What happens next in the UFC Antitrust Lawsuit?

September 4, 2019

Last week the UFC Antitrust Lawsuit reached one of the most important milestones in this litigation journey as the two sides met in Judge Richard Boulware’s courtroom to discuss the expert testimony which may eventually decide whether or not the case goes forward.  So, let’s take a look at what has to happen before the parties proceed.

It was a good week for those interested in the finances of the UFC and we definitely gave you a primer of the testimony from Hal Singer, Robert Topel and Andrew Zimbalist.  For the most part, the Plaintiffs made their case via Dr. Singer’s testimony that his methodology of comparing fighter wage share (as opposed to wage level) was the best way to gage whether the market power obtained via Zuffa was procured via anticompetitive means.  On the other hand, Zuffa found themselves, for the most part, having a difficult time getting onto the same page as Judge Boulware and Dr. Singer had a much better time asserting the premise for his expert report than Dr. Topel.

Judge Boulware indicated at the outset that his decision to certify the class of plaintiffs in this case would be primarily based on the expert testimony he would hear.  Thus, he was not interested in extrinsic evidence, nor any impeachment methods via the deposition testimony of the experts.  The primary emphasis was based on Dr. Singer and Dr. Topel.

The testimony would help Judge Boulware come up with a decision on the class certification issue.  So, from here, where do we go?

When will a decision be made?

Unknown.  Judge Boulware could come up with an opinion this week, next week or next year. Judge Boulware has scheduled other experts in the case to testify mid-September as well as the possibility that Joe Silva (who was scheduled last week but could not testify) return to testify in Court.

Expect Judge Boulware to issue a written opinion on ruling on the Class Certification which will outline and then detail his reasons for granting or denying class certification.

Bear in mind two things.  Federal courts are extremely busy as they have a voluminous amount of cases that they must deal with that include criminal and complex civil issues.  Secondly, judicial opinions take time to draft.  It’s worthy to note that in this case Judge Boulware’s opinion denying Zuffa’s Motion to Dismiss came out in October 2017 when it was heard and denied the previous fall.  We could see a scenario where the Judge makes a decision but the parties must wait for the written order to make the appeal.

Appeal?

Yes.  There will be one.  If class certification is denied, Plaintiffs will appeal the decision most certainly as the case would come to an end if there is no class action.  If class certification is granted, Zuffa may appeal the decision based on the Court’s written opinion.  Through at least the first couple days of the evidentiary hearings it seemed that Zuffa was unable to connect with Judge Boulware in its assertion that Dr. Singer’s model was not accurate while the prevailing use of wage share to assess athlete pay is the dominant way to calculate this dispute.  The evidence through the evidentiary hearings will be the information that Judge Boulware will rely on to determine class certification. If Zuffa believes it was not given an opportunity to set forth its case during the hearing, we might see an appeal.

For those wondering, the appeal would go to the Ninth Circuit Court of Appeals in San Francisco where there is a panel of judges to review the appeal.  In most cases, the appeal is heard by a three judge panel.

So, what are the legal means to certify a class

As I’ve previously posted, last summer Plaintiffs filed a Motion for Class Certification which was opposed by Zuffa.

Rule 23 of the Federal Rules of Civil Procedure dictate the elements for which a Court may certify a class.  Many lawyers remember this through prepping for the Bar Exam.  The four elements are:

  • Commonality: The question of laws or facts must be common to each of the plaintiffs.  In this case, among the common issues is whether Zuffa implemented an anticompetitive scheme to suppress fighter wages.  Zuffa argues that Dr. Singer’s regression analysis shows that the fighters claims are not common and other evidence shows that the alleged conduct by Zuffa affected the fighters differently.
  • Typicality: The claims of the class representatives (the six name plaintiffs in this lawsuit) are similar to those that they seek to represent (according to plaintiffs, over 1,200 ex and current fighters that have fought under Zuffa contract.)  The most notable argument from Zuffa is that none of the named plaintiffs are currently fighting in the UFC and the claims are not typical of the current fighters contracted by the company.
  • Numerosity: There must be similarly situated plaintiffs that a class action is necessary.
  • Adequacy: The attorneys bringing the class action must be adequate for the complexity and volume of the lawsuit. They must not have a conflict of interest with the proposed class and are competent to purse the interests of the proposed class.

What if Class Certification is Denied and Plaintiffs decide not to appeal

It does not foreclose Zuffa from being sued by individual fighters but the stakes would be higher and more expensive for a fighter and their lawyers.

One might see this going to multidistrict litigation.  The one aspect of this is that fighters may file their lawsuit where they reside although Zuffa would argue that the lawsuit must be filed in Las Vegas where the company is headquartered.  Multidistrict litigation are federal cases where “civil actions involving one or more common questions of fact are pending in different districts.”  The process facilitates the discovery process for federal courts where there are hundreds of plaintiffs in different federal courts. It differs from class-action cases as those involve a single lawsuit whereas multidistrict litigation involves multiple lawsuit filed by different parties.

From the outset, multidistrict litigation or any single lawsuit against Zuffa is much more of a gamble for an individual fighter and their attorney to spend the resources to file a lawsuit against Zuffa.  Based on the enormous volume of documents, number of attorney and experts hired for this lawsuit, one fighter undertaking this would bankrupt themselves before an outcome.

Did the Plaintiffs win last week?

They didn’t lose but its hard to tell if they have actually won.  Remember, even if the Judge grants the motion to certify the class, only one hurdle has been completed.  They still must overcome a potential appeal of the ruling, a motion for summary judgment and then win at trial.  Yet, its clear that Dr. Singer connected with Judge Boulware.  Whether or not that means that Judge Boulware agrees with Dr. Singer and plaintiffs is the bigger question.

We will keep you posted.

 

 

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