Mark Hunt lawsuit gone, but not forgotten

May 31, 2019

It appears that the Mark Hunt lawsuit will be coming to an end in the not-too-distant future.  With the parties dismissing their appeal to the Ninth Circuit, one might anticipate a settlement.  However, his case still presents an interesting legal issue that was not addressed by the trial court which dismissed most of his claims.  The question of whether there is an assumption of risk that a fighter will step in with another that is using PEDs.

In Hunt’s lawsuit, he filed a Civil RICO claim which alleged that the UFC and Dana White devised a scheme which allowed doping fighters to fight in the UFC.  The Court concluded that the scheme was “fatally speculative.” This, along with all of Hunt’s claims (save one) were dismissed by the trial court.

The trial court which decided the merits of Hunt’s case dismissed 9 out of the 10 claims in his lawsuit.  It held that the allegations were “non-cognizable damages or failed to plead facts to show” a proximate cause to his financial losses.

There were specific problems the Court had with the majority of Hunt’s claims.  Namely, his damages with respect to his allegations.  For non-lawyers, each of the allegations must have a duty, a breach of that duty, a proximate cause resulting in damages.  Here, the Court had issues with Hunt’s claim that his loss to Brock Lesnar at UFC 200 caused him to lose out on post-event marketing deals including loss of income from his clothing brand.  The damages claimed by Hunt were speculative in nature and could not stand as concrete damages.

The Court did not side with Hunt’s notion that doping fighters like Lesnar are “bigger, strong, faster, hit harder, and can handle damaging hits better,” and ‘misses the forest for the trees.’  As the Court explains, there are ‘numerous other factors’ that could account for why Hunt lost the bout or why it was (in Hunt’s view) such a lopsided defeat.’

In one of the more interesting parts of the Court’s opinion it dismissed Hunt’s battery and aiding and abetting claims against Lesnar because Hunt consented to the fight.  Notably, the Court highlighted that there was no evidence offered that suggested Lesnar did anything outside “the range of the ordinary activity,” in an MMA bout.

When it rendered its opinion citing that Lesnar did not do anything during their bout which was outside the “range” of ordinary activity in MMA, it cited to a California case in which a pitcher intentionally threw a ball at a batter’s head which injured the batter.  In a lawsuit over the damages claimed by the batter, the Court sided with the pitcher stating that while throwing at a batter’s head is “forbidden by the rules of baseball,” it “is an inherent risk of baseball.”  By analogy, the Court states that even though Lesnar tested positive for a performance enhancing drug, there was no evidence submitted which revealed he did something outside the scope of an MMA bout.  Thus, there can be no battery claim against Lesnar.  And since there is no battery claim, the underlying claim of aiding and abetting cannot occur.

The parties have (presumably) settled their case but the notion that Lesnar’s participation while on PEDs poses the question of whether the use of illegal drugs is within the “range” of ordinary activity.  Certainly, that can be the scenario with the Court’s conclusion flipped on its head.  Specifically, if the Court interpreted the case law on the premise of whether the actions occurring were within the scope of what’s ‘normal’ within the sport.  Consequently, you might infer from the trial court ruling that PED-use is normal which it should not.

The Court seems to draw a distinction with what an athletic participant could expect as opposed to the potential for actions outside of the scope of normal athletic participation.

The tort doctrine of “assumption of the risk” is that a plaintiff should not be able to recover for injuries caused to the plaintiff if he or she willingly assumed the risk inherent in the activity.

So, is using PEDs a “risk inherent in the activity”?

There are obvious cases out there which have addressed the threshold question of a “risk inherent in the activity.”

The most notable case involving sports assumption of the risk was an impromptu football game during halftime of a Super Bowl.  In Knight versus Jewett, a football game between friends turned into a lawsuit when a man stepped on a women’s hand causing an injury which resulted in the amputation of one of her fingers.  A lawsuit was filed based on the claims of assault and battery and negligence.  The Court held that the plaintiff could not recover for her personal injuries since the injury occurred in the ordinary course of the football game.

As mentioned above, a baseball player suffered a brain injury when he was the subject of a “beanball” by a pitcher.  But the California Supreme Court stated that the “beanball” was a part of the game and any claim was barred by the assumption of the risk doctrine as it was based upon its anecdotal theory based on empirical data.  The dissent stated that assumption of the risk should be based on “what risk the plaintiff consciously and voluntarily assumed” and not what risks are inherent in a particular sport.

Arguably, Hunt could have asserted that the implementation of the UFC Anti-Doping Policy was a sign of a “risk inherent in the activity.”  It’s clear that Hunt consented to an MMA bout where he may receive bodily harm from his opponent.  But, is the inherent risk of testing UFC fighters a potential factor in the activity.  This is a broad interpretation as “activity” used by Courts is the actual activity occurring and not an ancillary part of the sport.  The Court that decided to dismiss the bulk of Hunt’s lawsuit viewed the “activity” as the bout with Lesnar and not the fact that Lesnar was subject to drug testing.  Moreover, there is no evidence that Lesnar specifically took PEDs to injure Hunt but he may have taken a banned substance to be able to compete with Hunt.  Whether taking a banned substance is “reckless” seems to be a factual claim.  On the other hand, the UFC Anti-Doping Policy anticipates the possibility of athletes using banned substances and Lesnar’s flagged tests reflects the fact that his behavior was not reckless but negligent.

With the appeal seemingly gone, the question lingers until another lawsuit occurs.  While Hunt’s RICO claims were tenuous at best, the question of assuming the risk in a sport and whether the injured person ‘consciously and voluntarily assumed’ the risk is a compelling question of law.  The dissent in the ‘beanball’ case is recognition that there are certain actions within sport that are not contemplated by an injured party.  Even if there are “inherent risks” in participating in a sport, whether a participant acknowledges the issue and voluntarily assumed the risk could be a concern in the future.

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