Court denies Zuffa Motion for Summary Judgment in Antitrust lawsuit

December 14, 2018

BE/Forbes’ Paul Gift reports that the Court has denied Zuffa’s Motion for Summary Judgment.  It apparently was anti-climactic.  Like most law is.  But, the Court apparently did not take long to deny the request to dismiss the lawsuit.

MMA Payout will have more on the ruling once a minute order and/or official order is issued by the Court.  It does seem that there could be a possibility to resubmit a motion based on more determination of the information.

UFC 231: Payout Perspective

December 12, 2018

Welcome to another edition of Payout Perspective.  This time we take a look at UFC 231 taking place from Toronto, Ontario, Canada where Max Holloway reminded people he is still one of the greatest in the UFC today.

Holloway forces doctor stoppage

Returning to form, Max Holloway successfully defended his Featherweight title by stopping Brian Ortega after the fourth round.  Holloway exuded confidence throughout and made one of the top challengers to his title look slow.  Ortega showed his heart throughout but was beat up to the point that he could not see out of one of his eyes forcing the stoppage between rounds.

Holloway’s cardio, quickness and ability to make subtle changes to stay out of range is remarkable and its hard to see another current Featherweight taking his title.  Although it is not going to happen, it would be fun to see him get his rematch against Conor McGregor in 2019.   Ortega is still a force in this division but just wasn’t on Holloway’s level.  He’ll be back although I would suggest he take some time to recover.

Shevchenko wins 125-pound women’s title

Valentina Shevchenko just has Joanna Jedrzejczyk number.  Shevchenko dominated the former strawweight champion for a 5 round unanimous decision over Joanna.  The fight was not even close.  It was a masterpiece by Shevchenko.

Attendance, gate and bonuses

Toronto continues to be a city the UFC counts on for big attendance.  It sold out ScotiaBank Arena per UFC officials with over 19,000 fans and a $2.4 million gate.

Fight of the Night:  Ortega and Holloway

Performance Bonuses:  Holloway and Santos

All won $50K in addition to their reported purses.

Ratings

UFC 231 Pre-Fight Show on FS1:  211,000

UFC 231 Prelims: 786,000

UFC 231 Post-Fight Show: 136,000

It was a busy Saturday night of combat sports with HBO’s final boxing offering, Showtime’s replay of the Fury-Wilder fight and the Lomachenko fight on ESPN.  The ratings were up from last month’s PPV Prelims which may be a good sign.

Pre-Fight Hype

Max Holloay and Brian Ortega did a lot of media going into this fight.  There was the Holloway-Drake meetup at a Toronto Raptors game which MMA folks were giddy about.  Holloway also did a GQ video where he explained his tattoos.  The mag has done this in the past and it’s a pretty cool piece.  Also of interest, he was on the Alex Wong (Stevie LeBron) podcast early in the week and said that last spring’s unexpected pull out of April’s fight with Khabib was a surprise to him as UFC officials and Holloway’s team requested he pull out and seek more medical evaluation.

ESPN, the future home of the UFC, did a great long-form piece on Ortega and his background.

Sponsorships

Two interesting sponsors from Saturday night included PokerStars and online betting web site Pari Match had signage in the Octagon.  Look for this trend to continue and/or the UFC secures an “official” online betting site as a sponsor.

In the Octagon was Toyo Tires, Nemiroff Vodka, MetroPCS, Circle K, P3, Monster Energy, Motel 6 and Monster Energy had the center.

Also of note, Hooters was on the mat for UFC 231.

P3 were on the Reebok kits of the fighters.  According to multiple reports, the fighters are not directly receiving payment for wearing the logo.  Instead, P3 is paying the UFC.

UFC sponsor Bixler jewelry also appeared on the Embedded episodes giving Valentina some UFC 231 swag.

Odds and ends

It looked as though Max Holloway had a Reebok-branded bandana that stated his phrase, “It is what it is,” on it at the weigh-ins.

The Jimi Manuwa-Thiago Santos fight on the PPV was a heavy-hitting affair.

Worst “almost crime of the night”: Hakeem Dawodu just winning via split decision.

Dana White threw a tantrum when asked about Greg Hardy being on the same card as a domestic violence survivor.  The new media relations ploy is to act pissed when you don’t want to ask a question.

Also helpful for UFC media relations, it was discovered that a Bloody Elbow writer critical of the UFC is also into bestiality and kiddie porn.  This will lead to a new managerial technique of google searching writers that you don’t like.  If nothing is found, see Dana White’s tactics above.

Conclusion

The two championship fights seem to be the way the UFC hopes to stack its PPV cards where there is not a huge name to build around.  If Holloway can remain healthy, the UFC could probably do a standalone PPV with Holloway defending in Hawaii.  Not only would they sell out the venue, but get some decent PPV buys from it.  But, that would require the UFC to relax their ask from the state of Hawaii.  As for this event, 500K google searches and on a busy night of combat sports probably puts it around 275,000-300,000 PPV buys.  Perhaps above average for these types of non-“big card” fights.

Zuffa Reply Brief argues its provided Court with ample evidence for sealing requests

December 10, 2018

Zuffa has filed its Reply Brief in Support of its request to seal portion of its Reply Brief in its Motion for Summary Judgment.  Essentially, this reply brief is supporting its motion to seal portions in its Motion for Summary Judgment so that the public will not be able to see it.

Zuffa argues that while it provided detailed and “narrowly tailored” reasons for sealing requests, Plaintiffs argued with broad, “boiler-plate arguments” from other opposition briefs.  It also claims to have declarations including from Bellator to support its motion to seal whereas Plaintiffs do not.

In its Reply, Zuffa argues that the Court has found that the documents which included confidential business strategy information, including revenue and profit information regarding Zuffa’s Fight Pass product, Zuffa contracts and promotional agreements to be sealed.  Plaintiffs did not object at the time.  In Plaintiffs defense, they cite to the Order of the Court in this case which states there is no waiver if a party does not object.

It also argues that Plaintiffs’ Opposition does not address the “substantial evidence of the commercial sensitivity of its promotional agreements and negotiations regarding those agreements.”  Essentially, they suggest that Plaintiffs’ fail to meet their burden through extrinsic evidence such as declarations or cited testimony.  There is no rebuttal evidence to Zuffa’s declarations which is usually the tact in these motions.

Zuffa also contends that the information it seeks to seal is not public knowledge as claimed by Plaintiffs.  They try to make a distinction between the contract disclosed in the Eddie Alvarez litigation and widely written about versus its request to seal its contract.  Zuffa makes the argument that while some agreements may be public, the negotiations about those agreements and business strategy were properly filed under seal.

As for the argument that some of the information that Zuffa seeks to seal is too old, Zuffa claims that there would still be “highly sensitive information” that should be disclosed from public disclosure due to its commercial sensitivity.

Zuffa’s Reply Brief ISO… by on Scribd

Payout Perspective:

There are multiple motions to seal going on here so its kind of confusing to keep up but basically this Reply Brief supports its Motion for Summary Judgment.  It looks like that Zuffa attorneys are watching John and Paul’s twitter timeline for support for their brief to indicate that all is well with the disclosure of information since they have been able to access PACER for these documents.  Notably, they do not cite to John’s request for the court to unseal documents and the subsequent response by Zuffa. There seems to be an argument made here that the underlying issue of business strategy and confidential information that is seen underlies the reason for these documents to be sealed.  So, does that mean that due to the fact you can extrapolate a business decision based on the contents of a contract, it should not be disclosed to the public?  We shall see.

Media were requested not to ask about Greg Hardy during media day

December 5, 2018

The UFC held media day for UFC 231 this Saturday in Toronto.  But one of the hot topics on everyone’s mind was the announcement that former NFL player Greg Hardy would make his debut on UFC’s first ESPN card in January.  This is the same card that Rachael Ostovich would be on.

For those not knowing, Hardy is a domestic abuser having been found guilty of heinous acts against his ex-girlfriend.  However, he was not sentenced to prison due to his ex-girlfriend not appearing to testify against him.  Ostovich had her orbital bone fractured in November by her boyfriend.  It was questionable if she would be able to fight Paige VanZant on the card but it appears she will make it.

The two on the same card presents a cruel irony and one has to wonder if the UFC knew of this as promoters and whether ESPN had an inkling this was happening as the new media partner.

With this information fresh in everyone’s mind, today’s media day seemed like a good time to get answers to these questions.

Except, it appears that the questions were limited.

Controlling the media is not a new thing, nor is this isolated to the UFC.   Other sports have had restrictions on the type of questions you may ask.  Teams are concerned about they types of things that are asked of their players.  They fear players may go off-topic and steer outside of the message.  Moreover, it could inadvertently get them in trouble.

Anecdotally, I’ve covered a couple NFL and NBA games in my time, and the media relations for the teams seem somewhat lax as they know most professionals and have built relationships.  Notably, in the NBA, access is pretty open especially after games.  That is, if players want to talk, they’ll talk.  If not, you are ushered away.

Other instances, media relations will want to control the message more with restrictions like the one offered by the UFC today.

This is due in part for the UFC to come up with a plan on how to address the issue.  Once determined, they will feed it to their network partner.  Thus, we can look forward for an exclusive with ESPN.

One might be able to understand the reasoning for today’s scale back of questions.  The UFC is trying to sell a PPV this Saturday.  If the media day is hijacked with Hardy questions, its hard for the company to get their message out.  Also, it is unfair to the four fighters that were up there taking questions.  They are cutting weight and have other concerns on their mind – namely Saturday’s opponent.

Is this right?  Should the dog wag the tail?  The UFC was in a bad position.  Certainly not announcing the Hardy bout until next week would have been the most prudent thing to do.  Logistically, this may not have been possible.  Despite the controversy, the UFC wanted to control this story and will spin in a way to make it sound reasonable.

This can’t be a good start to the ESPN relationship.  While fans should be excited for fights to be on ESPN, this controversy could have been abated with Hardy starting at a later date.

But, the UFC seems to do things for a reason, we suspect.  Recall that the UFC is the company that used footage of Conor McGregor throwing a dolly at a bus to spur UFC 229.  The event featured Khabib Nurmogomedov jumping into the crowd and McGregor throwing a punch at one of Khabib’s team in a post-fight melee.  But the UFC defended its marketing of the event stating it was part of the story and the brawl was not ignited due to a couple commercials.

It is a little awkward for the journalist.  Their job is based on retaining media credentials and building relationships.  They can’t have them pulled because their organization would lose out on access.  Moreover, a relationship is needed with the UFC in order to get fighter interviews, information on upcoming fights, etc.  But, you have to be wise with decisions. I was once told by a PR person for an MMA organization that if we pulled an article, we would be the first to have access to an upcoming story.  We never got that breaking story.

Here we have a more sensitive controversy: domestic violence.  Hardy was exiled from football for hitting a woman.  He turned to MMA and his name recognition and ability has helped him ascend quickly.  He has asked for forgiveness for his past problems and there is the old adage that everyone is deserved a second chance.

The UFC is doing just that.  He has won the fights put in front of him and now will be featured on ESPN.  The question is why do this on such a big event for the company and its new partner.  And, why do it on the same card that a domestic violence victim is on?

If only media could ask the question.

Leslie Smith NLRB Appeal is denied

December 4, 2018

Leslie Smith’s appeal of the dismissal of her NLRB complaint has been denied.  According to the NLRB web site a denial letter was issued on November 27, 2018.

In May, Smith filed a labor complaint against Zuffa last May citing the company took adverse action against Smith due to her involvement in a protected activity.  As we know, Smith is an ardent supporter of Project Spearhead, a group supporting athlete’s right and the need for an association/union.  The NLRB investigator found merit in her claim and there was an indication in June that the NLRB would file a complaint against Zuffa based on the evidence provided by Smith.  But the case was sent to Washington D.C. for review by the Division of Advice.

After it was turned over to the Washington D.C. office, the NLRB reversed course and in September dismissed Smith’s claim citing that the UFC’s conduct actually benefited Smith.

In light of the dismissal, Smith’s attorney, Lucas Middelbrook, filed an appeal, requesting that the same Investigator that initially was assigned to the matter to reconsider the dismissal.  It also requested the recusal of NLRB’s General Counsel Peter Robb and Deputy General Counsel John W. Kyle.  Middlebrook asserted that Robb and Kyle were directly involved with the decision to dismiss Smith’s case.

The latest news looks as though the NLRB has reviewed the appeal and has upheld the dismissal.

Payout Perspective:

Bad timing for this news as Smith will appear on Samantha Bee’s “Fully Loaded,” talking about her quest for better fighter rights.  It airs Wednesday night.  If there is an appeal of this board decision it will go to the United States Court of Appeals.  This denial is not too surprising based on the decision this past September.  MMA Payout will have more information on this matter.

 

 

Seeking to save Ali Act case, Trout files Motion for Reconsideration

November 22, 2018

Attorneys for Austin Trout have filed a Motion for Reconsideration in light of the District Court ruling which dismissed Trout’s lawsuit against the WBO and sent his case to arbitration.

In its motion, Trout argues that hat the WBO waived any right to arbitration, pointed to the promotion’s own guidelines with respect to jurisdiction and claims that the Ali Act cannot be subject to arbitration.

As you might recall if you have been following this lawsuit, Trout filed a lawsuit against the promotion as he believed he was passed over a chance to fight for the title.  The case was moved to Puerto Rico where the WBO is located and the promotion filed a motion to dismiss the case and compelling it to arbitration per the terms of the contract.  The Court determined that Trout’s promotional agreement with the WBO with its arbitration agreement ruled the day and dismissed the case to go to arbitration.

Trout is now moving for the court to reconsider the ruling.  The Court will have to be persuaded that its original ruling was in error.

Trout argues that by the WBO having moved the case to Puerto Rico it requested the case to be litigated and waived its right to arbitration.  Trout also claims that the parties have engaged in discovery which would be considered litigating the case.  Moreover, they state that Trout’s claims under the Ali Act cannot be determined by arbitration.

In opposing the motion to reconsideration, the WBO notes that there is no error of law which Trout points to that was decided in error.  This may be the strongest argument for denial by the WBO here.  The WBO claims that the motion is merely an attempt to relitigate the points the Court has already decided. In its opposing brief, the WBO claims it did not waive its right to arbitration. WBO states that despite discovery taking place, it did not substantially involve itself in litigation.  It also suggests that even though the contract indicates a jurisdiction and venue for possible litigation it does not “override” the arbitration clause.

The WBO noted that the Ali Act was subject to arbitration.  Although this issue has not been decided, it argues that the “scope of issues subject to arbitration is determined by the agreement itself.”

Motion for Reconsideration by on Scribd

Opposition to Motion by on Scribd

Reply by on Scribd


Payout Perspective:

As we’ve discussed when the Court ruled that this case go to Arbitration, this decision has big implications for those seeking to litigate under the Ali Act.  The WBO claims, citing case law, that any issue in the contract is subject to arbitration.  However, there has not been a legal challenge where a boxer has sued under the Ali Act and it has gone to arbitration.  The WBO makes a compelling case that there has not been an error of law for the Court to overturn its original decision.  An appeal may be necessary if Trout wants to overturn this decision.  MMA Payout will keep you updated.

Plaintiffs in UFC Antitrust Lawsuit try to avoid “hot tubbing”

November 16, 2018

Plaintiffs in the UFC Antitrust lawsuit have filed a letter to the Court arguing that there should not be an evidentiary hearing on expert testimony.  The legal slang of “hot tubbing” where “concurrent expert evidence” is being offered and heard by the court at the same time.

Letter November 16 by on Scribd

Plaintiffs see a request by Zuffa to hold an evidentiary hearing regarding the expert testimony as an end-around to exclude expert testimony.  The Court denied Zuffa’s Daubert motions without prejudice in late September per Plaintiffs. It’s the position of Plaintiffs that this is a way to ask for the Court to reconsider at this late date.  Plaintiffs also argues that the format of each side presenting its experts on direct and then cross examines the other side would take multiple days.  Notably, this would run into the rescheduled date for the Motion for Summary Judgment of Friday, December 14, 2018.  It would most certainly delay the hearing date once again if the Court were to entertain the hearings.

There is also the argument that evidentiary hearings on class certification are not required.  Plaintiffs cite cases where the Court suggests that evidentiary hearings for these types of complex cases are unnecessary.  Finally, Plaintiffs also argue that evidentiary hearings for summary judgment almost never happen and there’s no extraordinary reason brought up by Zuffa why one should take place now.

Notably, “hot tubbing” is not prohibited, but its not specifically addressed.  There are various opinions on its use and affect.  Judges have wide latitude when it comes to admitting expert witness testimony.  Of the factors a court may consider, the most important tends to be whether or not the testimony is a waste of the court’s time.

Payout Perspective:

And we are now introduced to the term of “hot tubbing” which is a term that originates from Australia according to some research.  It’s the “battle of the experts” and the purpose seems to be a way to flesh out some of the theories asserted by the parties in hopes of scaling down the arguments for the court at trial.  Plaintiffs believe that Zuffa is asking for this type of hearing as either a second bite at attempting to exclude their experts or stall.  I would think that it’s the former rather than the latter.  Zuffa likely believes that if they can knock out some of Plaintiffs experts, there will be little left of Plaintiffs claims.  MMA Payout will keep you posted.

ShowMoney talks UFC Antitrust Lawsuit and ONE business

November 14, 2018

Show Money is back once again as I discuss the business of MMA with Bloody Elbow’s John Nash and Paul Gift (also of Forbes).

This show’s topics includes the upcoming Motion for Summary Judgment in the UFC Antitrust Lawsuit and the business moves made by ONE Championship.

UFC 230: Payout Perspective

November 7, 2018

Welcome to another edition of Payout Perspective.  This time around we take a look at UFC 230 at Madison Square Garden where Daniel Cormier took care of Derrick Lewis.

Double Champ takes care of Derrick Lewis

Daniel Cormier made easy work of Derrick Lewis using wrestling to negate Lewis’ KO power. DC easily tapped out Lewis in the 2nd round.

DC now sets his sights on Brock Lesnar with just one fight left on his contract.  However, you’d have to think that if Jon Jones pops up on the radar, that will be a fight to make.

As for Lewis, I would suspect he take some time off before getting back in the Octagon.  Two fights within a month is hard for any MMA fighter including a heavyweight like Lewis.

Jacare KOs Chris Weidman

Jacare Souza is a superior grappler, yet showed some flashy hands and dropped Chris Weidman in the final round.  The fight went back and forth and won Fight of the Night.  But Souza showed some strong combinations which stunned Weidman throughout the course of the fight and one to the former champ’s temple which put him down for good.

After this fight, Souza should be on the short list of fighters awaiting the winner of the Kelvin Gastelum-Robert Whittaker fight and perhaps he finally gets his title shot.

Attendance, gate and bonuses

UFC 230 drew 18,201 for a gate of $2,8471,718.16.  The bonuses of the night went to Chris Weidman and Jacare Souza for Fight of the Night and Israel Adesanya and Jared Cannonier for Performances of the Night. Each earned $50,000 bonuses.

According to secondary ticket seller SeatGeek, it was the second highest ticket for a UFC New York event outside of UFC 205.

Promotion of the Fight

Daniel Cormier joined the FOX NFL crew during halftime of Thursday night’s Raiders-49ers game to promote UFC 230.

He also did the intro on Fox Sports for his Saints.

Cormier did a lot of media.  He appeared on the Complex YouTube channel and played Connect 4 with Tony Mui.

As seen on Embedded, Derrick Lewis did a promotion at a Houston Rocket’s game and even sank a free throw to win money for his charity.

Sponsorships

The big sponsorship news for UFC 230 was the fast food wars that took over as DC and Lewis previously sparred over Popeyes Chicken.  The southern-based chicken restaurant forged a deal with Lewis.  In response, Carl’s Jr. came to the double champ’s corner.  It was an example of how sponsorships can happen organically.  Obviously, this may not happen for every UFC fighter but due to the visibility of the event and the social media followers for each, a sponsor’s deal became viable.

Embedded was sponsored by Air Force Reserves.

Motel 6 was also a sponsor of the co-main event.

Chris Weidman had a Monster patch on his walkout shirt and shorts which may indicate he has an individual sponsor with the company.

In addition, Cormier drew individual sponsor deals with Monster Energy Drinks and Nemiroff Vodka.

Inside the Octagon, Nemiroff Vodka, Modelo, Hospital for Special Surgery, Toyo Tires, the video game EA UFC 3, Metro PCS, Monster and convenience store Circle K shared an Octagon corner, Body Armor, P3 and Monster Energy had the center of the Octagon.

Modelo had the Fighter Prep Point.

Modelo also introduced its “Fighting Spirit” award of sorts to Daniel Cormier.

P3 had sponsorship space on the shoulder of the fighter’s walkout shirt.

EA UFC 3 was featured once again in pre-fight promos.

Toyo Tires also sponsored the Backstage Interviews.  This one included Megan Olivi speaking with Daniel Cormier.

Ratings

UFC PPV Prelims on FS1: 205,000

UFC Prelims: 635,000

UFC PPV Post-Fight Show on FS1: 188,000

Odds and ends

UFC 230 drew over 1 million searches which is above average and bodes well for the PPV buys.

Paul Felder did an excellent job as color commentator along with Joe Rogan and Jon Anik on the PPV.

The Last Stylebender has one of the best nicknames in the MMA game and is someone to watch.

Outside of the octagon, Ben Askren was the darling of UFC 230.

Notice that the gloves have the 25th anniversary logo on them instead of the usual UFC logo.

Lando Vannata-Matt Frevola draw should have won the FOTN honors.

The Jon Jones-Daniel Cormier rivalry remains alive despite the fact both sides say its over.

Conclusion

I was surprised by the amount of promotion for this event.  Granted, it was the UFC’s annual November show at MSG, but the main event did not look all too competitive on paper.  The event did have some good exposure with Cormier on Thursday Night Football’s halftime and the fast food wars with Derrick Lewis.  I would think this event does above average for a UFC PPV. One might expect a buy rate in the 375K-400K range.

Zuffa Reply Brief in support of dismissing antitrust lawsuit takes aim at Plaintiffs’ claims

November 5, 2018

On Friday, Zuffa filed its Reply in Support of its Motion for Summary Judgment in dismissing all claims against it by former fighters in the antitrust lawsuit.

In its Reply Brief, it argues that Plaintiffs have now changed its theory of liability since its original claims are no longer viable.  Zuffa argues that Plaintiffs have failed to define relevant markets and in turn have not proven its monopsony and monopoly claims.

In a more of a procedural argument, Zuffa argues that Plaintiffs failure to rebut certain Statement of Undisputed Facts in its Motion and are therefore admitted as true.  Alternatively, Zuffa states Plaintiffs have failed to raise any genuine factual disputes in its counterstatement of facts.

Zuffa argues that Plaintiffs’ Opposition to its Motion for Summary Judgment relies heavily on Dana White’s puffery.  But, as Zuffa argues, “strong statements praising your own business and demeaning your competitors are evidence of competition, not an antitrust case.”

This past September, Plaintiffs filed its Opposition Brief to Zuffa’s Motion for Summary Judgment.  The main argument by Plaintiffs is that the UFC is the “major league” of MMA and it has done so through anticompetitive behavior.  Plaintiffs claim that Zuffa used its market leverage to extend exclusivity over its fighters through coercion, intimidation and other means of forcible persuasion.  The claim is that the evidence supplied shows Zuffa abused its market power.

Zuffa claims that Plaintiffs have provided a new category for fighters: “marquee,” citing marquee fighters as the most important input for MMA promoters and that Zuffa violated the antitrust laws by preventing competitors from having a “critical mass” of the fighters.  Zuffa argues that this theory of the need to have a “critical mass” of “marquee” fighter does not appear in its Amended Complaint nor is there discussion of this theory in its discovery responses.  Moreover, Zuffa argues that Plaintiffs fail to define this term.

Moreover, Zuffa states that the relevant markets in which Plaintiffs allege Zuffa has power over have not been properly identified.  Zuffa notes that Plaintiffs failed to provide an evaluation of the “marquee” query and that their expert, Dr. Hal Singer, does not include the Significant Non-transitory Decrease in Price test.  Zuffa also takes issue with the lack of defining an output market for a monopoly claim.  This is due in part to its assertion that Dr. Singer failed to properly conduct a SSNIP test.  Zuffa cites to Singer’s admission that he did not test whether cable networks, broadcast networks and sponsors (the output market according to Dr. Singer) would switch to sports entertainment.

Zuffa also states that Plaintiffs cannot dispute that other promotions are viable competitors of the UFC.  They cannot dispute the testimony of the promoters which claim that the UFC has not been an obstacle to them signing fighters.  In this argument, they negate the testimony of Kurt Otto and Jeremy Lappen because they promoted MMA events before the class period and before Plaintiffs claim Zuffa had monopsony power which deems their testimony irrelevant for purposes of this lawsuit.

One of the other claims asserted by Zuffa in its Reply is that the Plaintiffs cannot show relevant direct evidence of lower compensation as a result of the claimed monopsony power.  Zuffa argues that Plaintiff cannot solely rely on their expert’s reports alleging the correlation.  Here, Zuffa argues that the practical market facts do not show that the company suppressed compensation due to its share of the market.  Zuffa also argues that Plaintiffs’ are making a “predatory hiring” claim as Plaintiffs describe a marketplace where the UFC retains fighters it does not need in order to keep them away from other promotions.  But, Zuffa argues it simply offered fighters more money.  This would seemingly fly in the face of Plaintiffs claim that wages were suppressed.

Furthermore, Zuffa states that Plaintiffs have failed to show its foreclosure theory based on the UFC’s use of exclusive contracts.  Basically, despite the inference, Plaintiffs cannot show intent that the contracts foreclosed competition.

These are the main arguments asserted in Zuffa’s Reply Brief which rebuts Plaintiffs’ Opposition and supports the promotion’s contention that the Plaintiffs’ lawsuit contains no general issues of material facts and as a result must be dismissed.  The strongest arguments in my opinion seem to be the argument that other promotions do not appear to be harmed by Zuffa’s business practices.  Plaintiffs point out how the purported scheme may still impact other MMA competitors.

It is clear that Plaintiffs do not respond to Zuffa’s Statement of Undisputed Facts (“SUF”) in its Opposition.  Rather, they introduce their Counterstatement.  Procedurally Plaintiffs should have responded to Zuffa’s SUF.  If you do not, the statements are admitted as true.  Plaintiffs will likely argue that their Counterstatements are equivalent to a denial or rebuttal.  It would be up to the Court to determine this.  I would think that Plaintiffs would have been extra cautious with this filing and would have ensured that they would not deem anything admitted if they did not respond.  Notwithstanding this argument, the Court will need to decide this Motion.

Both sides have made strong arguments for why this case should go forward or be dismissed.  The question is whether there are material facts still to be decided with the lawsuit as it is currently framed for it to go forward to trial.  Zuffa makes strong arguments stating why it should be dismissed and premise Plaintiffs theories based on unverified assertions and a moving target of theories.  Plaintiffs maintain its basic argument that Zuffa’s market power dictated the rest of the industry and through its strategies, was able to suppress fighter rights and wages.

MMA Payout will keep you posted.

Reply Brief by on Scribd

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