Court denies World of Boxing’s request for Wilder emails re Meldonium in continuing legal drama

March 21, 2018

The United States District Court in Southern New York has denied a Motion to Compel in the World of Boxing/Alexander Povetkin lawsuit against Deontay Wilder.  Previously produced documents from Wilder’s attorney were determined to be work product by the Court.

The case has a long and winding history and while a jury determined that Povetkin had Meldonium in his system post-January 2016, the legal issues related to $7.15 million still held in escrow as well as allegations that Wilder breached his contract.  A breach of contract carries liquidated damages of $2 million.

Order on Motion to Compel by JASONCRUZ206 on Scribd

Central to the latest legal wrangling is a Motion to Compel documents originally filed last year by World of Boxing and Povetkin (“WOB”).  The motion was stayed (held off on a decision) until the end of last February’s trial.  The Court has now ruled on the issue and denied WOB from receiving emails from Wilder’s camp which discuss Meldonium.

The issue concerns 15 emails sent by Wilder’s attorney John Wirt after it was discovered that Povetkin tested positive for Meldonium.  Wirt has sent a letter to the escrow agent holding the purse money indicating that it not be released until resolution of the matter since it was Wilder’s position that Povetkin breached the Bout Agreement due to his positive drug test.  WOB objected to the letter which precluded the release of funds.

The emails were originally produced in written discovery but when WOB produced them at deposition, Wilder invoked a “claw back” provision which allows for the return of documents deemed attorney-client or work product.  On its privilege log, a list of documents withheld which lists the reason for not producing, it noted that the emails were attorney-client privilege.

Wirt’s emails were not sent to Wilder but his reps including Lou DiBella and Al Haymon.

According to the Court,  “The Wirt Email analyzes the WOB Parties’ mid-May [the fight was set to take place in late May 2016] explanation for the failed drug test that is at the heart of this dispute and discusses possible responses to it. Wirt recommends a course of action to the individuals receiving his email.”

Notably, there are subsequent emails from Shelly Finkel (Wilder’s co-manager) with his thoughts and the email is to employees of Wilder’s promoter, Lou DiBella.

WOB argued that the emails were discoverable because they were labeled as attorney client privileged and not work product.  Furthermore, they were not prepared in further anticipation of litigation which is a requisite in protecting a document via work product.  WOB argued that in deposition testimony by DiBella and Alex Dombroff, they were not thinking of a lawsuit.

The Court indicated that it could make the decision to deem the documents work product even if Wilder did not.  Secondly, it disagreed with WOB’s argument.  The Court writes that Wirt’s email was sent to protect the interests of Wilder in the prospect of litigation as Povetkin had failed a drug test and there was potential for the fight to be called off.  Moreover, Wirt had to protect his client’s interest with respect to the escrow money.

After an “in camera” [looking at the documents] review of documents, the Court determined that the emails were work product. Additionally, they stated that WOB did not show a “substantial need” for the documents and the Court determined that the emails were protected under work product.

Payout Perspective:

This case seems to be far from over as the fight over which side breached the Fight Contract and who should receive the $7.15 million in escrow.  Wilder was set to make over $4.5 million while Povetkin was going to make $1.9 million.  The winner would have earned an additional $715,000.  However, Povetkin’s promoter, who made the successful purse bid, would like the money back.  In addition, they claim Wilder breached his agreement to travel to Russia despite the news of Povetkin’s drug test.  The contract indicates a liquidated damages penalty of $2 million.  One has to wonder the importance of the emails as WOB has seen the contents.  It’s a matter of being able to utilize them in evidence.  Since the Court has determined them to be work product, they cannot be used at all.

MMA Payout will keep you posted.

Bantamweight flagged for potential USADA violation

March 20, 2018

UFC bantamweight Augusto Mendes has been notified by USADA regarding a potential violation from an out-of-competition sample collected on March 7, 2018.  His upcoming fight with Merab Dvalishvili at UFC Fight Night 128 has been scrapped.

Per the web site:

The UFC organization was notified today that the U.S. Anti-Doping Agency (USADA) has informed Augusto Mendes of a potential Anti-Doping Policy violation stemming from an out-of-competition sample collected on March 7, 2018.  Due to the proximity of Mendes’ upcoming scheduled bout at UFC FIGHT NIGHT: BARBOZA vs. LEE in Atlantic City, New Jersey on April 21, 2018 against Merab Dvalishvili , Mendes has been removed from the card and the UFC is currently seeking a replacement.

USADA, the independent administrator of the UFC Anti-Doping Policy, will handle the results management and appropriate adjudication of this case involving Mendes. Under the UFC Anti-Doping Policy, there is a full and fair legal process that is afforded to all athletes before any sanctions are imposed.  Additional information will be provided at the appropriate time as the process moves forward.

Payout Perspective:

The 35-year-old last fought in April 2017 in a loss to Aljamain Sterling at UFC on Fox:  Johnson vs. Reis.  He is 1-2 in the UFC but also an accomplished BJJ player.  This is Mendes’ first flagged test which could lead to a 2-year suspension.

ESPN Top Rank Boxing musters 488K viewers Saturday night

March 20, 2018

ESPN Top Rank Boxing fought some stiff competition in cable TV ratings on St. Patrick Day as it drew 488,000 viewers Saturday night opposite the NCAA Tournament according to Nielsen via ShowBuzz Daily.

The event featured Michael Conlan as he faced David Berna in a super bantamweight matchup in New York.  Conlan dispensed of Berna in just the second round.   The Irish fighter moves to 6-0.

Also on the telecast, Oleksandr Gvozdyk defeated Mehdi Amar to win the vacant interim light heavyweight titled.

The main event featured Jose Ramirez as he defeated Amir Imam to win the WBC vacant junior welterweight title.

Payout Perspective:

The telecast on ESPN Saturday night went up against a slate of NCAA second round tournament games on Saturday including Houston-Michigan which topped the night on cable Saturday on TBS with over 3.8 million viewers, Florida-Texas Tech on TNT which drew over 2.8 million and Loyola-Chicago and Tennessee on TNT which drew 2.85 million.

Calvillo claims loss of Body Armor sponsorship after positive test for marijuana

March 20, 2018

Cynthia Calvillo claims that Body Armor dropped her as a sponsor as a result of her drug-test failure for marijuana at UFC 219.  Calvillo is serving a 6 month suspension from USADA and was given an additional 3 months from the Nevada Athletic Commission for the infraction.

In an interview Monday on The MMA Hour, Calvillo admitted to the use of marijuana which led to a drug test failure after her loss to Carla Esparza.  Calvillo was doled a 6-month suspension by USADA for a test that was over the allowable limit for marijuana and its metabolites.  However, the Nevada Athletic Commission gave her a 9-month suspension and fined her 15% of her fight earnings from December’s bout.

Calvillo stated in her interview that she was told that her usage on Christmas Eve prior to her December 30th fight would be fine.  Calvillo holds a medicinal marijuana card.  In California, where she resides, marijuana use is legal for medicinal and recreational purposes.  However, it is still a banned substance per the UFC Anti-Doping Policy guidelines and the Nevada Athletic Commission.

She believes that her sponsorship with Body Armor was rescinded due to the suspension.

Payout Perspective:

Calvillo’s loss of a sponsorship is unfortunate for the budding star.  It shows that there are companies that may be conservative with the people it chooses to represent it in public.  Notably, Kobe Bryant, the former NBA star was on trial for sexual assault, is a big investor in the company.  Yet, many companies have moral clauses which they may sever a sponsorship due to infractions like this.  Thus, its upon Calvillo to ensure that she does not get into any issues like failing a drug test.

As WBO seeks to move case to arbitration, Trout points out why it should not

March 19, 2018

The Austin Trout case continues in Puerto Rico and MMA Payout gives you an update on the case in which the former contender is suing his promotion including violations of the Ali Act.  The World Boxing Organization is trying to move this case into arbitration citing the fighter contractual agreement.

Trout originally filed this lawsuit in 2015 and due to jurisdictional issues, the case was moved to federal district court of Puerto Rico.

Once in Puerto Rico, the WBO moved the case to arbitration pursuant to the fighter agreement.  Trout argues that the WBO had waived their chance to move the case to Arbitration but failed to do so when the lawsuit commenced.  The lawyers for Trout argue that the WBO did not include this move to arbitration until its Answer to the Amended Complaint which included a Motion to Compel Arbitration.

Trout argues that the arbitration clause that the WBO is seeking to enforce is invalid and thus, not binding.   He also claims that the WBO cannot use arbitration in this case because it would effectively “be both a party and a judge.”

Trout points to the section of the WBO Championshp Regulations Section 34:

Any WBO Participant, including, but not limited to a Boxer, Manager, or Promoter who is or could be affected by a determination of the World Championship Committee who wishes to contest such a determination must, as his or her sole and exclusive remedy, file a Complaint pursuant to the WBO Appeal Regulations.

In all cases the complaint shall be referred to the WBO President, who may attempt for a reasonable period to resolve the complaint amicably. The WBO President may reject a complaint or he may refer it to the Complaints and Grievance Committee which shall determine the complaint or grievance in accordance with the WBO Appeals Regulations.

As Trout points out, this is inappropriate as it would go through two layers of the WBO (President and Grievance Committee) before determining the viability of the dispute.

The appeal process according to the WBO states: “Three persons designated by the President will constitute the WBO Grievance Committee.  They shall not be members of the Executive Committee.  The Members of the Grievance Committee shall be nominated by the President and confirmed by the Executive Committee.”

The committee would determine whether the fighter’s case would go to binding arbitration according to the WBO Agreement.

Trout points out the issue it has with the WBO attempting to move the case to Arbitration:

In a claim in which, apart from the obvious fact that it is a defendant, it is alleged that Defendant WBO engaged in a pattern of corruption by illegally manipulating its ranking system, allegations that could carry criminal charges under the Muhammad Ali Act, defendant WBO pretends to be party and judge.

There is simply no way the arbitration forum would provide a fair opportunity to plaintiff to pursue his claim. There can be no presumption of fairness, to the contrary. This is not a claim between to [sic] boxers or between a boxer and a manager. This is a claim between a boxer and the WBO.

Payout Perspective:

The case presents the issue of whether a violation under the Ali Act could simply be contracted out of through the use of the Arbitration clause.  In this instance, Trout’s lawyers argue that the WBO have waived their right to arbitration and that the clause is invalid.  As outlined by Trout, the process created by the WBO makes it appear unfair for the aggrieved party since they would have to first take up the issue with the President and then a WBO-appointed committee.  The committee would then decide whether the case would go to Arbitration.

Examining the differing clauses, it would seem that Trout should not have signed this agreement as presented.  If not else, he should have sought that the case be tried in court if the WBO Committee could not come to an agreed settlement/resolution of the matter.  This is a case to keep an eye on as the Court has yet to determine whether the case will be sent to arbitration.

In the future, this case may serve as a template if the Ali Act Expansion is ever passed to include combat sports.  One could foresee MMA promotions including contractual language which would allow for the promoter to seek to have any disputes with fighters go to binding arbitration.  One need only look to the UFC Anti-Doping Rules to see that if there is an appeal it goes to binding arbitration.

MMA Payout will keep you posted on the outcome of the Austin Trout case.

UFC Fight Night 127 attendance, gate and bonuses

March 17, 2018

UFC Fight Night 127 took place on Saturday at the O2 Arena in London, England.  UFC Exec David Shaw announced the attendance, gate and bonuses post-event.

Paul Craig, Alexander Volkov, Jan Blachowicz, and Jimi Manuwa earned $50,000 bonuses.  Craig and Volkov earned Performance Bonuses while Blachowicz and Manuwa Fight of the Night.

The event at the O2 Arena drew an announced attendance of 16,274 and a live gate of $2,028,000.  Despite it being a UFC Fight Pass only event and not heavily promoted in the U.S., it was the third-highest gate for a UFC event at the O2 Arena out of 8 events.

Mikey Garcia fight draws 618,000 viewers on Showtime

March 14, 2018

Mikey Garcia’s return to the ring on Showtime Saturday night drew 618,000 viewers on the premium cable network.  The fight against Sergey Lipinets peaked at 689,000 viewers.

Garcia defeated Lipinets via unanimous decision.  The 52-minute fight drew 0.22 viewers in the A18-49 demo.  In comparison, ESPN’s Top Rank Boxing drew a 0.37 audience in the A18-49 demo.

The co-main event featuring super lightweight Kyril Relikh and Rances Barthelemy drew 489,000 viewers peaking at 544,000.  The 52-minute fight drew 0.15 in the A18-49 demo.

Payout Perspective:

Good ratings for the Garcia fight considering it went head-to-head with ESPN’s main event.  Garcia is more of a name but ESPN has more of a viewing audience the premium cable.  Still, Showtime’s ratings reflect an increase in its viewership.  Last week, Deontay Wilder’s fight against Luis Ortiz drew over 1 million viewers.

NAC give Calvillo 3 more months in addition to USADA suspension

March 14, 2018

Cynthia Calvillo received an additional three-month suspension from the Nevada State Athletic Commission per MMA Junkie.  She was fined 15 percent of her disclosed $41,000 purse ($6,150) in addition to $436.08 in attorney’s fees.

USADA suspended Calvillo six-months for an in-competition drug test at UFC 219 that revealed marijuana metabolites in excess of the allowable limit of 180 ng/mL.  However, she was still subject to discipline from the NAC

She must now submit a clean drug test for steroids and diuretics 30, 15 and three days prior to receiving another fight license in Nevada.

Under the USADA suspension, her discipline would have been able to be reduced by three months if she had taken a drug education course.

Payout Perspective:

The additional suspension identifies an issue with double jurisdiction.  Even if Calvillo were to complete an approved drug course from USADA, thus reducing her suspension, the question of whether she can apply for a license in Nevada sooner may be in an issue. According to the Junkie article, she cannot apply for another license until September 30th.  Or, can she fight within 6 months in any state aside from Nevada?  The additional 3 months and fines also reflect the stance Nevada has on the use of marijuana which in itself is controversial.


ESPN scores highest cable boxing ratings in 2018 thus far

March 14, 2018

Top Rank Boxing on ESPN drew over 1 million viewers for its Saturday night telecast featuring Oscar Valdez and Scott Quigg scored 1,082,000 on Saturday night.

The 123-minute telecast drew a 0.37 rating in the A18-49 demo.  According to Nielsen, the Andy Vences-Erick De Leon fight was the highest-rated boxing event on cable for 2018 with a 0.8 share.

The lead-in for Top Rank Boxing on ESPN was the ACC conference championship tournament game between North Carolina and Virginia which led to the highest-rated show on cable TV for Saturday night with over 3.4 million viewers.

(h/t:  ShowBuzz Daily)

Payout Perspective:

Clearly, the ESPN deal is helping Top Rank with exposure of its product.  The ratings for its programming are aided by the lead-ins.  This time around it was the ACC Championship game featuring two top programs which likely helped keep people tuned into the next thing on ESPN that night.  Saturday night exemplified this affect since for most casual fans, we did not know these fighters.  It did go up against Showtime’s event which aired at about the same time but it fared much better.

Smith talks Project Spearhead in SBJ article

March 12, 2018

The Sports Business Journal reports on Leslie Smith and her efforts to organize UFC fighters with Project Spearhead.  The effort “by fighters, for fighters,” seeks to collect enough signatures by fighters to obtain an National Labor Relations Board vote to determine the fighter employment states.

Via SBJ:

In order for the NLRB to look at the issue, Project Spearhead must collect cards from fighters representing 30 percent of the UFC roster, or roughly 200 of the organization’s more than 600 fighters. That will give the group what is known as “a showing of interest,” which will meet the threshold for the NLRB to determine whether or not the fighters are employees. Project Spearhead was launched in February and the group has a year to collect the necessary cards.

The article explains why this effort will be different from those that had come and gone in recent memory including the Professional Fighters’ Association which indicated is no longer active.  Smith and current outside counsel Lucas Middlebrook were previously associated with this group.  Also, the MMAAA which included Bjorn Rebney as an advisor and Georges St Pierre and Cain Velasquez as members has not been active as well.  This leaves the MMAFA as the only other group seeking to organize fighters.

Payout Perspective:

It will be interesting to see how these efforts will go.  Smith, Kajan Johnson and Al Iaquinta are the three fighters that are leading Project Spearhead.  While social media has seen some fighters voice their support, we will see how many actually sign on for this effort and then the bigger issue will be whether they will vote to be considered as employees.


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