Affliction Files Motion to Dismiss Fedor Litigation, Plus an Examination of Allegations in Suit
November 12, 2009
MMAPayout previously discussed the basic facts surrounding the Emelianenko v. Affliction litigation and has now learned that Affliction filed what is known in federal court as a Rule 12(b)(6) motion to dismiss the case on the ground that Emelianenko and M-1 (to simplify, “Fedor”) have failed to state a claim upon which relief can be granted, basically arguing that even if the court looks at all the facts in the light most favorable to the plaintiffs, Fedor still has not made a legitimate case.
Affliction’s motion to dismiss in essence argues that the lawsuit is frivolous.
Affliction’s Tom Atencio told MMAPayout.com:
“Affliction landed a serious blow to the Fedor and M-1 lawsuit by filing a motion to dismiss in federal court in response to the Russians’ complaint only eight days after being served. . . . The counter by Affliction goes to show Affliction does not intend to rollover and be extorted by the Russian visitors and how frivolous and meritless Affliction considers the allegations of their complaint.”
Before examining the nature of Affliction’s motion to dismiss the lawsuit, it’s worth providing a basic analysis of Fedor’s allegations.
Although the complaint itself is quite complex, it actually can be easily summarized in lay terms. Fedor had a three-fight contract with Affliction, and fought two of the three fights, and agreed to fight Josh Barnett to close the contract. Barnett failed a steroids test, Affliction had discussions with prospective replacements for Barnett (e.g., Vitor Belfort and Brett Rogers) but ultimately reached an agreement with UFC that would permit Affliction to once again sponsor UFC fighters so long as it agreed to exit the promotion game.
All contracts have what is called an implied covenant of good faith, and Fedor argues that Affliction, instead of satisfying its obligation of booking a third fight for Fedor by finding a suitable replacement for Barnett, chose the path of least resistance by returning to UFC and cancelling the third show altogether, leaving the contracts with Fedor unsatisfied.
The substantive issues in the lawsuit are interesting: in contract law there is what’s known as the excuse of impossibility, and here the argument would be that Barnett’s failing the steroids test rendered impossible the satisfaction of Affliction’s obligations on the Fedor contracts, with Fedor arguing that Barnett’s negative drug test was used as a mere pretext to allow Affliction to exit the promotion end of MMA and stiff Fedor.
But then we come to Affliction’s motion to dismiss, which throws a monkey wrench into the entire substantive analysis. You see, Fedor argues that Affliction breached its contracts by cancelling Affliction: Trilogy and reaching agreement with UFC in July 2009.
Affliction’s motion to dismiss, however, points to the language of the contracts, which calls for termination of the agreements on either (i) March 31, 2009; or (ii) the conclusion of the third fight, with the contracts specifically stating that they terminate upon the earlier of the two dates. Since there was no third fight, the earlier date was March 31, 2009, and Affliction argues in its motion to dismiss that it cannot be alleged to have breached a contract in July 2009 that had expired four months earlier.
Although this is an attractive argument, there are many complexities to the suit, including issues of equity (i.e., fairness) in which Fedor could conceivably recover foreseeable damages suffered by his reasonably relying upon promises made by Affliction, so I do not expect this motion to dismiss to entirely end the matter.
Moreover, the language Afflcition points to in its motion to dismiss has wriggle room that could be favorable to Fedor: the contract cancels on the earlier of the two dates “unless the term of the promotion agreement or any extension thereto is . . . extended further pursuant to this Agreement or pursuant to a separate writing . . . .” I would expect some — perhaps very creative — arguments from Fedor that indeed the contract term had extended either through explicit writing, oral agreement, or even something known in contract law as course of conduct of the parties.
Stay tuned for an examination of Fedor’s upcoming response to Affliction’s motion to dismiss Emelianenko v. Affliction.