MMA is a good idea. Whether or not the MMA causes more injuries than boxing is not the key question for me, which is one reason I did not make that comparison. What is clear to me is that medical studies in Britain and the United States have found that there are significant injuries, up to and including death, from MMA.

Furthermore, while all athletic endeavors hold some risk of injury, the unfortunate attraction of this sport to children is particularly disturbing to me. I have seen stomach-turning videos of kids who looked to be around 8 years old in organized classes beating on each other, and I do not think New York State should make it our policy to encourage that behavior.

I also understand that kids can go to other states to see these matches or watch them on TV. But why should New York make it easier for them, or legitimize this violent behavior? I believe that the state should act to discourage rather than encourage violence, and therefore cannot see support legalizing another violent sport like MMA.

While we may not agree on this issue, I appreciate your input. I accept that thoughtful people can have differences of opinion on this issue, but continue to believe that sanctioning mixed-martial arts is not good public policy for our State.

Sincerely

Liz Krueger

State Senator
 
I certainly appreciate that the Senator responded to my post and I intend to respond after my vacation -- I will also attempt to set up a roundtable with other politicians, like Assemblyman Bing, and others who are on the other side of the debate -- but I am a little disappointed that, despite her acknowledgement that her point on protective equipment is inaccurate, her post is still up at her blog. 
 
While I also appreciate that she recognizes that I have a clearer understanding of the protective equipment requirements in jurisdictions that have legalized MMA, she fails to address the fact that the very bill she is so very proud of herself for opposing actually required protective equipment itself....
 
On her other points concerning children and health issues, I recognize that there is room for disagreement and I look forward to discussing these issues (perhaps debating) in the near-term.
 
Fight Lawyer

Fedor’s Tapout Sponsorship Deal that Never Came To Be – The Law?

Check out my guest blog post over at UnfilteredMMA.com on "Fedor’s Tapout Sponsorship Deal that Never Came To Be – The Law?" 

Fight Lawyer

Thursday, July 1, 2010

Assemblyman Englebright's Take on why MMA was Not Legalized in New York this Year -- Reading Between the Lines

I just read this post over at MMAjunkie.com with an interview with Assemblyman Englebright, who is the sponsor of the bill to legalize MMA in New York, and was particularly interested in this quote:

"If we were able to get it to the floor, we'd probably pass it with Republican votes," Englebright said. "But there is a desire, I think, on the part of many of the members of our Democratic majority to resolve this matter satisfactorily within our own [party] before submitting it to the uncertainties of a debate."
So, stated differently, the bill would pass if the full Assembly had the opportunity to vote -- as it should, but the majority will prevent that from happening until there is a consensus (or satisfactory resolution of the matter whatever that means), which, given Assemblyman Reilly's vehement opposition, there likely will never be.

I had previously speculated that the Assembly Speaker, Sheldon Silver, was opposed to legalizing MMA because the bill stalled out last year in the Ways & Means Committee and because it was not included in the Assembly's proposed budget.  I had indicated that the Assembly Speaker's opposition to the bill would likely be fatal.  Well, the Assembly Speaker has made clear that he is opposed to the bill and that would explain the fact that another year will pass with a prohibition still in place. 

Specifically, as set forth in this video (at about minute 2:20), the Speaker states that he will let the bill go to conference, but that he is not "enamored" with the idea of mixed martial arts in the state.  Reading between the lines, Silver is saying that the bill will still sit in Committee but that, in reality, because he is opposed, it has no probability of success.   

While I appreciate that Assemblyman Englebright is optimistic about the bill's passage down the road, I would like to know how he intends to persuade the Speaker that MMA is not the barbaric activity that O'Reilly claims--or how he otherwise intends to get the Speaker on board. 

Until the Speaker is persuaded, unfortunately, the bill has virtually no chance of success even if the Governor is on board and the Senate is on board--as they were this year. 

For more on the "why," check out Seymour Lachman's book, "Three Men in A Room." 

Fight Lawyer