Update May 5, 2015 – As expected two separate class actions have been filed, the first in Nevada, the second in California. TMZ has obtained a copy of the filings and these can be found here
In one of the most profitable prize fights in history, reports have surfaced that Manny Pacquiao suffered a shoulder injury and was not in top form for the bout. Generally, athletes performing through injury is not newsworthy, however, it can be where they mislead athletic commissions about their pre bout health.
To this end, it is reported that Pacquiao’s injury occurred pre bout and was not disclosed to the Nevada State Athletic Commission. Specifically, Newsday reports as follows:
Nevada State Athletic Commission chairman Francisco Aguilar disputed a claim by promoter Bob Arum that the commission was aware of the injury before a bout that was expected to generate well over $300 million in revenue….
The last opportunity to request permission for medical treatment was at the Friday afternoon weigh-in, when fighters fill out paperwork before stepping on the scales.
“On that questionnaire,” Aguilar said, “one question is: ‘Do you have an injury in your shoulder?’ He checked ‘No.’ Had he checked ‘Yes,’ our doctors could have followed up with additional questions
This is an apparently untruthful statement as “Pacquiao’s camp is claiming he had a right shoulder injury that he suffered three to four weeks before the fight”.
Now Kevin Iole reports that there is ‘no doubt’ that litigation will be forthcoming by fans who feel short changed. Kevin opines that “there will be lawsuits filed by fans who paid extraordinarily inflated prices, which will not only make Mayweather and Pacquiao rich but which lined the pockets of the promoters and the casino, as well.”
So what is required to prove fraud in Nevada in such anticipated lawsuits? The Supreme Court of Nevada, in Bulbman Inc. v. Nevada Bell set out the following test:
A plaintiff has the burden of proving each element of fraud claim by clear and convincing evidence. Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115 (1975). These elements are:
1. A false representation made by the defendant;
2. Defendant’s knowledge or belief that the representation is false (or insufficient basis for making the representation);
3. Defendant’s intention to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation;
4. Plaintiff’s justifiable reliance upon the misrepresentation; and
5. Damage to the plaintiff resulting from such reliance.
A Plaintiff who paid top shelf prices for this fight can arguably meet these elements if they are persuasive that they would not have purchased tickets or the record priced PPV for the bout had they known about the injury. It will not be an easy burden to meet, however, as “justifiable reliance, under Nevada law, requires a showing by a plaintiff that the alleged false representation played a material and substantial part in leading the plaintiff to adopt his or her particular choice“. The biggest flaws, from my perspective, is that I’m not aware of any authority stating that athletes have a duty to inform members of the public of their injuries and further there is no evidence that Pacquiao made any misrepresentation directly to potential litigants (other than the regulator).