When Zuffa or their commercial distributor (Joe Hand Promotions) sue for piracy of UFC Pay Per View products in the US they usually rely on cable and satellite signal theft legislation.  These laws often allow them to recover, in addition to damages, their legal fees from the opposing parties.  When their lawsuits fall short, however, defendants don’t enjoy equal privileges in recovering lawyer fees as demonstrated in reasons released earlier this month.

In the recent case (Joe Hand Promotions, Inc v. Soto) the Defendants were sued for alleged piracy of UFC 128.  The lawsuit was dismissed when Joe Hand failed to comply with the Court’s scheduling order.  The Defendant spent over $9,000 in attorney fees in successfully defending the lawsuit.  They asked the Court to award these but District Judge Winmill dismissed the request finding the attorney fee remedy is a one way street typically only available to the Plaintiff’s.  In finding that the remedy was not available to Defendants absent evidence the Plaintiff acted “in bad faith, vexatiously, wantonly, or for oppressive reasons” the Court provided the following reasons:

Under both 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii), awards of attorney fees are limited to “an aggrieved party who prevails.” Other districts have determined that a defendant is not an “aggrieved party” within the meaning of the statutes and that nothing within the Cable Act statutes authorizes an award of attorney fees to a prevailing defendant. VJC Productions., Inc. v. Kydes, 903 F. Supp. 42, 43 (S.D. Ga. 1995); Kingvision Pay-Per-View, Ltd. v. Manente, 1:05CV00280 OWW SMS, 2006 WL 120141 (E.D. Cal. Jan. 12, 2006); Joe Hand Promotions, Inc. v. Nekos, 96-CV-706 (FJS), 1998 WL 238619 (N.D.N.Y. May 5, 1998). As reasoned by the court inVJC Productions:

Having authored a “two-way street” fee-shifting statute in the past, 42 U.S.C. § 1988, Congress certainly knew how to enact the same component in 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii). “Where Congress knows how to say something but chooses not to, its silence is controlling.” In re Haas, 48 F.3d 1153, 1156 (11th Cir.1995). By limiting these Cable Communications Policy Act fee-shifting statutes to an “aggrieved” party, rather than a mere “prevailing” party (under which a defendant may recover fees under 42 U.S.C. § 1988), Congress signaled its intention not to authorize fee awards for defendants in Cable Act cases.

903 F. Supp. at 43-44. The Court agrees with the reasoning in VJC Productions and, likewise, holds that 47 U.S.C. § 553(c)(2)(C) and § 605(E)(3)(B)(iii) do not authorize an award of attorney fees to a prevailing defendant.

Welcome UFC Central Listeners

Posted: October 16, 2014 in Uncategorized

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Earlier this week I had the pleasure of making an appearance on UFC Central Radio with Showdown Joe Ferraro along with UFC Bantamweight Mitch Gagnon and Fox Sports MMA writer Marc Raimondi, discussing some of the latest legal topics addressing combat sports.   You can listen to the full episode here.

I’d like to thank Joe for having me as a guest once again.  If you are visiting here for the first time after listening welcome!  If you are looking for more information on the topics we covered here are some quick links to articles addressing these in more detail:

Piracy Lawsuits in MMA

Ryan Ford Fighting With a Pre-Existing Broken Arm

Nova Scotia Fighter Pay Law

Manitoba Legalizes Amateur Combat Sports

Promoter Liable After Fighter Fails Pre Bout Drug Test

Prince Edward Island Legalizes Amateur Combat Sports

Weight Cut Reform in MMA

In the latest UFC Pay Per View prosecution to reach judgement following alleged event piracy by a commercial establishment, $18,900 in damages plus attorney’s fees were awarded by the US District Court, S.D. Texas, Houston Division.

In this month’s case (Joe Hand Promotions, Inc. v. Dadson) the Defendant was sued after displaying UFC 124 in their establishment without first paying the commercial sub licence fees to the Plaintiff.  The Plaintiff sued and obtained default judgement.  In finding total damages of $18,900 were appropriate District Judge Gray Miller provided the following reasons:

…To establish liability, plaintiff need only show that 1) the Event was exhibited in defendants’ establishment and 2) plaintiff did not authorize the particular exhibition of the Event. Id. Plaintiff’s pleadings establish both of these elements. Dkt. 1 at 2-3.

47 U.S.C. § 605(e)(3)(C)(i)(II) allows courts to award statutory damages to a plaintiff in an anti-piracy case of at least $1,000 and no more than $10,000, as the court considers just; § 605(e)(3)(C)(ii) allows courts to award additional damages for willful behavior up to $100,000; § 605(e)(3)(B)(iii) mandates that courts award reasonable attorneys’ fees and full costs to the party who prevails; and § 605(e)(3)(B)(i) allows courts to grant reasonable temporary and final injunctions to prevent or restrain violations of the law. Plaintiff has requested an award of statutory damages against each in the amount of $10,000; additional damages in the amount of $50,000; attorneys’ fees equal to one third of the recovery or $1,500; pre- and post-judgment interest; and a permanent injunction enjoining any future exhibition of unauthorized or unlicensed programs in violation of § 605. Dkt. 11 at 11.

Plaintiff is entitled to recover the following awards against defendants, jointly and severally, plus post-judgment interest at the rate of .11 percent annually from the date of this judgment until it is paid. Pre-judgment interest will not be paid. The court finds that $5,000 is appropriate to compensate for the violation of § 605. Plaintiff has produced evidence that the Gold Coast Lounge could hold approximately 100 people. Dkt. 1, Ex. A at 30-31. Plaintiff could have charged an establishment of this size $1,100 to exhibit the Event. Dkt. 1, Ex. A at 33. An additional $3,900 is reasonable for statutory damages to deter future violations. Further, $10,000 will be awarded for defendants’ willful actions. Attorneys’ fees will be awarded in the amount of $1,500, because the court finds that six hours of work at a blended rate of $250 per hour is reasonable. Dkt. 11, Ex. B at 6. Finally, the court finds that plaintiff’s request for an injunction pursuant to § 605(e)(3)(B)(i) is reasonable to “prevent or restrain violations” of §605(a) and grants it.

Update October 12, 2014 – the ECSC has released their official Bout Results and these include an Indefinite Suspension for Ford noting a “fractured right forearm“.

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Following the World Series of Fighting’s card in Edmonton on October 11, 2014 it was widely reported that Ryan Ford, a fighter not unfamiliar with controversy, entered the bout with a pre-existing fractured arm.  Ford lost via first round rear-naked choke.

The pressing regulatory question is who, other than Ford, knew of this fracture and what consequences will these individuals face?

Ford clearly knew of the extent of the injury as evidenced by this video filmed over a week prior to the bout:

The Edmonton Combative Sports Commission, the regulatory body overseeing this event, requires pre-bout medical information to be disclosed from combatants.  If this information was hidden from the commission Ford and his handlers are in breach of their duties to the regulator.  While a fighter’s ‘the show must go on‘ attitude is understandable with their livelihood depending on it, from a regulatory perspective this cover up calls for disciplinary consequences.

The above video apparently was published prior to the bout.  If the WSOF or other licensed entities with the ECSC knew about this pre-existing injury and failed to bring it to the commissions attention the sport’s integrity requires a wide disciplinary net being cast in order to send a message of general deterrence.  Athletic Commissions exist first and foremost for combatant safety.  Any steps that threaten the integrity of this vital role must be met with strict consequences.

Fighter pay is a frequent discussion in MMA circles with much speculation about what percentage of revenues are shared with athletes.  Nova Scotia, who just hosted their first UFC event on October 4, 2014 has a law on their books mandating a minimum split to the fighters in the main event of a fight card.

Specifically, Section 58 of Nova Scotia’s Boxing Authority Regulations (which apply to MMA bouts by virtue of the definition of boxing set out in s. 2(3) of the Regulations) require that “The minimum percentage of the receipts to be paid to boxers in the main boxing match shall be not less than 10% for each boxer“.

Following the event the UFC announced that the live gate totaled $926,000.  This means that the two headliners, Rory MacDonald and Tarec Saffiedine, were each entitled to a minimum purse of $92,600 to comply with Regulation 58.  Interestingly the Nova Scotia Boxing Authority Act defines “gross gate receipts” to include “all money collected in respect of a boxing match including all television and film royalties” so the amount may be far greater than this.

I contacted the Nova Scotia Boxing Authority who, respecting provincial privacy laws, are not prepared to disclose fighter pay details so it is unclear if this regulation was complied with.

If the speculated pay of Saffiedine ($19,500/$19,500 to show/win) following his last event are accurate and are any indicator of his pay following the Halifax show there may have been a gross underpayment.

Nova Scotia ignored many of their regulations to allow the UFC host a show under the unified rules with which they are familiar.  For Saffiedine’s sake, hopefully Regulation 58 was not ignored as well.

Manitoba OIC Image

Manitoba has become the latest Canadian Province to exercise their powers under s. 83 of the Criminal Code designating a list of amateur combat sports which are legal.

Manitoba has passed Order in Council No. 00257 / 2014 which designates amateur Boxing, Karate and TaeKwonDo as legal sports in the Province.  I should note that Boxing and TaeKownDo were legal prior to this OIC designation as they are Olympic Combat Sports, however, the OIC sets out that these sports need to be regulated by a specified body.

The OIC has provided Karate Manitoba, TaeKwonDo Manitoba and the Manitoba Amateur Boxing Association the authority to regulate amateur ‘prize fights’ in their respective sports.

The full OIC can be found here: Manitoba OIC Legalizing Combat Sports

Interesting reasons for judgement were released last week by the US District Court, Southern District of New York, discussing contractual liability after a boxing bout was cancelled due to an athlete failing to pass a pre-bout drug test.

The full decision can be found here: World of Boxing v. Don King

In short Don King was found liable for breaching his contract with co-promoter World of Boxing, LLC after King’s fighter, Guillermo Jones, failed a pre bout drug test and the bout was cancelled.

In finding liability rests with King District Judge Scheindlen noted as follows

The question is which party – King or WOB – should have to shoulder these costs.  The law makes it clear that the answer is King.  As the party who promised to secure Jones’s participation, King “assumed the risk” of foreseeable events that might frustrate his ability to ake good on that promise.  Because the risk of a second positive test was foreseeable – so foreseeable, in fact, that the Agreement set out a mandatory testig provision to lessen its likelihood, King’s breach cannot be excused”

Legally this case speaks to the importance of contractual agreements clearly setting out who is liable should a bout be cancelled due to a positive PED test.  Damages have yet to be assessed and it would be equally desirable for such contracts to spell out exactly what damages the aggrieved party would be entitled to in these circumstances.

Lastly, this case is notable because it illustrates that it is reasonable for a fighter to withdraw consent to fight an opponent who is on illicit PED’s.  This withdrawal of consent can be instrumental to proving civil liability if a fighter is ever harmed at the hands of a PED using opponent.  In noting that Lebedev’s withdrawal was reasonable the Court referenced a letter from the WBA noting that-

“(Lebedev’s withdrawal) was justifiable on the basis that the WBA would not, and could not, sanction a championship bout when it was aware of Jones’ positive test as this would violate WBA rules, may cause unnecessary harm to Lebedev and would otherwise compromise the nature of the WBA world title bouts.”

In accepting that Lebedev did nothing wrong Judge Scheindlin noted “Once Jones tested positive, WOB and Lebedev were entitled to treat the entire contract as broken, because Jones’s participation (which the positive test rendered impossible) was the centerpiece of the agreement.  In other words, King’s argument that Lebedev breached the agreement necessarily fails, because the Agreement had already been breached – by King – when Lebedev withdrew.

Reasons for judgement were released last week discussing the scope of Joe Hand Promotions standing to sue parties who unlawfully acquire UFC Pay Per View products.

In last week’s case (Joe Hand Promotions, Inc. v. Roseville Moose Lodge No. 1293) the Plaintiff sued the Defendant alleging they were a commercial establishment that unlawfully intercepted UFC 157.  The Defendant brought a motion to dismiss the lawsuit arguing that they were a charitable organization, not a commercial establishment and could not be sued by Joe Hand because Joe Hand only had the right to go after commercial entities.

The Defendant relied on the Plaintiff’s Distribution Agreement with Zuffa.  The Court noted that the agreement was subject to Nevada law and that Joe Hand’s powers may not be restricted to only suing commercial establishments but all non-residential entities.  In reaching this conclusion District Judge England noted as follows:

However, even if the Court considered the Warner Declaration and were to find Defendant to be a non-commercial entity, Defendant could still not prevail at this time. As set forth in Plaintiff’s briefing, the Distributorship Agreement is governed by Nevada law. Under that state’s law, “it is well-established that a course of dealing may modify an agreement.” Wal-Go Associates v. Leon, 624 P.2d 507, 510 (Nev. 1981). Therefore, Plaintiff argues that the course of conduct between the parties to the Distributorship Agreement confirms that the intent of the parties was for the agreement to cover all non-residential use. If correct, the Distributorship Agreement would cover the exhibition of the Program at Defendant’s Lodge, whether or not Defendant is deemed to be a commercial entity. Thus, even if the Court considered the Warner Declaration, denial of Defendant’s motion is warranted.

Prince Edward Island has become the latest Canadian Province to exercise their powers under s. 83 of the Criminal Code designating a list of amateur combat sports which are legal.

On September 23, 2014 PEI passed OIC 2014-553 which designates amateur Karate, Kickboxing, Grappling, Jiu Jitsu, Wushu, Kung Fu and Aikido as being outside the scope of the Criminal Code.  Contests in these sports are allowed without any regulatory oversight with the exception of Karate and Kickboxing which need to be overseen by Karate PEI and Kickboxing PEI.

Amateur MMA remains illegal in the Province.  The OIC does not address professional combat sports and the Province continues to consider whether they will legalize professional MMA.  If they do so the Provincial commission would likely be given oversight of both professional and amateur MMA.

You can find the full OIC here: PEI Order In Council Legalizing Amateur Martial Arts

Doping Image From the UG (Image via mixedmartialarts.com)

Last year I discussed the possible Criminal and Civil consequences that combat sports competitors expose themselves to if they decide to cheat using PED’s.  In short the legal issue revolves around fraud and this can open the door to far reaching legal consequences.

Official MMA record keeper Kirik Jenness was kind enough to reprint this article on the UG (mixedmartialarts.com) and I want to thank Kirik for sharing this issue with his audience.

For those visiting this site for the first time, welcome!.  You can click here to read my archived articles discussing some of the perils of doping in the sport.

On a positive note today the UFC provided further details about their plans to introduce a comprehensive anti doping policy for their roster.  This is a step in the right direction and one that will hopefully lead to a drastic reduction of doping in MMA.