Affliction Motion to Dismiss Denied

January 26, 2010

J.R. Riddell of Sherdog.com reports that Affliction’s motion to dismiss M-1’s claims of breach of contract have been denied by a federal judge in Los Angeles.

On Monday, Affliction’s legal team urged the judge to dismiss a number of Emelianenko and M-1’s breach of contract claims, arguing that two of the three agreements at issue in the suit had expired well in advance of the “Trilogy” show. Emelianenko and M-1 Global’s legal team countered that the contracts had not expired, pointing to evidence that Affliction actively co-promoted the event with M-1, which in their view suggests that Affliction was acting as if the contracts remained in effect.

Bassiri, Affliction’s counsel, said that the judge denied the motion because at this early stage of litigation, she was legally required to accept Emelianenko’s allegations as true. The judge did not, however, make any binding decisions regarding whether or not Emelianenko’s claims were factually accurate.

Payout Perspective:

MMAPayout.com was the first to break word of the impending suit back in October and followed up with some detailed analysis of the situation which can be found below. Essentially the Fedor and M-1 camp filed a breach of contract suit against Affliction Entertainment and other unnamed parties citing failure to perform certain contractually obligated services.

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.

2 Responses to “Affliction Motion to Dismiss Denied”

  1. Stan Kosek on January 26th, 2010 4:15 PM

    Not 100% sure on the procedural steps of this case, but if this was the initial, run-of-the mill MTD, it’s not surprising it got denied. Those have such high standards to get granted, basically the non-moving party is given every benefit of the doubt for the suit to go forward.

  2. jv on January 27th, 2010 8:53 PM

    Affliction has a problem in that either the contract was in effect in which case the law suite moves ahead. Or it wasn’t in effect in which case they would have committed massive fraud by selling tickets to a fight they knew they could not put on. Pick your poison.

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