Reasons for judgement were released this week by the US District Court, N.D. California, San Jose Division, confirming that the parties involved have agreed to participate in mediation with a mutually agreed upon mediator no later than September 30, 2015.

Mediation is a routine step in civil lawsuits.  It is simply an agreement to sit down and negotiate in the presence of a mediator.  Mediators have no ability to force the parties to settle, rather they facilitate ongoing discussion in an attempt to help the parties find common ground.  Not too much should be read into this development.

The timing of the agreement to mediate is perhaps more telling.  The parties wish to put off mediation until “the case is farther advanced“.   In other words the parties want some pending motions to be first resolved such as the fight over jurisdiction (California vs Nevada) and also Zuffa’s motion to dismiss the claim.  After these matters are dealt with the parties will see where the chips are falling and perhaps have more inclination to canvass settlement.

The full reasons in this week’s case read as follows:

EDWARD J. DAVILA, District Judge.

Counsel report that they have met and conferred regarding ADR and have reached the following stipulation pursuant to Civil L.R. 16-8 and ADR L.R. 3-5:

WHEREAS, the parties agree to participate in mediation with a mutually agreed upon mediator;

WHEREAS, the parties believe that mediation would be premature at this stage of the case in light of the pending and anticipated motions and other factors;

WHEREAS, the parties believe that meeting and conferring on the appropriate date for mediation would be more productive when the case is farther advanced, and agree to meet and confer no later than September 30, 2015 to agree upon an appropriate schedule for mediation;

ACCORDINGLY, IT IS HEREBY STIPULATED by and between Plaintiffs Cung Le, Nathan Quarry, Jon Fitch, Luis Vazquez, Dennis Hallman, Brandon Vera, Pablo Garza, Gabe Ruediger, Mac Danzig, Kyle Kingsbury, and Darren Uyenoyama and Defendant Zuffa, LLC d/b/a Ultimate Fighting Championship and UFC, through their respective attorneys, subject to the Court’s approval, that these parties will participate in mediation with a mutually agreed upon mediator at a time to be agreed upon not later than September 30, 2015 in satisfaction of the parties’ ADR obligations in this case pursuant to Civil L.R. 16-8 and ADR L.R. 3-5.

Pursuant to L.R. 5.1(i)(3), I attest that all other signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing.

[PROPOSED] ORDER

[X] The parties’ stipulation is adopted and IT IS SO ORDERED.

On May 11 the Nevada Judiciary will resolve the ongoing legal challenge between Wandelei Silva and the NSAC with respect to the boundaries of their out of competition drug testing powers.  MMAJunkie’s John Morgan attended this weeks judicial review and recorded the entirety of the parties submissions.  For those interested here is the video-

 

 

In the latest judicial damage assessment following UFC PPV piracy, reasons for judgement were released by the US District Court, SD Ohio Eastern Division,  assessing damages of $3,750 following the commercial piracy of UFC 160.

In the recent case (Joe Hand Promotions , Inc. v. Buckman) the Defendants operated a sports bar which displayed UFC 160 without first purchasing s commercial sub-licence from the Plaintiff allowing them to do so.  The Plaintiff sued seeking $75,000 in damages.  Magistrate Judge Terence Kemp found that a more appropriate assessment was $1,250 (the cost of purchasing the sub licence) and then a tripling of this amount for deterrent purposes.  The Court provided the following reasons:

According to Mr. Hand’s affidavit, based on the maximum capacity of 150 people, JHP would have charged defendants $1,250 for a license to broadcast the program. JHP has not provided any evidence of the cost of monitoring and investigating its broadcast rights specific to this case, although Mr. Hand does state generally in his affidavit that JHP retains auditors and law enforcement personnel at great expense. Given the state of the record, the Court can conclude only that JHP lost $1,250.00 as a result of defendants’ conduct. Consequently, the Court will recommend an award of statutory damages in that amount for defendants’ violation of § 605….

The Court finds the reasoning of Fazio persuasive and will recommend that it be applied here. As the court stated in that case,

… the deterrence of future violations is one of the objectives of the statute. Merely requiring defendants to pay the price they originally would have been charged to obtain legal authorization to display the Program does nothing to accomplish this objective of the statute. In other words “[t]here would be no incentive to cease the violation if the penalty were merely the amount that should have been paid.” Entertainmnet by J & J, Inc. v. Nina’s Restaurant and Catering, 2002 WL 1000286, at *3 (S.D.N.Y. May 9, 2002)

Plaintiff has not adduced sufficient evidence to support its request of enhanced statutory damages beyond this amount. While Plaintiff argues that Defendants’ violation of Section 605(a) was willful and for commercial or financial gain, the evidence provided by Plaintiff fails to support a conclusion that an award of this magnitude is justified in this case…. While plaintiff is entitled to some enhanced damages given the allegations in the Complaint and the low probability that a commercial establishment could intercept the Program merely by chance, see Al-Waha, 219 F.Supp.2d 769, Plaintiff has not presented any allegations or evidence showing that Defendants’ conduct was egregious enough to justify a more significant damages award, let alone an award of damages at or near the maximum allowed for a violation of Section 605.

Fazio, 2012 WL 1036134, at *3, *4. The above scenario describes the case here. Consequently, the Court concludes that an enhanced award of $2,500 would address the concerns raised by JHP while recognizing the limited evidence it provided as to defendants’ willful conduct.

Further, the Court finds the circumstances of this case easily distinguishable from those in RPM Management, 2011 WL 5389425, which resulted in another Judge from this Court awarding JHP $25,000 in damages based on the defendant’s alleged willful conduct. The defendants in that case were found to have committed multiple violations. No similar evidence has been presented in this case. Consequently, the Court will recommend a total damages award of $3,750, or three times the amount defendants would have paid for the right to broadcast the program.

It is a not so well kept secret that performance enhancing drug testing is all but non-existent in amateur mixed martial arts competitions.  While addressing doping at the elite professional level is important, it is equally valuable to weed out a culture of cheating at the entry level to meaningfully address a potentially dangerous problem.

To this end the International Mixed Martial Arts Federation, a body looking to become a worldwide governing body for the growth and development of the sport, have announced their anti-doping policy.  In short the IMMAF have adopted WADA prohibited list and will start enforcing this anti doping program in May, 2015 for events associated with them.

These standards will be in force for the 2015 IMMAF World Championships of Amateur MMA scheduled to take place in July in Las Vegas.

I inquired whether the IMMAF actually intends to follow through with testing and how the program will be funded.  They, along with an IMMAF board member from the UK responded as follows:

IMMAF Anti Doping Policy Tweets

In the latest addition to this site’s archived cases addressing Pay Per View Piracy, reasons for judgement were released this month ordering a Defendant to pay just over $14,500 in damages and costs following the commercial piracy of UFC 150.

In the recent case (Joe Hand Promotions , Inc v. KJ’s Wings and Ale, LLC) the Defendant operated a commercial establishment and displayed UFC 150 without paying the licence fee to the Plaintiff allowing them to do so.  The Plaintiff sued for damages and obtained default judgement with statutory damages of $3,750, enhanced damages of $7,500 plus costs and attorney fees for a total judgement of $14,583.75.  In reaching this assessment District Judge Michelle Childs provided the following reasons:

According to the record, Plaintiff had the exclusive nationwide commercial television distribution rights to “Ultimate Fighting Championship 150: Benson Henderson vs. Frankie Edgar” (the “Program”). (ECF No. 1 at 3.) The minimum rate charged by Plaintiff for the right to show the Program was seven hundred fifty dollars ($750.00). (ECF No. 11-3.)

Plaintiff’s private investigator (“PI”) entered Scooter’s Lounge (“Scooter’s”), located 1631 JA Cochran Boulevard, Chester, SC, on August 11, 2012, at approximately 9:51 p.m. (ECF No. 11-4 at 1.) The PI did not pay a cover charge to enter the establishment. (Id.) While in Scooter’s, the PI observed five televisions displaying one of the fights on the card for the Program. (Id.) There were between seven and twelve patrons in Scooter’s during the PI’s investigation. (Id. at 3.) The PI left Scooter’s at approximately 11:40 p.m. (Id.)..

Given that there were no more than twelve patrons in the establishment during the airing of the Program, an award based upon the number of people in the establishment would not provide a sufficient deterrent from future violations by Defendants. However, the court finds that an award of five times the license fee Defendants should have paid, coupled with enhanced damages and attorneys’ fees and costs, will provide a sufficient deterrent for Defendants. Therefore, the court awards Plaintiff statutory damages in the amount of three thousand seven hundred fifty dollars ($3,750.00)…

While the court finds that Defendants’ actions were willful and intentional violations of the Federal Communications Act, the maximum statutory enhancement is not warranted in this case. Therefore, the court awards enhanced damages in the amount of seven thousand five hundred dollars ($7,500.00) to Plaintiff.

The Federal Communications Act requires the court to award “full costs, including reasonable attorneys’ fees, to an aggrieved party who prevails.” 47 U.S.C. § 605(e)(3)(B). Plaintiff is an aggrieved party, and Plaintiff has prevailed in this suit. Plaintiff has supported its request for costs and attorneys’ fees by producing bills and an affidavit detailing the costs of litigation. (ECF No. 11-6.) Plaintiff has also provided the affidavit of an independent attorney attesting to the appropriateness of Plaintiff’s attorney’s fee. (ECF No. 11-7.) The Court finds that Plaintiff has costs one thousand one hundred fifty five dollars ($1,155.00), and that Plaintiff is entitled to attorneys’ fees in the amount of two thousand one hundred seventy eight and 75/100 dollars ($2,178.75).

Adding to this site’s archived posts addressing safety studies in combative sports, an importation study was published in the Annals of Neurology this month finding that traumatic brain injury likely causes accelerated atrophy “aging” the brain by an average of over four years.

In the recent study conducted by James H. Cole, PhD, Robert Leech, PhD, and David J. Sharp, PhD, the researchers were able to accurately predict brain age based on MRI data.  The same brain age calculating methods were then applied to MRI’s from patients who suffered traumatic brain injuries.  The data set included 99 patients with persistent neurological problems after suffering a traumatic brain injury.  The cause of injury included a variety of mechanisms including sports injuries, vehicle collisions, assaults among others.

The study found, regardless of the cause of injury, the patients who suffered a traumatic brain injury had accelerated brain atrophy making their brains appear 4.66 years older than their actual age.  The severity of brain injury correlated to the severity of ‘aging’ with more profound brain injuries leading to greater brain atrophy.

Figure 1 TBI Aging StudyFigure 4 TBI Aging Study

The full study is valuable for anyone interested in health and safety issues in combat sports and can be found here – Prediction of Brain Age Suggests Accelerated Atrophy after TBI

The UFC’s jurisdiction hopping business model exposes the promotion to a host of different regulatory requirements.  The peculiarities in different jurisdictions create a variety of legal issues stakeholders must grapple with, for example the requirement to pay a headliner at least 10% of event receipts in Nova Scotia or Quebec’s bizzare rules of ‘mixed boxing’ that seem to be happily ignored for the UFC.

With UFC 186 scheduled to take place in Montreal later this month I had a quick refresher of Quebec’s Regulation Respecting Combat Sports.  Of interest for all fighters under a long term contract, Quebec imposes a host of legal requirements for such contracts to be valid.  Since the UFC has much of its roster under long term deals, the relevant protections set out in s. 169 and 169.1 come into play.  These read as follows with the most interesting provisions reproduced in bold:

169.  Any contract that binds a contestant and an organizer for more than 1 combat sports event shall not run for more than 2 years. The organizer shall send a copy of such contract to the board within 10 days following its signing along with any amendment to the contract, not later than before the holding of the sports event.
169.1.  A contract binding an organizer and a contestant for more than one sports event shall provide for or stipulate, in particular,
  (1)    the duration of the contract and the number of scheduled bouts;
  (2)    the amount of the purse for each bout;
  (3)    the renegotiation of the contestant’s remuneration if the contestant takes part in a championship bout before the end of his contract; the renegotiation will involve, in particular, the contestant’s remuneration and the expenses relating to sparring partners and training camps;
  (4)    that the organizer may not charge more than 10% of the contestant’s purse if he provides him with the services of a trainer;
  (5)    that the organizer undertakes to pay all the contestant’s travel expenses if a bout is to take place outside Québec;
  (6)    except if the contract is cancelled, that the contestant undertakes not to sign a contract with another organizer before the expiry date of the contract;
  (7)    that the organizer undertakes not to transfer his rights to a third person, unless the contestant agrees to the transfer and benefits from at least 80% of the difference between the consideration paid for the transfer of the rights for each bout and the amount of the purse to which the contestant is entitled for each bout; and
  (8)    the cancellation of the contract
  (a)      if the organizer’s or contestant’s licence is cancelled or suspended for the unexpired duration of the contract; or
  (b)      if the contestant is declared unfit to fight following a medical examination for the unexpired duration of the contract.
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Assuming the language from Eddie Alvarez’s 2012 Contract is used routinely, UFC contracts contain specific language requiring fighters to ‘execute and comply’ with the requirements of Bout Agreements from the jurisdiction governing their bout.  The requirement  includes an agreement to comply with “any other contract required to be executed by law” (ie – in Quebec the above).  More importantly, the contracts state “to the extent of any conflict between (a UFC Contract) and a Bout Agreement with respect to a Bout, the Bout Agreement shall control“.  In other words; the above statutory requirements may trump any contradictory terms of a UFC Contract in Quebec.

So how can any offending terms be reconciled?  UFC Contracts deal with this as well reading that if there are any offending terms in the contract in any circumstance, and if these offending provisions cannot be modified in a way to make them legal, valid and enforceable then “the offending provision…shall be considered deleted“.

While its fun to make light of Quebec turning a blind eye to their bizarre ‘mixed boxing’ rules to accommodate the UFC, the regulations regarding contractual requirements would be no laughing matter if a fighter was displeased and took advantage of Quebec’s legal requirements to challenge contracts that don’t include all of the above protections.

Update April 22, 2015 – A full copy of the appeal decision can be found here – Appeal Decision Bellator Jackson Injunction

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Update April 21, 2015 – Today the temporary injunction was apparently overturned on appeal.  Interestingly, it sounds like a temporary injunction remains in place and only the injunction relating to UFC 186 was set aside.  Review of Judge Suter’s reasons makes it clear that Jackson was “enjoined and restrained from… fighting for any MMA promoter” and also specifically enjoined from competing at UFC 186.  From Bellator’s statement released today which I reproduce below it sounds like the general injunction remains in place

We are gratified that the appellate division did not disturb part of the chancery division order enjoining Jackson, but are disappointed that they reversed the injunction as to the April 25 fight,

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Last month I had the opportunity to review Quinton Jackson’s Bellator Contract which became public record due to the litigation between Jackson and Bellator.  In short it appears Bellator may have breached the contract and not cured the breach within the allotted time frame allowing Jackson to terminate the contract.  Matching clauses, however, appear to survive the termination allowing Bellator to keep Jackson with their promotion if they so desire.

Today, Judge Karen Suter of the Superior Court of New Jersey, Chancery Division, handed down her ruling granting a preliminary injunction keeping Jackson from competing in UFC 186 scheduled later this month in Montreal.

In a nutshell today’s ruling means Jackson will need to hammer out a new deal with Bellator or stay sidelined indefinitely until the legal proceedings run their course in full at which time the winning side will be entitled to damages from the losing litigant for breach of contract.

You can read Judge Suter’s reasons here – Bellator v. Jackson Reasons for Injunction

Rapid Extreme Weight Cuts have taken their toll on the health of many combat sport practitioners and may even play a role in fatalities in combat sports such as boxing and MMA.

Regulators and others involved in the industry have slowly started to take notice with calls for reform with perhaps the most viable suggestion being that athletes be required to pass a hydration test when making weight.

A new study has now been published in the International Journal of Sport Nutrition and Exercise Metabolism documenting more harms of the practice.  The study reviews biochemical and hormonal responses between MMA practitioners who undertake rapid cuts versus those that do not.  In short the study concludes “The practice of rapid weight loss showed a negative impact on energy availability and increased both muscle damage markers and catabolic expression in MMA fighters.”

An abstract of the recent study,titled Rapid Weight Loss Elicits Harmful Biochemical and Hormonal Responses in Mixed Martial Arts Athletes, can be found here.

Zuffa has been fighting two battles in New York for the past several years hoping the State would reverse their ban on professional MMA.

The first being a lawsuit alleging the ban is unconstitutional.  The second being lobbying efforts to overturn the ban.  While the lobbying efforts appear to finally be paying off, the court battle was dismissed today in Federal Court.

The lawsuit had lived through a number of challenges with the last surviving arguments being that New York’s flip flopping on the legal implications of the challenged legislation coupled with the State’s ever changing definition of ‘professional‘ contests created a sufficiently vague track record such that the legislation was unconstitutional.

These last arguments were dismissed today.  The Court did not address the merits of these claims, rather the Court dismissed the lawsuit on the technical grounds that the Plaintiff’s did not suffer any harm and therefore had no standing to bring the action.

A full copy of Judge Kimba Woods ruling can be found here: Zuffa New York Lawsuit Dismissal