Archive for March, 2017

Reasons for judgement were published recently by the US District Court, W.D. Arkansas, Texarkana Division granting default judgement for the commercial piracy of UFC 165.

In the recent case (Joe Hand Promotions, Inc. v. Moore) the Defendant operated a commercial establishment and aired UFC 165 without paying the commercial sub licencing fees to the Plaintiff.  The cost would have been $950. The Plaintiff paid for a private investigator to attend and noted between 7 and 11 patrons present during the airing of the event.

The Court found statutory damages for the cost of the program were appropriate and enhanced damages at triple that amount were warranted given that the piracy was intentional.  In assessing total damages at $3,800 District Judge Susan Hickey provided the following reasons:

The undisputed evidence in this case demonstrates that Moore violated 47 U.S.C. § 605. The cost to King of Wings Bar & Grill for the sublicensing agreement would have been $950.00. The Court finds that the amount Moore should have paid for a sublicensing agreement is the proper amount of statutory damages. See J & J Sports Prods., Inc. v. Brewster “2” Café, LLC, 2014 WL 4956501, at *5 (E.D. Ark. Oct. 2, 2014).

The facts also demonstrate that the violation was committed willfully and for the purposes of financial gain. The violation was willful because “intentional acts are required to pirate a closed-circuit broadcast; the unscrambled airwaves or cable transmission do not just happen.” J & J Sports Prods., Inc. v. Diaz De Leon, 2012 WL 79877, at *3 (W.D. Ark. Jan. 11, 2012) (quoting Joe Hand Promotions, Inc. v. Cat’s Bar, Inc., 2009 WL 700125, at *3 (C.D. Ill. 2009)). Commercial advantage or financial gain can be reasonably inferred from the facts. Given that King of Wings Bar & Grill is a commercial establishment, it may be reasonably inferred that Moore’s actions in airing the Program were for purposes of direct or indirect commercial advantage by drawing customers into the business. See id.

Because the Court has found that the violations were willful, Plaintiff is entitled to enhanced damages. The purpose of these enhanced damages is to punish violations and simultaneously deter future piracy. Brewster “2” Café, LLC, 2014 WL 4956501 at *5. Moore would have no incentive to cease the violation if the penalty were merely the amount that he should have paid for a sublicensing agreement. See Entertainment by J & J, Inc. v. Al-Waha Enterprises, Inc., 219 F. Supp. 2d 769, 776 (S.D. Tex. 2002). In awarding enhanced damages, Courts generally award anywhere from three to six times the statutory damages award. Joe Hand Productions, Inc. v. Feil, 2013 WL 2936389 (D. Minn. June 14, 2013).

The Court finds that the appropriate amount of enhanced damages is three times the award of statutory damages, or $2,850.00. These damages are appropriate given that there is no evidence that King of Wings was filled to capacity, and Joe Hand has not shown that Moore has a history of showing pirated events. See Brewster “2” Café, LLC, 2014 WL 4956501 at *6. These damages are sufficient to deter future signal piracy, while not so harsh as to seriously impair the viability of Moore’s business.

A typical narrative seen in commercial Pay Per View piracy litigation is a Plaintiff seeking substantial damages disproportionate to any harm caused to them with Courts rarely awarding the hefty damages sought.

In a sensible judgement released earlier this month the US District Court, D. New Jersey struck a reasonable position in awarding a total of $5,411 in damages and lawyer fees after the piracy of UFC 183.

In the recent case, (Joe Hand Promotions, Inc. v. Batra) the Defendant Lounge displayed UFC 183 without paying the commercial sub licencing fees to the Plaintiff.  The cost would have been $1,200.  The Defendant also commercially exploited the event collecting a cover charge, having a one drink minimum and requiring patrons to purchase a hookah.  Based on a head count of patrons present an investigator deemed the Defendant would have brought in just over $2,000 in revenues based on this.

The Plaintiff sued and obtained default judgement seeking $35,ooo in damages.  The Court found this request disproportionate but did award statutory damages at the actual cost of the licence and enhanced damages equivalent to the estimated profits for the lounge.  Additionally the Defendant was made to pay the Plaintiff’s lawyers fees.  In finding this result appropriate District Judge John Michael Vazquez provided the following reasons:

Here, Plaintiff seeks $10,000 in statutory damages for the initial violation. Plf’s Br. at 3-4. Plaintiff alleges that it is impossible to determine the full extent of profits it lost from Defendants’ conduct. As a result, Plaintiff argues that an award of $10,000, the statutory maximum, would serve as a deterrent, account for additional profits Defendants’ gained “as an indirect result of their unlawful actions,” and compensate Plaintiff for its loss of goodwill and reputation. Id. Recent cases within this district, however, conclude that an award of statutory damages pursuant to Section 605 should approximate actual damages. See, e.g., Directv, LLC v. Alvarez, No. 15-6827, 2016 WL 6650842, at *3 (D.N.J. Nov. 9, 2016); Premium Sports, Inc. v. Silva, No. 15-1071, 2016 WL 223702, at *2 (D.N.J. Jan. 19, 2016); Joe Hand Promotions, Inc.,2013 WL 1007398, at *7; J & J Sports Prods., Inc., 2012 WL 525970, at *4. “To determine actual damages, an appropriate starting point is to assess the cost of the licensing fee the defendants ought to have paid in order to broadcast legally.” Premium Sports, Inc., 2016 WL 223702, at *2 (citation omitted). Plaintiff states that an establishment with the capacity of 150 patrons, the approximate capacity of Aladdin, would have been required to pay $1,200 for a sublicense fee. Plf’s Br. at 2. As a result, the Court will award Plaintiff $1,200 in statutory damages.[4]

Plaintiff also seeks $25,000 in enhanced damages, arguing that this amount “will fairly achieve the statutory goals of restitution and deterrence.” Plf’s Br. at 4. To calculate enhanced damages courts within the district consider the following five factors: (1) whether the defendant has intercepted unauthorized broadcasts repeatedly and over an extended period of time; (2) whether it reaped substantial profits from the unauthorized exhibition in question; (3) whether the plaintiff suffered significant actual damages; (4) whether the defendant advertised its intent to broadcast the event; and (5) whether the defendant levied a cover charge or significant premiums on its food and drink because of the broadcast. Joe Hand Promotions, Inc., 2013 WL 1007398, at *7. Plaintiff provides no evidence regarding the first three factors. Plaintiff, however, alleges that Defendants advertised the illegal broadcast on Aladdin’s Twitter page. Plf’s Br., Attachment C. Moreover, Plaintiff’s auditor states that during the night of the broadcast there was a $20 cover charge, a one drink minimum, and a required hookah purchase, which totaled $32.50. Id., Attachment A. The auditor additionally states that he took three head counts while at Aladdin and the highest count was 62 people. Id. The Court will award enhanced statutory damages of $2,015, which is equal to the highest count multiplied by $32.50. This amount is roughly equal to the amount that Defendants likely took in from the illegal broadcast and is sufficient to deter future conduct and provide restitution.

For the reasons set forth above, Plaintiff’s motion for default judgment is GRANTED. Accordingly, the Court will enter judgment against Defendants in the amount of $5,411, representing $1,200 in statutory damages, $2,015 in enhanced damages, $1,600 in attorney’s fees, and $596 in costs. An appropriate order accompanies this opinion.

New York State Athletic Commission chief medical officer and practicing neurologist Dr. Sethi published an article in the latest edition of the South African Journal of Sports Medicine addressing best practices for medical stoppages of boxing bouts with the sensible conclusion that it is better to err on the side of safety.

In the article, titled “Good versus bad medical stoppages in boxing: Stopping a fight in time” Dr. Sethi reaches the following conclusion after addressing what he believes to be considerations ringside physicians should keep in mind when stopping a bout –

It is recommended that the above proposed best practice guidelines be debated vigorously by ringside physicians and the wider scientific community and that evidence-based guidelines on medical stoppages be developed by the medical community in conjunction with the professional boxing governing bodies. Boxing can be made safer but it shall be foolhardy to forget that frequently there is a very fine line between a good medical stoppage (i.e. medical stoppage done at the right time during the bout and for the right indication) versus a bad medical stoppage (i.e. medical stoppage done either too late, too prematurely, or for the wrong indication). It is far better to stop a fight early rather than too late. A ringside physician should never forget that in boxing one punch can change everything.

The full article can be found here – Dr. Sethi Artilce re Medical Stoppages of Boxing Bouts

It is well understood that the UFC-USADA custom tailored anti-doping policy (“ADP”) generally prohibits Intravenous Infusions.  What is not quite as well understood are the exceptions to this rule and the need to comply with overlapping regulatory requirements.

After UFC 209 it was revealed that Alistair Overeem used an IV prior to his bout against Mark Hunt.  As transcribed by MMAJunkie, at the post fight press conference Dana White noted that

(He was) throwing up and all the other pleasantries of food poisoning for 24 hours. He was in the hospital, we brought him home, and then we had to bring him back to the hospital. They had to fill him with bags of fluids and IVs, and at one point he was afraid to leave his room because he couldn’t stop throwing up and everything else.

Overeem went on to confirm as follows:

We went through all the steps necessary…I got really sick and yesterday at the weigh-ins I was out. I was low-energy. I put on my acting face, but I had like zero energy. If I felt today as I felt yesterday I would not have been able to perform. I went to the hospital, got an IV, took something to help me sleep. I could get some food in yesterday before sleeping and recovered kind of OK“.

So what are the “steps necessary” Overeem is alluding to?  There is overlapping regulatory jurisdiction for this bout, namely the rules of UFC/USADA’s ADP and those of the Nevada Athletic Commission.

The ADP adopts the WADA list of prohibited methods which bans the following methods of chemical and physical manipulation –

wada-prohibited-methods-screenshot

So, if Overeem’s IV use was administrated legitimately “in the course of hospital admission” it is not a rule violation nor is a Therapeutic Use Exemption (“TUE”) needed.

If his IV use was out of hospital then he could request a TUE, either immediately or retroactively, for its use.

Turning to Nevada’s rules things differ somewhat.

Nevada recently overhauled their anti-doping regulations and specifically adopted WADA’s prohibited ‘methods‘ so they too generally ban IV use.

However, in the overhaul, Nevada carved out a restriction to granting retroactive TUE’s.  Specifically Nevada stripped the NAC of power to grant a retroactive TUE for a bout which has already taken place with the rule reading as follows:

nac-retro-tue-rule

If Overeem used his IV outside of hospital, and if he was not granted a TUE for its use ahead of time that would amount to an anti doping violation under Nevada rules and one that cannot be remedied.

 

An interesting article was published in the latest edition of the International Journal of Pathology and Clinical Research diagnosing what is believed to be the first known case of an individual having Chronic Traumatic Encephalopathy who did not have a history of concussions.

In the article, titled “Chronic Traumatic Encephalopathy-like Neuropathological Findings Without a History of Trauma” a 45 year old man who was found dead in his sleep had his brain examined post mortem and CTE like changes were revealed.  This was noteworthy to researchers as the patient had no known history of head trauma.  The authors note as follows

To our knowledge, this is the first description of a patient with neuropathological features of CTE-MND in the absence of a history traumatic brain injury. Interestingly, despite cortical tau pathology, our patient never exhibited cognitive impairment, which speculatively could be explained by the relative sparing of the nucleus basalis of Meynert. This highlights the uncertainty surrounding the pathogenesis and pathophysiology of CTE and underscores the need for further detailed studies to elucidate the causative role of trauma. Nevertheless, our case report has several important limitations. For example, the lack of a trauma history comes only from the recollection of the patient’s wife and early life subconcussive blows cannot be entirely excluded. There are also inherent limitations to drawing conclusions from the results of a single patient.

To date, repetitive traumatic brain injury has been shown to be associated with no neuropathological changes, with CTE alone, with -CTE and another neurodegenerative disease, or with non-CTE neurodegeneration. Since CTE is a postmortem diagnosis, the majority of samples have come from brains of symptomatic individuals referred by family; these individuals are more likely to demonstrate some type of neuropathology thus introducing a selection bias. Our case adds to this complexity given the observation that CTE-like changes can occur in the absence of any known head injury; casting doubt that trauma is always the inciting etiological factor. Future studies should assess whether CTE-like pathology is prevalent in non-concussed patient populations.

The full article can be found here.

 

Earlier this year Mark Hunt sued UFC parent company Zuffa, Dana White and Brock Lesnar alleging a host of causes of action namely

  1. Unlawful Racketeering in violation of Federal law
  2. Unlawful Racketeering in violation of Nevada state law
  3. Fraud
  4. Obtaining Hunt’s Services (to fight Lesnar) under false pretenses
  5. Breach of Contract
  6. Breach of Covenant of Good Faith and Fair Dealing
  7. Negligence
  8. Unjust Enrichment

As first reported by Steven Marrocco Zuffa is now swinging back filing a motion to dismiss which argues the lawsuit is “fatally defective”.

The Motion summarizes the alleged flaws in Hunt’s case as follows –

motion-to-dismiss-screenshot-1

motion-to-dismiss-screenshot-2

The full Motion to Dismiss can be found here – ufc-motion-to-dismiss-hunt-doping-lawsuit

Today I had the pleasure of appearing on Calgary’s News Talk 770 with Rob Breakenridge where we discussed Quebec shutting down amateur Brazilian Jiu Jitsu competitions as illegal ‘prize fights‘ along with a host of other legal issues in Canadian combat sports.

You can find the full interview here.

For those visiting for the first time after listening, welcome!

Here are some quick links further discussing the topics canvassed today for your convenience –