Earlier this year I addressed why the Nevada State Athletic Commission is on thin ice to discipline Wanderlei Silva for ducking an out of competition drug test.  In short it comes down to the fact that he presently is not licensed nor applying for a licence with the Commission.

Today, it was revealed that Silva is indeed challenging the Commissions authority to punish him.

I have obtained a copy of Silva’s Motion to Dismiss Nevada’s Complaint for Disciplinary Action thanks to Yahoo Sports writer Kevin Iole.  For those interested here it is in full: 

Wanderlei Silva Mtn to Dismiss with ROC’s 08-15-2014

Silva’s arguments largely mirror the arguments previously advanced here and conclude that “the NSAC lacks the jurisdiction to seek disciplinary action against Mr. Silva, and any attempt to do so, clearly exceeds the NSAC’s limited statutory jurisdiction“.

The motion goes on to cite Andrews v. Nevada State Board of Cosmotology which confirms that entities such as the NSAC are creatures of statutory power that have “no general or common law powers, but only such powers as have been conferred by law expressly or by implication“.

Silva’s motion is on strong legal footing.  If and when he ever decides to apply of a licence in Nevada he will have to answer for his actions.  Until that time the NSAC does not enjoy the power necessary to take action.

 

Reasons for judgement were released this week by the United States District Court, S.C. California, upholding a modest damage assessment in a case of piracy of a PPV product.  

In this week’s case (Joe Hand Promotions v. Khan) the Defendant operated a commercial establishment and was sued for airing a PPV program without paying the commercial licencing fees.  He was found liable and ordred to pay $750 in conversion damages and a further $1,000 in statutory damages under 47 U.S.C. § 605(e) (e)(3)(c)(i)(II).

Displeased with this assessment the Plaintiff sought to alter the judgement.  The motion was denied with the Court noting an absence of any aggravating factors justifying a departure from the assessment.  In upholding the assessment the Court proved the following reasons:

Pending before the Court is Plaintiff Joe Hand Promotions, Inc.’s Motion to Alter Judgment. Plaintiff argues that the Court erred in awarding $1,750 in damages, comprised of $750.00 in conversion damages and the statutory minimum of $1,000 under 47 U.S.C. § 605(e) (e)(3)(c)(i)(II). Plaintiff contends that enhanced statutory damages should have also been awarded.

The question of whether to award enhanced damages is within the court’s discretion. See Kingvision Pay Per View, LTD v. Ortega, 2002 WL 31855367, *2 (N.D.Cal. 2002) (reasoning that in evaluating whether to award enhanced damages, courts can consider factors such as repeated violations, the intent to profit and actual profit derived from the violations). Here, Plaintiff contends enhanced damages are warranted for two reasons.

First, Plaintiff relies on other cases that awarded enhanced damages. But those cases are factually distinguishable. In Kingvision v. Lake Alice Bar, 168 F.3d 347(9th Cir. 1999), the $80,400 award was based on the bar’s “repeated willful violations.” Id. at 350. Therefore, a higher damage award was warranted to deter defendant from future violations. In contrast, here Defendant was a first time offender, and there is no evidence suggesting a higher damage award is necessary to deter Defendant from committing future violations. Moreover, in Kingvision, the Ninth Circuit remanded the case “so that both sides [could] be heard on the appropriate amount of any reduction in the judgment.” Id. at 352. The remand suggests that the damage award was too high.

Plaintiff also cites J & J Sports Productions Inc. v. Olivares, 2011 WL 587466 (E.D.Cal. Feb 9, 2011), where more than 60 patrons were viewing the program. In contrast, Defendant’s establishment had far fewer patrons during the program. Additionally, because Defendant did not charge an entrance fee or advertise the program, there is no evidence suggesting that Defendant intended to profit and actually profited from the violation.

Next, Plaintiff argues that the award focused too heavily on specific deterrence at the expense of general deterrence. But as explained in the order, under the circumstances of this case, the Court is mindful that a larger award might put Defendant out of business. See Lake Alice Bar, 168 F.3d at 350 (reasoning that, “[d]epending on the circumstances, a low five figure judgment may be a stiff fine that deters, while a high five figure judgment puts a bar out of business”). Therefore, the Court finds that the damage award of $1,750 is reasonable.

For theses reasons, Plaintiff’s motion to alter judgment is DENIED

Is This Legal? A Quick Review

Posted: August 20, 2014 in Uncategorized

Is this legal image

I have finally had a chance to read Is this Legal, a book written by UFC co-founder Art Davie.  The book accounts “how Davie started the Ultimate Fighting Championship, and launched mixed martial arts” in the US.

The 260 page book is a great read for any fan of combat sports. I was 16 when UFC 1 was broadcast on PPV and have been following the sport for over twenty years.   I thought I knew a lot about the history of the sport but Is This Legal was quick to correct this view.  Just as a first grappling lesson quickly teaches strikers that they have a lot to learn about fighting, Is This Legal teaches combat sports fans that they have a lot to learn about the true history of UFC 1.  Well done Art.

 

 

In my ongoing efforts to highlight legal action taken against those accused of unlawfully accessing MMA Pay Per View products, reasons for judgement were released this week in two separate prosecutions addressing such claims.  Both resulted in modest damage assessments in the face of a lack of evidence of commercial advantage by the Defendants. 

In the first case (Joe Hand Promotions v. Plummer) the Defendant pub owner was sued for unlawfully exhibiting UFC 142 without purchasing a commercial exhibition licence.  The Defendant failed to respond to the suit and default judgement was obtained.  Joe Hand sought maximum statutory damages of $10,000 along with enhanced damages of a further $100,000.  The Court found damages in a far more modest range were appropriate given “the small size of the crowd viewing the Program, and the fact that Defendant is not a repeat offender

The Court awarded statutory damages of $3,000, attorney fees of $3,373 and outright dismissed the claim for enhanced damages.

In the second case (Joe Hand Promotions v. Lorenzana) the Defendant was sued for unlawfully exhibiting UFC 155 in a commercial establishment without paying for commercial licencing fees.  Again default judgment was obtained and the Plaintiff sought significant statutory and enhanced damages.  In finding total damages of just over $2,000 were more appropriate the Court provided the following reasons:

As to Plaintiff’s request under § 553(c)(3)(B), enhanced damages of no more than $50,000 may be warranted if the court finds “that the violation was committed willfully and for purposes of commercial advantage or private financial gain.” The Ninth Circuit has not set forth controlling factors for the determination of when enhanced damages are appropriate in this context, but various factors specific to this unique line of cases have been considered by district courts. These include the “use of cover charge, increase in food price during programming, presence of advertisement, number of patrons, number of televisions used, and impact of the offender’s conduct on the claimant.” Concepcion, 2011 U.S. Dist. LEXIS 60607, at *10. Enhanced damages have also been awarded when the defendant has violated sections 605 or 553 on previous occasions. See J & J Sports Prods., Inc. v. Paniagua, No. 10-CV-05141-LHK, 2011 U.S. Dist. LEXIS 33940, at *5-6, 2011 WL 996257 (N.D. Cal. Mar 21, 2011).

In this case, Defendant did not charge a cover to patrons nor is there any evidence that Defendant increased prices or required food or drink purchases during the Event. The relevant numbers are similarly unimpressive for the purpose of enhanced damages; two television sets displayed the Event to 8 people. None of these facts suggest that commercial or private financial gain was Defendant’s motivation in displaying the Event.[3] In fact, what Tate described is more likely than not just a normal evening at the Castroville Inn.[4]

Plaintiff points out that Defendant was found to have violated § 605 in another action, J & J Sports Productions, Inc. v. Lorenzana, Case No. 5:13-cv-05554 BLF, and provides a supplemental declaration in support of its request for enhanced damages. But while other courts have awarded enhanced damages under similar circumstances, this court is not persuaded that a significant “repeat offender” enhancement is appropriate here. Defendant’s conduct in Plaintiff’s two actions is more accurately described as “simultaneous offense” — the two illegal interceptions occurred in the same month (December, 2012), the two lawsuits were filed in the same month (December, 2013), and Defendant was served with process for both lawsuits on the same date and at the same time (February 10, 2014, at 6:40 p.m.). This is therefore not a case where the same defendant, having been previously notified of impermissible activity, disregards that notice and offends again. Moreover, Defendant’s conduct here had much less impact on Plaintiff than the conduct described in the other case, which involved a well-known boxer and an event displayed to 50 people at the Castroville Inn. Accordingly, the court finds that Plaintiff is entitled to $950 in enhanced damages — the value of the commercial license to air the program. This amount properly accounts for the broadcast’s minimal impact on Plaintiff.

Last week a British Columbia jury awarded former UFC fighter Jason Day approximately $340,000 following what turned out to be a career ending motor vehicle collision.

Day was struck on his bicycle by an SUV and sustained chronic soft tissue injuries to his knees and ankles.  While the injuries did not prevent him from pursuing many endeavors they proved too much for the high physical toll of MMA and he never fought again.    John Cameron, Day’s lawyer, confirmed that the jury awarded $50,000 for ‘diminished earning capacity’ which reflected the financial realities of the lost career to Day.

The jury was far more robust in their non-pecuniary assessment (money for pain and suffering and loss of enjoyment of life) and assessed damages for this loss at $325,000, a figure near the high end of what can be awarded in Canada, likely in an acknowledgement of the great loss of a sport Day dedicated many years of his life to.  The global award was then reduced 10% to account for a finding of contributory negligence on the part of Day.

It is unclear if ICBC (the insurer for the at fault motorist) is going to appeal.  The non-pecuniary award is vulnerable to appeal as it is close to Canada’s ‘rough upper limit’ which is reserved typically for catastrophic injuries and currently is at about $360K.

Hopefully there is no appeal and the insurer respects the jury’s assessment for the non-pecuniary loss of an MMA career.

UpdateAugust, 6, 2014 – Bleacher Report, who initially broke this story, has obtained correspondence between Sonnen’s lawyers and the Nevada Commission.

The legal arguments advanced largely mirror the below arguments and additionally point to recorded comments of NSAC Chairman Francisco Aguilar, where he agreed that Metamoris “is not subject” to the ban imposed on Sonnen.  Despite this the NSAC is reportedly not backing down and neither is Sonnen.

Here are copies of Sonnen’s lawyer’s letters to the NSAC

chairman-aguiilar-letter-08-01-2014

chairman-aguiilar-follow-up-letter-08-04-2014

It appears a game of legal chicken is going to take place.  If Sonnen competes and fines are issued, the Courts in Nevada will likely be asked to weigh in on this and ultimately decide who is right in this battle of wills.

_____________________________________________________________

Today it was rumored that the Nevada State Athletic Commission threatened to fine ‘retired’ MMA athlete Chael Sonnen $250,000 “per failed drug test violation if he competes at Metamoris“.  The problem?  They likely don’t have the right to do so.

By way of brief background, Sonnen was handed a two year suspension by the Nevada commission following multiple failed drug tests.  They could have fined him for his transgressions at that time but did not.  Instead they waived fines in lieu of an agreement that Sonnen would cooperate with the NSAC in addressing their PED policies and further secured his agreement that he would not ‘fight‘ in any other jurisdiction during the time of his suspension.

When Nevada realized that Sonnen was scheduled to compete at Metamoris , a professional grappling event hosted in California, it appears some considered this fighting triggering a breach of the secured agreement.  The problem with this, however, is that Metamoris likely cannot be considered a ‘fight’ under Nevada law.

Nevada was well aware they could not ban Sonnen from fighting in another jurisdiction.  Appreciating this, the NSAC was very careful in the wording of their penalty which was phrased as follows:

we will solicit Mr. Sonnen’s agreement that he will not fight in any other jurisdiction for that same period of time.”  Sonnen agreed to these terms.  The only question is whether competing in Metamoris can equal a ‘fight’ as defined in Nevada law thereby breaking this agreement allowing Nevada to reconsider their penalties.

The commission did not bother defining what they meant by fight.  The terns likely would be interpreted synonymously with the types of events the Nevada commission has the authority to regulate.  Under Nevada’s combat sports regulations the term ‘fight’ is not defined, instead the phrase ‘unarmed combat’ is used and is defined as follows:

boxing or any form of competition in which a blow is usually struck which may reasonably be expected to inflict injury.

The key for a non boxing event being captured by this definition is the word ‘blow’ which would be synonymous with strikes.  It is hard to see how Sonnen’s agreement could be violated by his participation in a grappling event which does not allow striking.

Lastly, there is a legal principle known as Contra Proferentem which basically means that any ambiguity in a contract is to be interpreted against the person that drafted the ambiguous phrase.  In the case of Sonnen, the stipulation that he not ‘fight’ in another jurisdiction was a term agreed to by Sonnen in essence creating a verbal contract.  The NSAC selected this term and failed to define it at the hearing.  The Commission should not be given the benefit of a broad interpretation of the term after the fact and the contra proferentum principle seeks to prevent such a result.

The Nevada commission, while perhaps not pleased with Sonnen’s intent to compete in a high profile event, in all likelihood lacks the power to reopen this matter and hit Sonnen with this threatened fine.

Included in the 2014 Association of Boxing Commission Annual Conference Documents were lists setting out the volume of sanctioned amateur and professional events by various State, Tribal, Provincial and Municipal Athletic Commissions in the US and Canada.

The busiest commission one again is California overseeing 163 events in 2013.  Second is Texas with 94 and Ohio comes in third with 53 events.

In Canada, Alberta, BC and Quebec were the busiest jurisdictions hosting the greatest number of sanctioned MMA events.

Overall sanctioned events dropped to a total of 1,394 which is a modest decrease for 2012 totals which reached $1,423

The full chart can be found here:

Photo Sanctioned MMA Events by AC one of two

MMA Events Sanctioned by AC two of two

 

In my effort to create a database of Combat Sports prosecutions pursuant to Canada’s Criminal Code, I have obtained the full transcript of the sentencing proceedings from Saskatchewan’s Ministry of Justice in the case of HMTQ v. Crowthers and Daku.

By way of backgound, Patrick Crowthers and Derek Daku of Saskatchewan’s Prestige Fight Club have the dubious honour of being the first to be successfully prosecuted for hosting an illegal ‘prizefight’ since section 83 of Canada’s Criminal Code was overhauled by Bill S-209.  In short both parties plead guilty to the offence and joint submissions (ie a plea bargain) were made which the Court accepted.  The court’s sentence was a conditional discharge.

For those interested Judge Kovatch’s reasons can be found here: HMTQ v. Crowthers and Daku

For anyone interested I am happy to provide a copy of the full certified transcript which includes submissions from counsel.

The UFC’s Matt Brown failed to make weight today ahead of UFC on Fox 12.  He weighed in at 172.5 pounds, 1.5 pounds above the welterweight limit.  Under California rules Brown was allowed a further hour to try and shed the weight, however, due to a reported ‘miscommunication’ this did not happen.  The details of this miscommunication are worth scrutinizing and create a teachable moment when it comes to regulation of rapid extreme weight cutting in MMA.

In short, after coming in over weight, Fox Sports reports that the California State Athletic Commission’s doctor advised Brown “that he should not continue to cut weight“.  Sensibly, Brown followed this advice and began to rehydrate.  Shortly after this, Andy Foster, the CSAC’s executive officer, told Brown he was allowed a further hour to try and make weight but Brown elected not to do so as his rehydration took him to the point of no return.

When addressing this turn of events Foster is quoted as saying “There’s a difference between advisement from a doctor and a directive by a doctor…We were just looking after his health and safety, but I was going to let him on [the scale again],”

How can ignoring a Commission’s own doctor’s advice be compatible with looking after fighter health and safety?  Worse yet, Foster seems to suggest that Brown should be forgiven for his part in this miscommunication because he was “foggy” from his rapid extreme weight cutting. While Foster is correct that Brown may not bear any fault for this, the comment misses the larger point that fogginess from dehydration is clearly a sign of health impairment and one where feedback from the Commission’s own physician is warranted.

Given the ongoing harm documented by rapid extreme weight cut practices and a Commissions duty to look after fighter safety, the above illustrates exactly what an Athletic Commission executive officer should not do in these circumstances.  Brown, on the other hand, should be applauded for listening to doctor’s advice, even if it fell short of a ‘directive‘.

In the latest chapter of ongoing anti piracy litigation of UFC Pay Per View products, reasons for judgement were released this week by the US District Court, ED Missouri, Eastern Division, assessing damages in default proceedings following alleged piracy of UFC 128 by a commercial establishment.

In this week’s case (Joe Hand Promotions Inc. v. Game on Bar and Grill) the Plaintiff, who enjoyed commercial distribution rights to UFC 128, obtained default judgement agaisnt the Defendant with allegations that they unlawfully displayed the event without purchasing a commercial licence.  Default judgement was obtained with a violation of 47 U.S.C. § 605 and  47 U.S.C. § 553.

Damages of $4,000 for each count were assessed in addition to $2,500 in attorney’s fees and $460 in costs.

It is noteworthy that the plaintiff was seeking damages of $170,000.  In finding the above more modest figure being appropriate the Court provided the following reasons:

Plaintiff has requested the maximum statutory damages available under each statute and argues that an award of enhanced damages is appropriate here because Defendants acted willfully and for purposes of commercial advantage. Plaintiff further argues that awarding the statutory maximum will serve as a deterrent to similar action by other commercial establishments. Plaintiff does not allege, however, the other ground commonly cited in support of maximal damage award: that Defendant has repeatedly violated these statutes. See 47 U.S.C. §§ 553(c)(3)(B) & 605(e)(3)(C)(ii).

Although courts in this district have in some instances granted the maximum amount of enhanced statutory damages to aggrieved parties under §§ 605 and 553, more modest awards are generally found. Compare Joe Hand Promotions, Inc. v. TL Prods., LLC, Nos. 4:09CV503MLM, 4:09CV1633CAS, 2010 WL 2428031, at *2 (E.D. Mo. June 10, 2010) (finding “knowing violation” and awarding enhanced statutory damages under 47 U.S.C. § 605 of $100,000 and $50,000 under 47 U.S.C. § 553)with Joe Hand Promotions, Inc. v. Thompson, No. 4:11CV1740CAS, 2013 WL 466278, at *3 (E.D. Mo. Feb. 7, 2013) (awarding $13,000 in statutory damages for a willful violation of 47 U.S.C. § 605); J & J Sports Prods., Inc. v. Sirkco, LLC, No. 4:12CV763CDP, 2013 WL 363355, at *2 (E.D. Mo. Jan. 30, 2013) (awarding $3,000 in statutory damages for a willful violation of 47 U.S.C. § 605); J & J Sports Prods., Inc. v. Diamond Kings, LLC, No. 4:12CV00764AGF, 2012 WL 5330983, at *2 (E.D. Mo. Oct. 29, 2012) (awarding $3,000 in statutory damages for a willful violation of 47 U.S.C. § 605); Home Box Office v. Carlim, Inc., 838 F. Supp. 432, 436 (E.D. Mo. 1993) (awarding a total of $3,000 in statutory damages, consisting of $2,000 pursuant to 47 U.S.C. § 553(c)(3)(A) & (c)(3)(B), and $1,000 pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II)).

Having considered the authorities Plaintiff presents and other applicable cases from this jurisdiction, and the fact that Plaintiff was required to hire auditors and investigators, the Court finds that Defendant acted willfully and that an award of $4,000 per violation under each of the statutes is an appropriate penalty and deterrent here. See, e.g., Sirkco, LLC, 2013 WL 363355, at *2 (awarding $3,000 in statutory damages).

Plaintiff also seeks attorney’s fees of $2,500, $460 in costs, and post-judgment interest. Both statutes authorize the recovery of attorney’s fees and costs and the Court finds the documentation Plaintiff submitted to support its requests for attorney’s fees and costs sufficient and the amount of requested fees and costs reasonable. See 47 U.S.C. §§ 605(e)(3)(B)(iii) and 553(c)(2)(C). In addition, Plaintiff is entitled to post-judgment interest at the rate set by federal law.