Winners and Losers through 2 days of the UFC Antitrust Lawsuit Expert Hearings

August 28, 2019

After the first two days of the evidentiary hearings in Las Vegas, MMA Payout has assessed some of the winners and losers of one of the more anticipated hearings that may shape the industry of mixed martial arts.

Here were my observations through the second day.  I would also recommend Paul Gift and John Nash’s articles on this as well.  Also, the Show Money exclusives.

Winners:  Judge Richard Boulware

It’s clear that Judge Boulware is in control of how he wants to run the week and what he wants to hear.  Judge Boulware’s credentials are impeccable.  He went to Harvard College then to Columbia Law and clerked for Judge Denise L. Cote in the Southern District of New York.  For those not knowing, the Southern District of New York is a very well-known sect where some of the most salacious, sexy and well-known cases are filed.  Judge Cote dealt with the federal securities and ERISA class-action lawsuits brought by former employees or investors in WorldCom and Arthur Anderson and investment banks back in the mid-2000s.  Although not confirmed independently, this would have been about the same time that Judge Boulware would have been clerking.

Rather than joining a law firm after his clerkship, he dedicated his legal practice to Federal Criminal defense.  While his background might be criminal law, Judge Boulware indicated that he had some familiarity with regression theory which would be displayed in the first two days of the testimony as it was clear he was following Dr. Singer’s model better than Zuffa.  While his understanding should not be seen as an admission that Dr. Singer’s model is valid, he seemed well-versed with the mechanics of it.

With a criminal defense background, he is well-versed in cross-examination and how to illicit testimony.  This came into play early on in the first two days.

It’s notable that he is a very even keel Judge and doesn’t lose his patience even when he is talked over or challenged.  The one warning given to the parties about talking over him was a very stern, yet polite warning.  He is very engaged in the testimony to the point that he had to be reminded of taking a lunch break on the first day.

Winners:  Hal Singer

Although challenged on cross-examination, Dr. Singer came across as a calm expert defending his report while attempting to aid the Court in why he did what he did and the outcome.  Clearly, it’s his purpose to be an advocate for his position and was unwilling to concede certain items suggested by Zuffa’s attorneys on the cross-examination.  At times, he did appear too willing to provide Judge Boulware with explanations, but overall his testimony provided the Plaintiffs with a good shot at clearing the hurdle of Class Certification.

Winners:  Kyle Kingsbury, Jon Fitch and Cung Le

Kingsbury, Fitch and Le attended the hearings.  Kingsbury and Fitch sat through the first day while Le joined them on Tuesday.  With the high-level economic theory added to the legal aspects of the hearing, even lawyers (ahem) would have got bored by this testimony.

Winners:  Kingsbury’s Vans

The former UFC fighter wore a sweet pair of vans with his suit on Tuesday.  Not to be outdone with his superfanny pack on Monday.  But I am a sneaker guy.

Not really a Loser, but it wasn’t winning either:  Zuffa

The cross-examination of Dr. Singer did not flow well and you might infer that Zuffa was not getting its points across that it had hoped.  More so, Judge Boulware seem unimpacted by the questions asked by Zuffa to Dr. Singer.

Obviously, Zuffa could turn this around with Dr. Topel’s testimony, its other experts and maybe Judge Boulware may just not buy Dr. Singer’s model in the end. But, from the first two days it was not going the way Zuffa would have liked.

Loser:  Joe Silva testimony

The news that Silva would not be testifying on Thursday as originally scheduled put a damper on the week as it would have pitted him in Court with the likelihood of Kingsbury, Le and Fitch gazing at him during questioning.

Losers: Zuffa, Top Rank and Bellator

Judge Boulware stated at the outset that since this would be a dispositive motion  (Class Cert will decide whether the case will continue or end) the expert reports would be unredacted for all to see.  Zuffa’s counsel Stacy Grigsby was tasked by her client to argue that the information contained vital business information which she contended must remain under seal, unavailable to the public and mainly for the competitors.  Judge Boulware asked for an example, which Grisby obliged but was put down swiftly by the judge.

Similarly, Bellator appeared to argue about its financial information was confidential.  But it was a losing argument although Judge Boulware gave an assurance that the granular financial information should not be probed based on the context of the hearings and what testimony he wanted.  He would not grant a seal on the financials because of the overarching explanation that since he would render an opinion, he would not grant an order sealing any information in the expert reports.  So, although Bellator lost, the Judge didn’t want them to feel like they were really exposed.

More of a Loser:  Top Rank

The belief that your company’s private information may be compromised seemed like a big enough deal to object as a non-party but to not show up in Vegas when it’s less than an hour plane ride away tells the Court it really doesn’t matter.  Appearing telephonically for a hearing of this magnitude is a bad look.  It tells the Court that this issue is not of great importance.  Nevertheless, Top Rank took issue with ONE footnote in Andrew Zimbalist’s economic expert report.  Top Rank was not heard until after Grigsby’s and Bellator’s arguments to the Court were made.  At that point, it was clear that Judge Boulware would not seal anything.

Yet, Top Rank continued with its argument to which Judge Boulware was quick to respond with a resounding denial of the request.

Loser: Slide presentations

The Court did not see Plaintiffs or Defendants full presentations although they were brought up out of order.  While we gleaned a lot of the financial information throughout the day, it would have been nice to see the presentations as they were to be shown.

Loser:  Paper

Despite Judge Boulware having a paperless Courtroom, there were tons of boxes and trial binders brought by both sides.  One of the funnier moments at the beginning occurred when Plaintiffs’ counsel Eric Cramer attempted to provide Judge Boulware with a hard copy but the judge did not want to do anything with it.

The show will go on without me in Vegas, but keep following John Nash and Paul Gift on ongoing updates throughout the week.

One Response to “Winners and Losers through 2 days of the UFC Antitrust Lawsuit Expert Hearings”

  1. What we learned at the UFC antitrust hearings - Physical Education Sports News,American Football,Soccer,NBA Basketball,Baseball,Tennis on September 3rd, 2019 4:03 PM

    […] hearings I recommend the Show Money Podcast, where we covered the first three days of the hearings, MMA Payout’s winners and losers through the first two days, the Expert Reports that Jason Cruz has posted, Paul Gift’s summary of the week’s hearings, and […]

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