Reasons for judgement were released this week by the US District Court, D. Arizona, ordering the owners of a commercial establishment to pay $9,000 for piracy of UFC 148.

In this week’s case (Joe Hand Promotions, Inc. v. Chileen) the Defendants displayed UFC 148 at their restaurant without paying the commercial sub licencing fee.  The Plaintiff sought $39,000 in statutory damages.  The Court granted summary judgement to the Plaintiff and awarded damages totaling $9,000.  In arriving at this figure District Judge Paul Rosenblatt provided the following reasons:

The plaintiff’s investigator, Gary W. Turner, states the following facts in his affidavit that are relevant to the issue of § 605 damages: that he spent twenty-three minutes in the defendants’ establishment on the evening of July 7, 2012, that there were approximately forty-five people in the establishment, that the establishment had the capacity to hold between 350-400 people, that the only televisions were located in a separate bar area and there were three televisions in that area, one of which he estimated to have a 48″ screen and two smaller sets, that all of the televisions were showing the UFC 148 telecast, that there were approximately twenty people in the bar area, and that the establishment had a satellite dish on the roof. While the investigator says nothing about having to pay any cover charge or that the Program was advertised in any manner in the establishment, the defendants, through their failure to respond to the requests for admissions, have admitted that they had a cover charge and that they advertised the showing of the Program. The plaintiff has also submitted evidence that it would have cost the defendants $2,600 to purchase a license to legally show the Program.

As the plaintiff correctly states, the Court has considerable discretion in awarding § 605 damages. Based on the evidence presented, the Court concludes that statutory damages pursuant to § 605(e)(3)(C)(i)(II) in the amount of $4,000 is a just award.

The Court further concludes that the plaintiff is entitled to a discretionary award of enhanced damages because the evidence establishes that the defendants showed the Program for commercial advantage or for private financial gain. In light of the defendants’ deemed admissions, and in light of the supporting affidavit of Joe Hand, Jr., the plaintiff’s president, the Court accepts that the defendants must have taken specific wrongful actions in order to intercept the plaintiff’s encrypted program. The plaintiff has also presented other evidence of the defendants’ willfulness in that the establishment advertised the fight, required patrons to pay a cover charge, and had three televisions showing the Program. See Kingvision Pay-Per-View, Ltd. v. Guzman, 2008 WL 1924988, at *3 (D.Ariz. April 30, 2008) (“Courts use a variety of factors in determining whether a defendant’s conduct is subject to enhanced damages for willfulness under § 605, including prior infringements, substantial unlawful monetary gains, significant actual damages to the plaintiff, the defendant’s advertising of the broadcast, and the defendant’s charging a cover charge or premiums for food and drinks during the broadcast.”) In light of the evidence, the Court will award $5,000 in enhanced damages pursuant to § 605(e)(3)(C)(ii).

The plaintiff also requests in its complaint and in its summary judgment motion that it be awarded its reasonable attorney’s fees and relevant costs pursuant to § 605. The plaintiff is awarded its costs and fees because § 605(e)(3)(B)(iii) provides that the Court “shall direct the recovery of full costs, including awarding reasonable attorneys’ fees to an aggrieved party who prevails.” The plaintiff is directed to comply with LRCiv 54.1 and LRCiv 54.2 in applying for its costs and fees. Therefore,

IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 23) is granted pursuant to Fed.R.Civ.P. 56 to the extent that the plaintiff is awarded the sum of $9,000.00 from defendants Donna Jean Chilleen and Kid Chilleen Promotions, Inc. pursuant to 47 U.S.C. § 605. The Clerk of the Court shall enter judgment for the plaintiff accordingly.

Update May 20, 2015 – Silva will be appealing Judge Earley’s ruling to the Nevada Supreme Court which is fortunate for the sake of obtaining reasons which squarely address the bounds of the NSAC’s jurisdiction.  MMAFighting reports as follows: “We are very confident in our position that the NSAC [sic] cannot discipline a person not licensed before them,” Silva’s attorney, Ross Goodman, stated.  While we are pleased that the Judge found the NSAC [sic] violated Mr. Silva’s rights by imposing an arbitrary sanction of a life time ban, the Court unfortunately did not focus or even address the specific statutory provisions expressly providing that licensure is a pre-requisite before the NSAC [sic] has jurisdiction to discipline someone.”


This week Nevada District Court Judge Kerry Earley ruled that the Nevada State Athletic Commission does enjoy powers to conduct out of competition drug tests for individuals not presently licensed in the jurisdiction  The unanswered question remains, just how broad are their drug testing powers?

For those unfamiliar with the case, Wanderlei Silva was scheduled to fight Chael Sonnen in Las Vegas at UFC 175.  Silva did not have a current licence with the NSAC nor had he applied for one when the NSAC requested an out of competition drug test.  Silva ran from the test and was subsequently disciplined by the NSAC.  The Court found the NSAC handed out an “arbitrary and capricious” punishment in doling out a lifetime ban and a $70,000 fine and ordered a re-hearing.

While headlines largely focused on Silva’s lifetime ban being set aside, the more important aspect of the ruling are the broad powers granted to the NSAC to conduct out of competition drug testing.  Just how broad are these powers?  The full scope is unclear but here is the Court’s breakdown-

The NSAC has sole jurisdiction over unarmed combat in the State of Nevada by virtue of NRS 467.070(1) which reads as follows:

      1.  The Commission has and is vested with the sole direction, management, control and jurisdiction over all contests or exhibitions of unarmed combat to be conducted, held or given within the State of Nevada, and no contest or exhibition may be conducted, held or given within this state except in accordance with the provisions of this chapter.

The Court interpreted this section as applying to all contestants, apparently also including those not presently licensed or actively applying for a licence.  The reasons fell short of any analysis of why this is the case.

The Court then pointed to NAC 467.850(5) which gives the NSAC drug testing powers and reads as follows:

An unarmed combatant shall submit to a urinalysis or chemical test if the Commission or a representative of the Commission directs him or her to do so.

The Court then relied on NRS 467.110(e) to note that the NSAC can “otherwise discipline” a contestant that “Is guilty of an act or conduct that is detrimental to a contest or exhibition of unarmed combat, including, but not limited to, any foul or unsportsmanlike conduct in connection with a contest or exhibition of unarmed combat“.

Lastly, the Court noted that these powers include the ability to refuse to issue a licence, the Court highlighted that these powers, under NRS 467.158(2)(a) also include the ability to discipline against a ‘person‘ relating to “the preparation for a contest or an exhibition of unarmed combat

The outer limits of the NSAC’s authority for out of competition drug testing have, unfortunately, not been clearly defined from Judge Earley’s reasons.  As previously discussed, drafting legislation clearly outlining the scope of an athletic commission’s powers is not a difficult task and one legislators should consider when it comes to the important issue of anti-doping measures in combat sports.  In the meantime, unless there is a further appeal of this case, in Nevada the NSAC enjoys out of competition drug testing powers at least by the time a fight is promoted in their jurisdiction (in this case Silva appeared at a press conference publicizing the bout).  Whether the powers extend beyond this time, and if so how far beyond this period, remains unknown.

Today Nevada District Court Judge Kerry Earley overturned the NSAC’s lifetime ban of Wanderlei Silva after he admitted to running from an out of competition drug test.

The Court ruled that the NSAC did have jurisdiction to conduct the out of competition test however the Court found that the punishment was “arbitrary, capricious and not supported by substantial evidence”.

The full judgement can be found here.

Update – The below list was apparently voted on and approved with a handful of modifications.  This range of penalties is expected to be in force as of September 2015.  Here is the finalized list as reported by Shawn Al-Shatti 

Tier 1: Sedatives, Muscle relaxants, Sleep aids, Anxiolytics, Opiates, Cannabis

1st offense: 18-month suspension, fine of 30-40% of fighter’s purse
2nd offense: 24-month suspension, fine of 40-50% of fighter’s purse
3rd offense: 36-month suspension, fine of 60-75% of fighter’s purse
4th offense: Lifetime suspension, fine of 100% of fighter’s purse

Tier 2: Diuretics being used to cut weight

1st offense: 24-month suspension, fine of 30-40% of fighter’s purse
2nd offense: 36-month suspension, fine of 40-60% of fighter’s purse
3rd offense: Lifetime suspension, fine of 100% of fighter’s purse

Tier 3: Stimulants (Amphetamines, Cocaine, Etc.)

1st offense: 24-month suspension, fine of 35-45% of fighter’s purse
2nd offense: 36-month suspension, fine of 50-60% of fighter’s purse
3rd offense: Lifetime suspension, fine of 100% of fighter’s purse

Tier 4: Anabolic steroids (includes Testosterone, HGH)

1st offense: 36-month suspension, fine of 50-75% of fighter’s purse
2nd offense: 48-month suspension, fine of 75-100% of fighter’s purse
3rd offense: Lifetime suspension, fine of 100% of fighter’s purse

Tier 5: Avoiding testing/detection/urine sample not of human origin or not of tested athletes, Adulterants, Drugs (including diuretics) used as masking agents

1st offense: 48-month suspension, fine of 75% of fighter’s purse
2nd offense: Lifetime suspension, fine of 100% of fighter’s purse


Today the Nevada State Athletic Commission held a meeting proposing firm penalties for PED use.

ESPN’s Brett Okamoto attended the hearing and shared the following document outlining the proposed range of penalties that are being voted on:

NSAC Proposed Guidelines for PED FAilures

Manitoba has tabled Bill 23, the Boxing Amendment Act, which is legislation intended to bring their laws up to date with the current wording in Canada’s Criminal Code.

You can find the Bill here – Manitoba Boxing Amendment Act

The legislation seeks to amend Manitoba’s Boxing Act to achieve the following:

1. rename the Provincial athletic commission to “the Manitoba Combative Sports Commission”

2.  Changing the name of the Boxing Act to “The Combative Sports Act”

3.  Substitutes the word ‘boxing’ for “combative sports” throughout the legislation

4.  Prohibits anyone who is “less than 18 years of age” from competing in a professional combative sport

This bill is not controversial and should pass into law without issue.

Interestingly, the bill will continue to allow professional kickboxing contests to be legally held, a position which at least one other Province believes is not possible under the current language of the Criminal Code.

California State Athletic Commission executive director Andy Foster has been one of the most outspoken regulators when it comes to rapid extreme weight cut practices in MMA, an entrenched reality of the sport that comes with real dangers.

Last year Foster stated that reform is coming to California and details of proposed reforms are now coming to light.

ESPN’s Brett Okamoto interviewed Foster who revealed that their goal is to address the problem bottom up starting with the amateurs.  A tentative plan is in place to create a lowest allowable weight limiti for anyone competing in amateur MMA by January, 2016.  Okamoto reports as follows:

Effective Jan. 1, 2016, amateur mixed martial artists competing in California will comply with a lowest allowable weight limit, designed to prevent athletes from ever dropping below 5 percent body fat.

That is the current goal, according to California Amateur Mixed Martial Arts Organization (CAMO) director JT Steele and California State Athletic Commission (CSAC) executive director Andy Foster.

While it’s not completely certain changes will go into effect by the start of next year, that is the timeframe CSAC and CAMO are anticipating. The longterm goal, Foster says, is to see lowest allowable weight limits adopted at a professional level….

The new amateur program, once in effect, will set a minimum weight class a fighter is allowed to compete in, based on a physical assessment conducted by a CSAC-licensed ringside physician. This practice is already utilized by the NCAA in amateur wrestling. While the NCAA also prohibits specific weight-cutting methods, CAMO intends to focus exclusively on the lowest allowable weight limit for now.

I applaud California regulators for taking steps to address this problem.  While no solution is perfect I encourage regulators to look at the possibility of adding a hydration test to coincide with weigh ins, this can ensure that every athlete cleared to compete makes weight while being hydrated which would address the root danger that come from Rapid Extreme Weight Cut practices, ie – profound dehydration in close proximity to competition.

In the latest case addressing damages for piracy of UFC Pay Per View programs by commercial establishments, reasons for judgement were released by the US District Court, E.D. Missouri, ordering a Defendant to pay $15,000 in damages.

In the recent case (Joe Hand Promotions, Inc. v. Shepard) the Defendants displayed UFC 129 in their sports bar without purchasing the $900 commercial sub licence.  Instead the program was broadcast in the bar from a residential satellite account “registered to a second floor residential apartment above the Sports Bar”.   District Judge Stephen Limbaugh provided the following reasons in assessing $15,000 in damages:

On the date of the Program, without authorization, the Program was intercepted and/or received and broadcast in the Sports Bar. The Program was broadcast via a residential DISH Network satellite account registered to a second floor residential apartment above the Sports Bar to obtain the unauthorized signal. The transmission of the Program could not have been undertaken without specific wrongful actions to intercept, receive, and/or exhibit the telecast of the Program. In order to safeguard against the unauthorized interception or receipt of the Program, the interstate satellite transmission of the Program was electronically coded or scrambled and was not available to or intended for the use of the general public. If a commercial establishment was authorized by plaintiff to receive the respective Program, the establishment was provided with the electronic decoding equipment and the satellite coordinates necessary to receive the signal or the establishment’s cable or satellite provider would be notified to unscramble the reception, depending upon the establishment’s equipment and provider. Authorized commercial establishments which contracted with plaintiff were required to pay to plaintiff a sublicense fee to receive the Program. This sublicense fee is typically based on the capacity of the establishment. Here, the Sports Bar had an occupancy of fifty people. According to the rate card, the fee for a legal broadcast would have been $900.00.

On the night of the Program, plaintiff’s auditor observed the Program being telecast to approximately forty-two patrons at the Sports Bar on three large televisions. The exhibition of the Program was advertised and promoted on the Sport’s Bar’s Facebook page which was available online to the general public. A review of the Sports Bar’s Facebook page shows that Defendant Shepard personally authored posts to the Facebook page…

Here, plaintiff does not allege that Sports Bar is a repeat violator and does not allege substantial financial gain. The Court notes that the minimum amount of the actual damages is $900, the amount of the unpaid sublicense fee. “The Court recognizes, however, there are additional actual damages to plaintiff that are more difficult to calculate, such as the cost of auditing and the devaluation of its programing.” Joe Hand Promotions, Inc. v. Thompson, 2013 WL 466278, at *3. Having considered the authorities presented and other applicable cases from this jurisdiction, along with the affidavit testimony and other evidence, the Court, in its discretion, will award $5,000 in statutory damages under § 605(e)(3)(C)(i)(II) and $10,000 in enhanced statutory damages under § 605(e)(3)(C)(ii).

Nevada State Athletic Commission member Bill Brady has apparently resigned today.  Steve Carp of the Las Vegas Review-Journal is the first to break this story and reports as follows:

Bill Brady, who has served as a member of the Nevada Athletic Commission since 2007, has resigned his position on the five-member panel.

Brady’s resignation is effective immediately.

In a letter to Gov. Brian Sandoval dated Wednesday, Brady said it was time to move on.

“To all things in life there is a season, and I believe my season on the Nevada Athletic Commission must now come to an end so that another exciting season may begin,” Brady wrote in his letter to Sandoval.

Brady was initially appointed to the commission in 2007 by then-Gov. Jim Gibbons. He was re-appointed in 2010 and for a third time in 2013.

“I have a profound respect and love for the fighters, judges, referees, staff and those associated with the fight world in Nevada and beyond,” Brady said in his resignation letter. “It has been an honor of a lifetime for me to serve on the NAC. I have given my very best to the Commission for over seven years now and I believe I have contributed in a positive way during that time.”

Despite the grit of combat sports athletes when facing each other in the ring or cage, few have similar nerve in standing up for themselves and demanding contractual reform.  One sided contractual terms are common and are rarely challenged through the judicial process.  Fighters fear the pen which can be mightier than the sword.  Fighters also should not hold their breath hoping legislatures will fix ‘oppressive’ MMA contracts any time soon.

This week the UFC / Reebok uniform sponsorship numbers were leaked and these revealed a significant income cut for many of the UFC’s fighters.

UFC Reebok Sponsorship Tiers

The reaction from fighters has not been positive with many voicing displeasure:

Matt Mitrione Tweet Re Reebok UFC Pay

Tim Kennedy UFC Reebok Tweet

Al Steriling Tweet Reebok UFC Tiers

Al Iaquinta Tweet Reebok UFC Deal

Brandon Thatch Reebok Quote

So what can fighters do about developments such as this?   As Mitrione points out, standing out from the crowd makes a fighter a target.  Few are brave enough to take the hit if it means sacrificing much needed pay.

Matt Mitrione Tweet2 Re Reebok UFC Pay

The solution is strength in numbers.  If a critical mass of fighters band together (hint a MMA Fighters Association) it would not take much to stand up and demand minimum reforms to create a better playing field between MMA fighters and promoters.

Minimum terms can be demanded such as limits on contract length, elimination of contract matching clauses, elimination of champions clause contract extensions (ie – preventing free agency when an athlete is at their most valuable), allowing athletes to have limited rights to their fight footage for self promotional purposes (take a look at Bas Rutten’s YouTube Channel to see the value in this) and less restrictive sponsorship terms.

This can be achieved.  It just takes will and action.  Imagine if enough fighters were on the same page and refused to take further fights unless sensible across the board contract terms were required going forward?  A promoter can’t force an athlete to fight.  Imagine if a promoter could not fill a fight card?  Change would come quickly.

Instead of tweeting displeasure MMA fighters should work together for common reform.  Its in their own interest and in the interest for the long term survival of the sport.  Fighters, you have more power than you think.  If you work together you don’t have to fear the pen, you can pick it up and use its strength as your own.

This morning economist/MMA Reporter Paul Gift attended the change of venue hearing in the UFC Anti Trust Class Action lawsuit and provided live updates which he published at BloodyElbow.  Zuffa is asking the Court to move the lawsuit to Nevada and the Plaintiffs wish to keep the matter in Northern California.

In short the Court reserved judgement and it is unclear when a ruling will be handed down although one can likely be expected before Zuffa’s upcoming motion to dismiss the claim is heard in July.

From Gift’s updates, it appears the ruling will likely hinge on whether the Court is persuaded that interpretation of Zuffa contracts will play a vital role in the anti trust litigation.  Below are Gift’s live published updates –

8:48am – Lawyers are starting to file into the hallway. Kyle Kingsbury’s at least one fighter in attendance today…I think.

8:54 – Make that Hallman, Fitch, Le, Kingsbury, Vera, Quarry, and Vazquez in the house.

9:00 – Everybody switching sides! Musical chairs with fighters and attorneys.

9:03 – Everyone looks ready to go. We’re just waiting for the judge now.

9:05 – The judge is here. Time to get things started. UFC case is first.

9:06 – Fighters being introduced to the judge. There’s a lot of “morning” going on here. Reminds me of “Doctor, Doctor.”

9:09 – UFC’s up first. Showing judge the forum selection clause. Seven of 11 fighters have that clause in their contracts. They’re showing the judge a map with fighter locations and selection clause status.

9:12 – Handed the judge a PowerPoint printout that we can’t see. Focusing on venues in Las Vegas and fighters who’ve fought there. Now moving on to legal precedent.

9:15 UFC lawyers are talking to the judge about the “crucial” component of the case and making their argument that contracts must be interpreted, “extensive interpretation.” Judge is saying that plaintiffs arguing there’s no interpretation. UFC responds that whether they say it or not, crucial contracts will have to be interpreted.

9:17 UFC: “Supreme Court argues that seven of these plaintiffs absolutely belong in Nevada. There’s no sense splitting the case.”

9:18 UFC: “All the plaintiffs have to hang their hat on is to say, ‘We chose this forum.'” Judge asks shouldn’t we give some deference to that. UFC: “A little.”

9:20 Judge questioning the UFC about why plaintiffs shouldn’t be allowed to choose a location that’s inconvenient for them.

9:22 UFC’s making an argument about convenience. “Which is exactly why we have clauses like this when we’re doing business.

9:23 Plaintiffs are up now.

9:24 Everybody’s getting handouts, except us in the back. Saveri starts by attacking the UFC’s legal cases. “They all go our way.”

9:25 There’s a back and forth now about an LCD price fixing case. Judge is questioning plaintiffs about the horizontal nature of the price fixing scheme and how that affects venue selection.

9:29 Plaintiffs: “This is not a contract case…there is no claim contracts were breached.” Judge is questioning Saveri about confusing language in his transfer filing.

9:30 Plaintiffs: “The provisions of the contract are relevant but more relevant are the effects in the world.”

9:32 Saveri’s arguing that it doesn’t matter what the Champion’s Clause says, what matters is the effect.

9:33 Judge: “I appreciate that this is not a contract case.” Then he asks Saveri don’t we have to interpret the contracts to determine their anticompetitive effect?

9:35 Judge asks don’t we have to look at clauses to see if an effect is generated by the clauses?

9:36 Saveri says the contractual provisions will be looked at and are relevant to the case, but they’re not asking to interpret or enforce the contract.

9:37 The conversation now moves to the UFC’s old forum selection clause and their new one that seven plaintiff fighters are under.

9:39 Plaintiffs are now arguing for their legal citations and against the UFC’s. These parts put me to sleep.

9:43 Plaintiffs are focusing specifically on one old case with very broad language. They compare it to the old venue selection clause and argue that since the UFC leans on that case, it doesn’t apply.

9:45 Judge is questioning Saveri again about the possible need to interpret contracts during the course of the case.

9:46 Judge: “You’re saying it’s not going to happen.” Saveri: “The closest we’re going to come to that is evidence about what the effect of that is in the market.” Judge asks if there won’t be a question of “What did you mean by this?” Saveri: “We don’t reasonably anticipate that to happen.”

9:47 Saveri: “Even if an interpretation needs to occur, that doesn’t bring it within the cause of action or the reason we brought the claim.”

9:49 The discussion finally turns to convenience and fairness factors. Plaintiffs are still up. Saveri says the UFC’s argument that Nevada can better interpret the contracts is a wash because we’re talking antitrust law. Judge says he tends to agree.

9:51 Saveri’s now arguing that they have plaintiffs who live here, who chose this location, and that deserves deference.

9:52 Saveri’s now arguing that fights happen here, Strikeforce was here, Twitter’s here. “They’re all important.”

9:54 They’re now discussing the differences in costs of litigation in the two areas. Saveri argues the world is getting smaller. UFC execs can be brought here.

9:56 Saveri calls it a “remarkable claim” that NorCal could be inconvenient for Zuffa since they’ve initiated litigation here in the past. “To me that speaks volumes.”

9:58 Plaintiffs final two minutes. Argue: No forum selection case goes their way. Judge interrupts and says he’s looking most closely at the contract interpretation issue. Saveri says the action was not brought to “interpret.”

10:00 UFC’s up last and they focus right on the interpretation issue now that the judge mentioned his interest in it. The UFC’s now quoting an old Amazon antitrust case that they argue supports their position.

10:01 Judge: “Is there any other way to resolve that (interpretation issue)?” UFC: “No…I mean yes. You can say ‘Case dismissed!'”

10:03 UFC quoting plaintiffs’ complaint language and saying it’s “plain wrong” under the contract and the Court will be asked to interpret the contract. Quarry just burst into laughter. Made UFC lawyer pause and mumble about respect in the courtroom.

10:04 And now we’re back to legal case wrangling.

10:05 UFC reveals that plaintiffs asked in discovery for “All documents from 1993 to present discussing, evaluating, or analyzing the contractual provisions at issue in this case.”

10:07 UFC arguing about interpretation. If the Court says it’s a harmless provision, there’s no anticompetitive effect. Economists got their first mention.

10:08 The UFC’s attacking plaintiffs’ arguments about Scott Coker and Twitter.

10:11 UFC just wrapped.

10:14 And that’s it. Everyone just left and the judge didn’t decide, which was always a possibility. There’s another hearing later today. We’ll see what happens then.