Archive for April, 2015

Mayweather Pacquiao injunction filing image

Plaintiffs with a financial interest in the TV rights in the Mayweather/Pacquio bout have sued various parties and websites boxinghd.net and sportship.org for anticipated copyright breach.

In short the various websites have advertised that they will be live streaming the bout online free of charge.  The Plaintiffs have sought various relief to stop the live stream before it starts seeking both preliminary and permanent injunctions, restraining orders against “all services providers whose services will enable or facilitate Defendants’ anticipated infringement” , damages, and costs.

The full pleadings were obtained by deadline.com and can be found here – Mayweather Pacquiao Injunction Pleadings

Adding to this site’s archived decisions of UFC PPV piracy cases, reasons for judgement were released this week by the US Disrict Court, SD Alabama, (Joe Hand Promotions Inc v. Beech) finding a a defendant liable for damages after ordering UFC 150 on a residential basis but displaying the event in a commercial establishment.

In finding the Defendant liable District Judge Kristi DuBose provided the following reasons:

In its response to Joe Hand’s motion for summary judgment, the Defendants concede that they are liable for violating § 605. (Doc. 23 at 4 “Therefore, Plaintiff is entitled to summary judgment as a matter of law on the issue of liability.”). To hold Beech vicariously liable in her individual capacity and as officer, director, shareholder and/or principal of the Café under § 605, Joe Hand must show that Beech had a “right and ability to supervise the violations, and that he had a strong financial interest in such activities.” J & J Sports Prods., Inc. v. Arboleda, 2009 WL 3490859, at *5 (M.D. Fla. Oct. 27, 2009). Beech is “the sole manager, member and president” of the Café and the only individual who holds a financial interest in it. (Doc. 21-9 at 2-3). Beech has admitted that she placed the order for UFC 150 and that it was shown in the Café on August 12, 2011. (Doc. 23-1). “Joe Hand is entitled to joint and several liability[8]for damages against [Beech] in an individual and corporate capacity.” Joe Hand Promotions, Inc. v. Blanchard, 2010 WL 1838067, at *3 (S.D. Ga. May 3, 2010).

Based on the facts before it, the Court finds that it is undisputed that Joe Hand has shown that Defendants did in fact intercept and publish UFC 150 in the commercial establishment without receiving authorization from Joe Hand, which the Defendants do not dispute. The Court notes the Defendants’ argument that they paid Dish TV for UFC 150, however, the fact remains that the Defendants did not obtain the proper commercial exhibition rights from Joe Hand, who held these rights exclusively. Thus, Defendants are liable for the unauthorized broadcast of the UFC fight. Accordingly, Joe Hand’s motion for summary judgment as to liability on Count 1, brought under 47 U.S.C. §605, is GRANTED.

Jon Jones Mug ShotMugshot courtesy of the Bernalillo County Metro Detention Center.

Update April 28, 2015 – the UFC has now acted and they have stripped Jon Jones of his title and suspended him indefinitely. 

____________________________________________________

With Jon Jones facing felony hit and run charges after he allegedly fled the scene of a motor vehicle collision in Albuquerque this weekend (Jon Jones Arrest Warrant Affidavit), the pressing question is whether he will still be allowed to participate in his scheduled UFC light heavyweight championship defense against Anthony Johnson at UFC 187 in Las Vegas.

Innocent until proven guilty, right?  Not necessarily.  While this is a tenet of criminal law, in the contractual relationship between the UFC and Jon Jones and the regulatory relationship between the Nevada State Athletic Commission and fighter there is authority to pull the plug if the will is there.

The UFC requires athletes to comply with a broad “Fighter Conduct Policy” which prohibits not only “criminal offences“, but also “conduct that undermines or puts at risk the integrity or reputation of the UFC” and lastly “conduct that undermines or puts at risk the organization or promotion of a UFC event“.  Breaches of this policy allow the UFC to “impose disciplinary measures on the fighter as warranted in its sole discretion“.

Similarly, the Nevada State Athletic Commission enjoys powers to suspend the licence of an unarmed combatant who is simply “arrested” for a crime involving moral turpitude.  Specifically NAC 467.887 reads as follows “A license issued by the Commission may be suspended if the holder is arrested or convicted on a charge involving moral turpitude“.

Not only can the NSAC suspend Jones’ licence if they conclude he misled them in the wake of the Daniel Cormier press conference fight, but they can also seek to rely on the above legislation (although it can be argued that felony hit and run does not meet the definition of a crime of moral turpitude) if they want to draw a line in the sand.

Both the NSAC and the UFC have options to explore if they want there to be consequences for Jon Jones’ actions.  The question is do these organizations want to pull the trigger or would they rather leave UFC 187 undisturbed?

With Jon Jones facing felony charges based on allegations that he was involved in a hit and run motor vehicle collision the next question is what is required under New Mexico law to prove the case against him?  Here is a quick breakdown –

Section 66-7-203 NMSA 1978 requires every motorist to stay at the scene of any collision involving injury, death or property damage and to “give his name, address and the registration number of the vehicle he is driving“.

Failure to do so in cases involving death or personal injuries violates section 66-7-201 and, depending on the level of injury can result in either felony or misdemeanor charges.  The Section reads as follows:

66-7-201. Accidents involving death or personal injuries.  
A.   The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible, but shall then immediately return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 66-7-203 NMSA 1978. Every such stop shall be made without obstructing traffic more than is necessary.   
B.   Any person failing to stop or to comply with the requirements of Section 66-7-203 NMSA 1978 where the accident results in great bodily harm or death is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.   
C.   Any person who knowingly fails to stop or to comply with the requirements of Section 66-7-203 NMSA 1978 where the accident results in great bodily harm or death is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.   
D.   Any person failing to stop or comply with the requirements of Section 66-7-203 NMSA 1978 where the accident does not result in great bodily harm or death is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Subsection A of Section 31-19-1 NMSA 1978.   
E.   The director shall revoke the license or permit to drive and any nonresident operating privilege of the person so convicted.   
  History: 1953 Comp., § 64-7-201, enacted by Laws 1978, ch. 35, § 390; 1987, ch. 97, § 2; 1987 ch. 101, § 1; 1989, ch. 383, § 1. 
_______________________________

Misdemeanor charges are reserved for cases “where the accident does not result in great bodily harm“.  If the case does involve “great bodily harm” it can lead to a fourth degree felony with a penalty of up to “eighteen months imprisonment.”.  If it can further be proven that a defendant “knowingly” failed to stay at the scene the charges can be upgraded to a third degree felony with penalties increasing up to three years of imprisonment.

Based on the media reports it sounds like Jones may be facing the more serious of the felony charges as his reported post collision conduct can be used to prove the ‘knowingly‘ element of the more serious charge.

The bigger issue will be whether the reported broken arm is enough to constitute “great bodily harm” which is defined as follows:

“”great bodily harm” means an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body“.

If the injury at the very least leads to a “protracted impairment of function” then this element can be met.

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