Today Paul Gift at BloodyElbow.com wrote an involved piece analyzing the restrictive terms contained in Zuffa and Bellator fighter contracts.  The article should be read in full for anyone interested in the business of MMA.

Paul concludes that if these practices are widespread and the industry norm the current anti-trust lawsuits against Zuffa are facing a steep uphill battle.

Whether the anti-trust lawsuits succeed or not, and leaving fighter pay issues aside, it is quite clear that contracts such as these have one sided collateral terms greatly favoring promotions.  If fighters ever wish to change this there are two potential remedies outside of successful litigation.  Either a strong fighters association being formed to set minimum standards with respect to collateral terms in contracts such as contract length, exclusivity clauses, matching clauses, ancillary rights agreements etc.

Failing this, the only other solution is legislative change.

California flirted with fixing ‘oppressive’ MMA contracts with Bill AB 2100.  The bill died before ever becoming law.  The bill would have prevented contracts with ‘coercive’ terms and these include provisions that

1. Assign any exclusive future merchandising rights to a promoter for an unreasonable period beyond the term of the promotional contract

2. Automatically renews a promotional contract or extends the term without good faith negotiation, or extends the term of any promotional contract of a fighter who participates in a championship contest for a period greater than 12 months beyond the existing contract termination period

3.  Unreasonably restricts a mixed martial arts fighter from obtaining outside sponsorship from a firm, product, or individual

4.  Requires a mixed martial arts fighter to relinquish all legal claims that the fighter has, or any acquire in the future, against the promoter beyond assumption of the risks inherent in the sport of MMA and the fighter’s participation in pre and post bout events and activities

5. Requires a fighter to grant or waive any additional rights not contained in the promotional contract as a condition precedent to the fighter’s participation in any contest

6.  Is for a period exceeding 5 years

7.  Automatically extends the term or conditions of the contract

8.  Requires a party to negotiate exclusivity with the other party

9.  Grants a party the right to natch the term of an offer

10.  Grants a party unrestricted rights to use the identify of the other party

In a February 27, 2015 article Zach Arnold reports that

On a curious side note, recent lobbying records publicly filed by Zuffa LLC & Station Casinos LLC in Sacramento show both donations & expenditures involving AssemblymanLuis Alejo. Three years ago, Alejo was pushing Assembly Bill 2100 in California. AB 2100 would have allowed MMA fighters to tap into the Boxer’s Pension Fund and would have subjected promoters to regulations regarding adhesive/coercive contracts. AB 2100 predictably died.”

Legislative change such as the above would be opposed to the business interests of MMA promotions.  That being said, if addressing oppressive terms in fighter contracts are ever going to be addressed the solution can only come from the Courts, the Legislature or the fighters themselves.

ABC Logo

Last month I addressed some practical barriers for the UFC’s planned random anti doping program. The announced program has caught the eye of State and Provincial Athletic Commissions who, although welcome the changes, are grappling with the legalities of using the privately obtained information in a regulatory context.

MixedMartialArts.com quotes the Association of Boxing Commissions President, Tim Lueckenhoff, as follows:

““I applaud the UFC for recognizing they need to step up and take action. Now, we as commissions need to figure out how we handle a fighter who is positive outside-of-competition

Nick Lembo, chair of the ABC’s legal and rules committee, and legal counsel to the influential New Jersey State and Athletic Control Board, also weighed in with the following level headed comments:

It would seem that the testing laboratory could report the results directly to the contestant’s home jurisdiction, to the ABC’s MMA Database Committee, and the ABC Medical Committee. As the ABC’s legal committee chair, I would remind members that any information can be considered when contemplating licensing and bout approval decisions.  I would expect that ABC members would seriously consider reports of positive results from accredited laboratories when considering to grant or renew a license, issuing disciplinary action to a current licensee, or deciding an upcoming event’s bout approval.

None of these comments get over the initial hurdle of needing fighter consent as to the use of their privately collected samples outside of the official regulatory process, but the fact that commissions are taking notice and strategizing on how they ought to use the data to further the safety interests of the sport is a welcome development.

Victoria, Australia’s most densely populated State, has not been a friendly venue for the UFC as the Government allowed MMA but banned events from taking place in a cage.  This prohibition kept the UFC out of the Country’s second largest City due to their desire to only hold events in their trademarked ‘Octagon”..  After years of lobbying the ban is now being overturned.  With this development the UFC has announced they will host UFC 193 in Melbourne in November, 2015.

The Australian Broadcast Corporation quotes John Erin, Victoria’s Minster of Sports, as follows:

Mixed Martial Arts has been legal in Victoria, the only thing that was not legal is the actual fencing which made it safer for competitors, officials and spectators.  This sport will be much safer. A whole raft of stakeholders that I spoke to indicated how unfair it was that their sport was not being looked after by the previous government.”

With this development MMA in a cage is now legal throughout Australia with the exception of the State of Western Australia which has banned the cage since 2008.

Two separate sets of reasons were released last month awarding damages for commercial piracy of UFC Pay Per View Broadcasts.

In the first case (Joe Hand Promotions, Inc. v. RLPR Management LLP) the Defendant broadcast UFC 101 at a commercial establishment without paying the sub licencing fee.  The evidence showed the program being televised on eleven television screens inside the Defendants’ establishment and that between 53-57 patrons were present.

The Plaintiff obtained default judgement and sought substantial damages although a far more modest award than requested was made.  In finding $7,200 in damages were appropriate District Judge Elizabeth Foote provided the following reasons:

The conduct of the Defendants in this case has harmed Joe Hand’s business and decreased its profits. Considering the need to deter future unlawful conduct, the Court awards Joe Hand statutory damages in the amount of $2,400, which it finds to be just under the circumstances and comparable to awards in similar cases…

The evidence on the record shows that Defendants broadcast the program on eleven screens and had between fifty-three to fifty-seven people in the establishment during the broadcast.[27] There is no evidence that the Defendants charged a cover charge for entry into the establishment, charged a premium for food or drinks, advertised their broadcast of the program, or are repeat offenders. Considering the evidence in the record, the willful nature of the violation at issue, and the need to deter violations of the law, the Court finds that enhanced damages are warranted in the amount of $4,800, which reflects twice the statutory damages and which is four times the estimated license fee for the establishment.

In the second case (Joe Hand Promotions, Inc. v. Valdez) the Defendant broadcast UFC 115 without paying the commercial sub licencing fee.  Default judgement was obtained.  Magistrate Judge Renee Toliver recommended $60,000 in damages to be paid and District Judge Sam Lindsay agreed.  In finding maximum statutory damages of $10,000 were appropriate in addition to $50,000 in enhanced damages the Court reasoned as follows:

In Plaintiff’s Motion for Final Default Judgment, it asks the Court to award $10,000 in statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) and $50,000 in additional damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii) of the Federal Communications Act of 1934 (“the Act”). Doc. 30 at 15, 21, 25. Section 605 of the Act provides that an aggrieved party may not recover an award of statutory damages of more than $10,000 (for each violation of subsection (a) of section 605 of the Act). 47 U.S.C. § 605(e)(3)(C)(i)(II). The amount of statutory damages requested by Plaintiff falls within the amount allowed by statute, and the Court finds that the amount of $10,000 in statutory damages is reasonable.

With regard to additional damages under subsection (C)(ii) of the Act, the conduct alleged in the Complaint amounts to “willful” conduct, thereby allowing Plaintiff to recover additional damages under 47 U.S.C. § 605(e)(3)(C)(ii). See Time Warner Cable v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999)(“There can be no doubt that the violations were willful and committed for purposes of commercial advantage and private gain. Signals do not descramble spontaneously, nor do television sets connect themselves to cable distribution systems.”). A court in its discretion may increase the amount of damages by an amount of not more than $100,000 for each violation of subsection (a). 47 U.S.C. § 605(e)(3)(C)(ii). To deter pirating of cable and satellite broadcasts, courts have applied multipliers of three to eight times the statutory damages as additional damages. See Kingvision Pay-Per-View, Ltd. v. Scott E.’s Pub, Inc., 146 F. Supp. 2d 955, 960 (E.D. Wis. 2001)(discussing cases applying multipliers of three to eight times the statutory damages as additional damages in order to deter future violations); see also Cablevision Sys. Corp. v. Maxie’s N. Shore Deli Corp., No. CV-88-2834 (ASC), 1991 WL 58350, at *2 (E.D.N.Y. 1991) (awarding additional damages for willful violation under section 605 in the amount of five times the initial statutory damages award). Here, Defendants did not exhibit the Broadcast innocently; it was intentionally and knowingly done for financial gain. The multiplier of five times in this case is reasonable, considering the event was exhibited on ten televisions to as many as 66 patrons, Doc. 31-4 at 2, and the importance of deterring future violations. The Court determines that such damages are ascertainable from the Complaint and the record and recommends an award to Plaintiff of $50,000 as additional damages. Accordingly, Plaintiff is entitled to, and should be awarded a total amount of $60,000 in damages.

When it was announced that Quinton Jackson resigned with the UFC Bellator President Scott Coker was quick to respond with the following tweet:

Scott Coker Tweet

It appears Coker’s words were not an empty threat with the organization announcing they have now filed suit seeking an injunction to keep Jackson from fighting with the rival promotion.  Here is the full press release:

Today, Bellator MMA was compelled to go to court to stop Quinton “Rampage” Jackson from fighting in an April 25th bout promoted by Bellator’s competitor, Ultimate Fighting Championship (UFC).  Jackson, who has completed only three fights of his exclusive six-fight contract with Bellator, is barred by contract from fighting for any promoter other than Bellator. Our lawsuit for an injunction and related relief – filed in the Chancery Division of the Superior Court in Burlington County, New Jersey – will compel Jackson to honor his contractual agreement.   We look forward to having one of our MMA stars fighting for Bellator again.

You can click here for Jackson’s side of the story as told by his manager, Lee Gwynn, in late 2014.

Given the fallout to the Promotion’s reputation following the Eddie Alvarez lawsuit, it is somewhat surprising Bellator is taking this course of action.  It would be in everyone’s best interests if a negotiated resolution can be reached without the need for prolonged litigation.  That said, given the current anti-trust allegations against the UFC Jackson’s career may just get tied up in the middle as everyone else’s legal interests play out.

Drostanolone Image

Anderson Silva has tested positive twice for doping.  First for the steroid drostanolone during an out-of-competition test taken on January 9, 2015 and again at a post fight test taken on January 31.

Silva adamantly denied doping with the same vigor of OJ Simpson vowing to find the real killer, being quoted as follows:

I have not taken any performance enhancing drugs. My stance on drugs is and will always be the same. I’m an advocate for a clean sport…I’m consulting with my advisors right now to explore all of my options and intend to fight this allegation and clear my name. I will not make any further comments until my team advises me to do so.”

Now Silva has apparently decided to change course.  He will reportedly admit to taking drostanolone not to cheat, but rather to recover from injury.  MixedMartialArts.com quotes from a Brazilian publication which reports as follows:

Anderson will deny he tried to cheat to beat the American. However, he will admit he made use of the anabolic steroid drostanolone during recovery from the severe fracture suffered against Chris Weidman at the end of 2013.

The Brazilian will argue that the anabolic used as a remedy to recover the injured site. Besides the famous boost in athletic performance function, drostanolone can also be used to strengthen the muscles. At the beginning of recovery, fearing that he could never have a normal or even stay without walking, he used the anabolic with this second order.

The strategy of seeking sympathy by pinning the use of the steroid on his previous horrific leg fracture may have worked if that was Silva’s initial move.  This is why a staple of legal advice is “shut up”.  Out of Court statements rarely do any good other than to incriminate an individual.  Here we have an outright denial followed by a reported new strategy to apparently minimize fallout.  In other words, if this report is accurate, we have doping followed by lying.   Inconsistent statements can kill credibility and all this before Silva’s hearing even begins.

Leaving public relations aside, it is no excuse to have a legitimate medical reason for doping if you don’t seek clearance ahead of time with relevant Athletic Commissions, not after being caught.

The Nevada Athletic Commission defers to WADA standards in granting TUE’s.  These could be applied for steroids in limited circumstances.  If Silva’s doctors felt he needed steroids the only proper course of action would be to apply to the NAC and try to satisfy the following test –

1. “The Athlete would experience a significant impairment to health if 
the Prohibited Substance or Prohibited Method were to be withheld in 
the course of treating an acute or chronic medical condition.” (Article 
4.1 a. of the International Standard for TUEs.)

2. “The Therapeutic Use of the Prohibited Substance or Prohibited 
Method would produce no additional enhancement of performance 
other than that which might be anticipated by a return to a state of 
normal health following the treatment of a legitimate medical 
condition. 

3. “There is no reasonable Therapeutic alternative to the Use of the 
otherwise Prohibited Substance or Prohibited Method.” (Article 4.1 
c of the International Standard for TUEs.)

4. “The necessity for the Use of the otherwise Prohibited Substance or 
Prohibited Method cannot be a consequence, wholly or in part, of 
prior non-Therapeutic Use of any Substance from the Prohibited 
List.” (Article 4.1 d. of the International Standard for TUEs.)

Now, for perhaps the most important question, if a TUE was sought, should one have been granted?  I reached out to orthopaedic surgeon Dr. Benjamin who provided the below reply:

Dr Benjamin Tweets re Drostonolone

A recurring theme at this website is pointing out the real dangers that come with Rapid Extreme Weight Cut practices in MMA. Documented harm has become so common that my list of injuries from Rapid Extreme Weight Cut practices has to be amended on a far too frequent basis.

Kirik Jenness, owner of MixedMartialArts.com and official record keeper for Canadian and US MMA has been equally vocal about this harmful practice and the need for reform.  In his latest article Jenness notesWeight cutting has killed a fighter. It has very nearly killed many more. It has led to the cancellation of countless fights. Due to the attendant lack of fluid cushioning around the brain, it has surely led to brain damage.”

So what is the solution?  I’ve said it before and will keep repeating it.  The danger is dehydration. The solution, therefore, is to add a hydration requirement when making weight. It does not matter if the weigh in is the day before or the day of the fight, the fighters must weigh in and be hydrated at the same time.  This can be measured cheaply and effectively.

After mentioning this repeatedly on the Underground forum, a South Carolina ringside physician agreed and provided the below practical breakdown which is worth republishing here.  Regulators need to take note.  There is an inexpensive and effective fix to the dangers of Rapid Extreme Weight Cuts.  The sport does not need another death or catastrophic injury before addressing this.

The more I have perseverated about this over the last year or so, the more I think that the fairly simple to implement process that Erik has been mentioning recently is probably the best immediate solution. Keep weigh ins the day before the event so they can be a public, buzz building spectacle like they are now, but add a simple refractometer measurement of urine SG for all the fighters just before the weigh in. A handheld refractometer is ~$500, and can simply be rinsed under a faucet between uses. Someone could test all the fighters on a card in about half an hour just standing at the sink in a bathroom. Fighter comes in, pees in a cup, it gets tested, quick rinse and next guy comes in. The person using the refractometer does not even have to be a medical person, you could train someone how to do it in a minute or two. If the SG is OK, you get to weigh in, if not, you can’t weigh in until your SG falls below the threshold.
There would be some growing pains for sure, and I would expect that initially a number of fights would have to be scrapped at the last minute. However, fighters and trainers would quickly learn what weight they need to fight at to pass the test, and I think for the most part the same guys that are fighting each other now would be fighting each other then, just at a heavier, hydrated weight. I think we will see better fights as well since guys would be performing without having gone through the hell of cutting and rapid rehydration that most do now.

Doing weigh ins like this would eliminate the expense and paperwork of certifying a fight weight like high school wrestling does, and since you would take the SG test close to the event it would make the most common method for “cheating” the SG test more risky than it would be to do it “out of competition” earlier in the year.

The first person to implement an attempt to limit weight cutting is going to draw intense criticism- particularly if it results in fights being scratched

However, I think ultimately it will benefit the sport and in retrospect fans will be glad that it was done

Former UFC Fighter Josh Neer is making news after video surfaced of him violently finishing a gym fight against an opponent who apparently had been heckling Neer on social media and accepted an invitation to fight.

The video was quickly taken down, but copies of course survived.  Here is the clip –

Shorty after Iowa Athletic Commission Executive Director Joe Walsh told TMZ Sports that “We are aware of the situation. I have our legal team taking a thorough look at our rules. We’re checking to see if we have anything on the books that covers this.”

Although a quick look at Iowa Code Chapter 90A appears to show that the Commission has no ability to lay sanctions following this gym beatdown, not all jurisdictions are equally powerless.  (Update February 27, 2015the Iowa Commission has now closed their investigation concluding they indeed are powerless over this situation)

For Canadian gym owners,for example, the not so secret tradition of ‘green lighting’ and ‘smokers‘ can come with legal consequences.

Under Canadian law, section 83 of the Criminal Code prohibits ‘prize fights’. The name is misleading because no ‘prize’ needs to be on the line for the prohibition to be triggered.  All that matters is that the fight is “an encounter or fight with fists, hands or feet between two persons who have met for that purpose by previous arrangement made by or for them“.  From there, unless the bout fits one of the exceptions (being a sport on the Olympic Programme or a sport regulated by a Provincially designated athletic commission) the bout remains illegal.  Here, this being an MMA fight agreed to before hand, it would clearly be captured by the broad language of Canada’s Criminal Code.

There is no ‘gym fight‘ exception to the Criminal Code prohibition.  Gym owners should be weary in allowing unsanctioned fights occur on their premises as, depending on the jurisdiction, doing so can expose the participants to criminal prosecution.

Adding to this site’s archived judgments of lawsuits addressing UFC piracy claims, reasons for judgement were released this month by the US District Court, D. South Carolina, ordering a commercial establishment to pay $37,757 following piracy of UFC 135.

In the recent case (Joe Hand Promotions, Inc. v. Upstate Recreation) the Defendants operated a Nightlclub.  They displayed UFC 135 but did not purchase the commercial sub-licencing rights from the Plaintiff to do so.  The Plaintiff sued and obtained default judgement.  The nightclub had a maximum occupancy of 300 people and based on this the sublicencing fee would have been $2,250.  The evidence established that the most people present during the bouts was eighteen.

In awarding $10,000 in statutory damages, $25,000 in enhanced damages and attorney fees and costs Magistrate Judge Jacquelyn Austin made the below recommendations which District Judge Timothy Cain accepted

In line with awards recommended and/or awarded in this District for similar violations, the undersigned recommends a statutory damages award of $10,000. See Joe Hand Promotions, Inc. v. Rascals Café, LLC, C/A No. 4:11-2135-TWL-KDW, 2012 WL 4762142, at *5 (Aug. 31, 2012), Report and Recommendation adopted by 2012 WL 4762452 (D.S.C. Oct. 5, 2012) (awarding five times the license fee); Todd, 2012 WL 2178851 (awarding approximately five times the license fee). Here, the maximum statutory award is less than five times the license fee Defendants should have paid to legally broadcast the Program…

Here, in addition to the admissions based on Upstate Recreation’s default and Ruegsegger’s failure to respond to Plaintiff’s Requests for Admissions, Plaintiff’s President avers that the Program could not have been “mistakenly, innocently, or accidentally intercepted.” [Doc. 37-6 ¶ 9.] Further, Southern paid a cover charge of $25 to enter Leeg’s Nightclub. [Doc. 37-4 at 1.] Although the Court finds that Defendants’ violations were willful and that more than nominal damages should be awarded to deter future violations, the Court does not conclude that the maximum enhancement is appropriate in this case. As such, the undersigned recommends an enhanced damages award of $25,000, or twoand-one-half times the statutory award, in line with awards recommended and/or awarded in this District for similar violations.See Rascals Café, LLC, 2012 WL 4762142, at *5 (awarding three times the statutory award); Todd, 2012 WL 2178851 (awarding two times the statutory award).

While not a case involving combat sports, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating that a sports league can be liable in negligence when they fail to take reasonable steps to ensure their rules of play are being followed.  There are lessons to be learned in cases such as this when it comes to issues such as Rapid Extreme Weight Cut practices and PED abuse in combat sports.

In today’s case (Forestieri v. Urban Recreation Ltd) the Plaintiff was injured in a rec league soccer game organized by the Defendants.  The Rules and Code of Conduct for the co-ed league made clear that there would be no contact or rough play of any sort.  Specifically slide tackles were banned.

The Plaintiff was injured by a slide tackle conducted by an unknown player, John Doe.   All that was known about John Doe is “that he was not registered as an FDU player in the League for the 2011 soccer season.

The Court found the Defendants liable for John Doe’s actions.  The court noted by letting an unregistered player participate and in not informing that participant of the specific rules of the league they were negligent.  In reaching this conclusion Mr. Justice Macintosh provided the following reasons:

[27]         In her examination for discovery before the summary trial, Ms. Hernandez acknowledged:

·       that her duty as the team captain was to ensure that communication from the League was passed on to the players and that the players were playing within the Rules;

·       that she never discussed with the FDU team what kinds of physical play were illegal in the League;

·       that having the FDU team members review the Rules and the Code of Conduct was important for helping to avoid injuries to other players in the League;

·       that it would be dangerous to allow players to participate in a game if they were unaware of the Rules and the Code of Conduct;

·       that a person who was not registered on the FDU team, and had not read the Rules and the Code of Conduct, should not have been playing in the League; and

·       that if an unregistered player was playing, she did not believe such a player had read the Code of Conduct.

[28]         In 2011, Ms. Hernandez could have had Zeyna Berdan ensure that the players knew the Rules.  However, she did not delegate that task to Ms. Berdan.  There is no evidence that either of the two ever turned their mind to having Ms. Berdan ensure that the players were either registered or knew the Rules, or both…

[44]         What act or omission by Ms. Hernandez could cause her to breach her duty to Mr. Forestieri?  He complains that:

·       she and FDU failed to register John Doe, the player who injured Mr. Forestieri;

·       she and FDU failed to inform John Doe of the League’s Rules and Code of Conduct; and

·       she and FDU failed to enforce the Rules and Code of Conduct.

[45]         In my view, those complaints are merited.  Ms. Hernandez and FDU did not take reasonable steps to ensure that those playing for FDU knew the League Rules.  Ms. Hernandez could have seen to that directly or by seeing that Ms. Berdan acted on her behalf in performing that task.  Between them, they should have ensured that only registered players who knew the Rules were playing, or, at least, that all who played knew the Rules.

[46]         As it was, the omissions resulted in John Doe playing for FDU when he probably thought he could slide tackle.  Mr. Forestieri has proved, on the balance of probabilities, that Ms. Hernandez failed to take reasonable steps to ensure that John Doe knew the rule prohibiting slide tackles…

[55]         I have found that Ms. Hernandez and FDU owed a duty to Mr. Forestieri, which they breached.  The breaches by Ms. Hernandez and FDU resulted in John Doe playing on February 6, 2011, while probably not knowing of the prohibition against slide tackles.  On the balance of probabilities, those breaches resulted in John Doe slide tackling Mr. Forestieri and causing him the knee injury he suffered that day.

[56]         I therefore find that Ms. Hernandez and FDU are liable in negligence for the injury suffered by Mr. Forestieri.