UFC 249 took place this weekend. The first major sport to get back to business following the Covid-19 public health related lockdown. A bold and controversial move. Despite one athlete being removed from the card after he and his cornermen tested positive for Covid-19 the event appears to have been a success with even the President of the US cutting a promotion cheering on the return of sports.
Being first to put on a sports event in the midst of an ongoing pandemic comes with heightened scrutiny. One the tools the UFC used to pull this event off was an “Event Participation Agreement” that Zuffa, the UFC’s parent company, required those in attendance to sign. Or as MMA manager and California based lawyer Sam Spira called it “the most oppressive release and waiver in the history of civilization“.
There were layers of issues revealed as this matter came to light. Here is a summary along with my thoughts on some of them –
Non Disparagement or Something More?
It all started with a tweet. Showtime Sports executive Stephen Espinoza noted that the lack of any participant criticism about health and safety protocols at UFC 249 was due in part to a heavy handed contract noting “It’s because they were required to sign a document which says that they can lose their whole purse and bonuses if they say anything negative about the COVID protocols.“.
This brought a quick reply from UFC president Dana White who told Yahoo Sports Kevin Iole “It’s called an anti-disparagement clause and if I know what that is, that scumbag (Espinoza) is a lawyer and you would think he should know what that is…If a fighter says something that isn’t true — if he says we didn’t test anyone for this — that would [violate the agreement],” he said. “But if he said something that was true, his opinion, then that is different.”.
At the UFC’s post fight press conference White doubled down with this stance and his attack on Espinoza noting “First of all, there’s something in the contract for disparagement. There’s a disparagement clause in there that’s in all of our contracts. Isn’t that creepy little f*cker a lawyer? Isn’t that creepy little f*cking goofball a lawyer?. Does he not know what disparagement means? If you disparage the company. I’m not even a f*cking lawyer, and I know the answer to that question. It’s disparagement. It would be like if you came out and said, ‘They never tested me, the UFC never tested me for the coronavirus.’ But if you came out and had something critical to say about the testing that was true, that wouldn’t be disparagement.”
White’s stance does not tell the whole story. As the New York Times reported U.F.C. 249 fighters could lose significant amounts of money if they “suggest or communicate” that the event is being held “without appropriate health, safety or other precautions,”
Frankly the whole clause speaks for itself. Yes it prohibits defamation and disparagement. The UFC does not need a contract for such legal protection. The common law prohibits such conduct by default. The controversy arises by what comes next with the contract stating “the Participant will not suggest or communicate to any person or entity that the Activities have been or will be held without appropriate health, safety or other precautions, whether relating to COVID-19 or otherwise“.
Here is the full clause:
The Participant shall not, and shall cause its affiliates, agents and representatives
not to, defame or disparage any of the Released Parties in any medium whatsoever in connection with the
Activities. Without limiting the generality of the foregoing, the Participant will not suggest or communicate
to any person or entity that the Activities have been or will be held without appropriate health, safety or
other precautions, whether relating to COVID-19 or otherwise. If the Participant is a Fighter, the Participant
hereby acknowledges and agrees that in the event that the Participant breaches this Paragraph 7, the
Company may revoke all or any part of any prize monies or awards won by the Participant in connection
with the Activities, including, but not limited to, purses, win bonuses, other fight-related bonuses and
event-based merchandise royalties.
Fighters had to sign the agreement. But, as ESPN’s Marc Raimondi reported, “media in attendance” did as well.
When media landed the job to report on the first major sports event in a pandemic the controversy speaks for itself that signing a contract with the promotion they are covering to “not suggest or communicate to any person or entity that the Activities have been or will be held without appropriate health, safety or other precautions, whether relating to COVID-19 or otherwise” is problematic. Health and safety protocols are of key public interest. These can resonate well outside the bubble of fans seeking coverage of the sport. It is hard to understand why any media in attendance would agree to such restrictions.
No Promises as to Safety
It is clear that the UFC took health and safety measures over and above those that would be in place for a typical event. However, from an official perspective, no promises were made about these. The contract notes that
“The Participant acknowledges and agrees that no representations or warranties of any kind whatsoever have been or will be made to the Participant by the Company…with respect to the Activities…including, but not limited to, regarding the testing of other participants, attendees and/or service providers or sanitizing protocols being used in connection with the Activities or the Accommodations…or compliance with social distancing and other guidelines issued by the Center for Disease Control and Prevention (the “CDC”) or any other regulatory or self-regulatory organizations in respect of COVID-19 and that the Participant is engaging in the Covered Matters at the Participant’s own risk.”
Even Grandma Should Waive Her Rights
The broad contractual language of whose rights were purportedly waived was also noteworthy.
Fighters had to waive their right to sue “for any injury, illness, damage, loss or harm to any Releasing Party… whether in connection with COVID-19 or otherwise, resulting or arising out of or in any way related to the Participant’s preparation for, travel for, participation and
appearance in, provision of services at and/or attendance at the Activities, including, but not limited to, in connection with any of the Accommodations”
The contract asked that the Participant not only waive these rights for themselves but also waive these rights “on behalf of the Participant’s spouse, domestic partner, children, parents, grandparents, step-parents, step-children”.
A party to a contract cannot waive the rights of non parties and enforcement against this broad class would be a problem but the heavy handed ask stands out.
Waivers often cover claims of negligence. This contract went further and sought to protect the UFC of even gross negligence. Specifically it included “any claims based on negligence or gross negligence that they may have against the Released Parties, as a result of any injury,
illness, damage, loss or harm to any Releasing Party or such Releasing Party’s property, or the Releasing Party’s death or disability, whether in connection with COVID-19“.
Normally a contract has something to offer for both parties. Here the parties waiving their rights gave up a lot. What did they gain in return? As the contract explains they were given the ability “TO ATTEND, PROVIDE SERVICES AT AND/OR PARTICIPATE IN UFC 249
AND OTHER EVENTS AND ACTIVITIES RELATED THERETO”.
Fighters under contract with the UFC have already contracted to participate at various events that the promoter will put on. One can question whether a contract this one sided that strips further rights is offering anything further in return for a combatant already under a promotional agreement.