Former wrestler sues Activision over video game character

February 19, 2019

Former professional wrestler Booker T (real name Robert Huffman) has sued Activision claiming that a character in the video game maker’s Black Ops 4 resembles a character he created.

“G.I. Bro” is a character created by Huffman for a comic book series.  He even wrestled under this name for a short time.  The lawsuit claims that Huffman has filed for all the requisite copyrights for GI Bro and did this prior to Activision’s use of the character in its latest video game.

As a result, Huffman claims copyright infringement as a result and is requesting that a jury decide the case.  The lawsuit is filed in a federal court in Texas which is notorious for leniency of plaintiffs bringing patent law cases.  Perhaps Booker’s attorneys hope for the same “home field” advantage here.

It is worthy to note that several years back, UFC fighter Felice Herrig claimed that a Mortal Kombat character looked similar to in appearance and may have been based on her.  Fortunately for Herrig, she did not file a lawsuit and perhaps was looking for some publicity and a tie-in with the video game maker.

Booker T sues Activision by on Scribd

Alas, unfortunately for Booker this lawsuit is getting widely panned by copyright law experts.  The character created by Huffman may have similarities to the video game character named Prophet, but in the video game series there is a backstory for the character which would differentiate itself from the Bro character. Moreover, there is nothing similar between the two characters aside from the depiction.  They are not similarly named or have the same story or are from the same genre which are very important if you were to have a legitimate copyright infringement claim.

Also, we have Lindsay Lohan’s failed attempt at a right of publicity lawsuit when she attempted to sue Grand Theft Auto for a character that resembled the actress.  While not a copyright lawsuit, the opinion clearly made a distinction between characters that had similar features but did not break any type of copyright or right of publicity laws.

Former managers of Bellator Heavyweight sue for breaching representation contract

February 15, 2019

The former manager of Vitaly Minakov has sued his current manager Ali Abdelaziz along with Minakov in Orange County Superior Court in California last month.

RusFighters LLC, Minakov’s former agency is suing Minakov and MMA Manager Ali Abdelaziz alleging breach of contract, intentional interference with contractual relations and declaratory relief.  The lawsuit was filed on January 16, 2019 in Orange County Superior Court as one can infer that Bellator’s contract has a clause that all lawsuits arising under the contract are litigated in Orange County.

Minakov has a showdown against fellow heavyweight Cheick Kongo on Saturday night.

According to the lawsuit, Minakov signed a contract with RusFighters to represent him in February 2016.  Minakov agreed to pay RusFighters 20% of the gross “performance compensation” he receives for each fight.  The heavyweight’s former agents claim that the contract ended on February 13, 2019 and he could not retain another agent until this date.

The Complaint states that Minakov signed on with Abdelaziz in August 2018 and he helped the heavyweight sign a six-fight deal with Bellator with a downside of $300,000 per fight with a total minimum value of $1.8 million.

Payout Perspective:

This appears to be an accusation of client-poaching with Abdelaziz working with Minakov without RusFighters knowing.  One need only look to the Leslie Smith/Nate Diaz agent dispute to see that switching agents may lead to disputes. This lawsuit is gaining some notoriety since it includes Abdelaziz, one of the more polarizing agents in MMA (just ask MMA fans).  Without a response yet from Minakov, one might expect that he will claim that the contract with his former agency was oppressive (20% gross) and/or they did not deliver what Minakov wanted.  The 3-year deal between Minakov and RusFighters will certainly be challenged.  The terms (6 fights x $300K per fight) that Abdelaziz allegedly negotiated for Minakov seem to be at the top of end for a Bellator fighter.  RusFighters may have been able to obtain the same terms but that is difficult to know at this point.  MMA Payout will keep you posted.

Court dismisses all but one claim in Mark Hunt’s lawsuit against the UFC

February 14, 2019

In a 28-page order filed on Thursday, the United States District Court of Nevada dismissed all but one of UFC fighter Mark Hunt’s claims in his lawsuit alleging among its claims breach of contract, fraud and RICO Violations against the UFC.

The Order dismissed White and Lesnar in the lawsuit  leaving just the UFC as the lone defendant.  For background of the case, you can go here.

An analysis of the Motion to Dismiss hearing is here.

Order on Motion to Dismiss by on Scribd

The Court had allowed Hunt the right to amend his Complaint to include further details supporting his claims under RICO Act violations and fraud. However, the Court was not persuaded by Hunt’s amended and supplemental complaint.

In total, 9 out of the 10 claims in Hunt’s lawsuit were dismissed.

The Court determined that Hunt’s claims under the state and federal RICO statutes failed because either the allegations were “non-cognizable damages or failed to plead facts to show” a proximate cause to his financial losses.

The Court specifically took aim at Hunt’s loss to Lesnar at UFC 200.  The Court did not agree with Hunt that due to his loss to Lesnar, it proximately caused ancillary injuries to Hunt including cancelled promotional events post-UFC 200 costing him over $90,000 in appearance fees, a “dip” in his social media popularity and diminished advertising fees as well as a loss of licensing fees and sales for his personal clothing brand.   Here, the Court could not side with Hunt and believed that his RICO allegations failed for lack of proximate cause as they were “fatally speculative.”

In response to Hunt’s arguments that it could introduce expert testimony at a later stage of litigation to show the causation, the Court cited to precedent which stated that “it does not mean that the mere possibility of expert testimony down the line can rehabilitate allegations that insufficiently establish proximate causation.”  Moreover, the Court concludes that his claims cannot prove that Hunt would have beaten Lesnar if he was not doping.

As for the allegations related to White and the UFC, the Court infers that Hunt relates his claim to the removal of his fight from UFC Fight Night 121 (“referred to as UFC 121 in the order”) after he wrote an article claiming to suffer from slurred speech and other maladies he attributes to fighting.  The Court found fatal defects in the pleading as this was the portion of his claim in his Supplemental Complaint.  But he did not provide sufficient notice to the defendants.  Nevertheless, the Court dismissed the claim as it believed that the costs he attributed to training camp as not financial losses that do not constitute damage to “tangible property” under the RICO statute.

The lack of proximate cause also proved fatal for Hunt’s claims against White for alleged “aiding and abetting” and common law fraud.  Here again the Court refers to the lack of evidence linking White’s representations including the claim Lesnar was being tested by USADA with the alleged doping scheme.

The Court also dismissed Hunt’s breach of contract claim because he was paid for his fight against Lesnar at UFC 200.  In addition, the Court states that since Hunt’s damages relate to items that occurred after his loss, and not his contracted pay, the claim must be dismissed.

The Court determined that Hunt’s unjust enrichment claim must also fail because it stems from his contract with the UFC.  He received what he was owed in the contract and there is no compensation for Hunt’s perception that his services exceeded the scope of the contract.

Hunt’s battery and aiding and abetting claims fail because he consented to the fight with Lesnar.  Moreover, there was no evidence that Lesnar did anything outside “the range of the ordinary activity,” in an MMA bout.  The Court cites to a California case in which a pitcher intentionally threw a pitch at a batter’s head which injured 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 that he did something outside the scope of an MMA bout.  Thus, there is no battery claim against Lesnar.

Finally, the civil conspiracy claims must fail because the Court dismissed Hunt’s fraud and battery claims.  Since the underlying claims were dismissed, there cannot be a conspiracy claim.

The Court also authorized the remaining parties (i.e., UFC and Hunt) to attend a settlement conference.  In all likelihood, the parties will settle.

Payout Perspective:

In all likelihood, this case will be over after the settlement conference.  Cases for breaches of the covenant of good faith and fair dealing in contract have a low likelihood of victory for the plaintiff.  Based on the Court’s opinion which dismissed Hunt’s case for lack of proximate cause to his claims, it would only be a matter of time before Hunt’s last claim is dismissed.  This is an unfortunate result for Hunt.  While it’s clear that the allegations were tied together by a thread, it’s clear that he was tired of being put in the Octagon with opponents that failed drug tests. While Hunt may have had several good points in his lawsuit, the Court did not find anything of legal substance to keep the case afloat.  MMA Payout will keep you posted if there would be an appeal.

Boxer Austin Trout appeals District Court ruling moving Ali Act claims to arbitration

February 14, 2019

Boxer Austin Trout has filed a Notice of Appeal of a District Court ruling which moved his case against the World Boxing Organization to arbitration.

Late last year, Trout brought a Motion for Reconsideration hoping that the Court would alter its decision which includes claims which violate the Muhammad Ali Boxing Reform Act.  Among the issues was Trout’s claim that the rankings system overlooked the boxer.

The case, which was sent to the District Court of Puerto Rico because of where the promotion was headquartered dismissed the case citing an arbitration agreement in the WBO’s contract.  Trout argued that the lawsuit should remain in court because the WBO waived its right to the arbitration.  It also claimed that the Ali Act violations should remain in litigation and could not be arbitrated as an arbitration would allow the WBO to be bot a party and judge.

However, the Court in a minute order, without even a formal opinion, dismissed Trout’s Motion for Reconsideration of the verdict.

Notice of Appeal by on Scribd

Payout Perspective:

This case is not as salacious as the UFC antitrust lawsuit but may have as important implications for boxing and the Muhammad Ali Act Boxing Reform Act.  If this case is allowed to proceed in arbitration, it will be precedent that promotions may use as a workaround the Ali Act.  If promotional contracts indicate that disputes must be decided via arbitration, it takes away the threat of possible litigation under the act.  Moreover, if the promotion can be the arbitrator of the matter, boxers will undoubtedly see that this is unfair.  For promoters, most contracts include arbitration clauses to negate the threat of big legal bills and potential jury verdicts.  If promotions see the Trout case as precedent to craft contracts to include arbitration clauses to litigate all claims including Ali Act claims, it circumvents the bite the Ali Act may have had.

The Interview: Leslie Smith and Lucas Middlebrook

February 5, 2019

Leslie Smith and Lucas Middlebrook discuss the details of Smith’s NLRB dispute with the UFC and Project Spearhead.

The two will appear at the University of Oregon Law School on Saturday as part of the school’s Sports and Entertainment Law Forum.

For context on Smith’s Declaration discussed in the interview, it is attached to the appeal.  Also for more info on the whole dispute, see here.

NLRB denies Leslie Smith Ap… by on Scribd

Finally, apologies for the dog barking in the middle of the interview.  My bad.

NAC doles out punishments from UFC 229 fallout

January 29, 2019

The Nevada Athletic Commission handed out punishments from October’s UFC 229 melee with Conor McGregor and Khabib Nurmogomedov.  The NAC handed out its punishments at its monthly meeting on Tuesday.

Conor McGregor, who was represented by former UFC and WSOF exec Michael Mersch, received a $50,000 fine and a six-month suspension as a result of his part in the post-main event fight that broke out after his bout with Khabib.  Chairman Anthony Marnell III stated that McGregor was defending himself during the melee but indicated that his engagement with Khabib’s corner did not make him an innocent victim.  Executive Director Bob Bennett also stated that the pre-fight comments and trash talk from McGregor likely incited the issues.

Khabib Nurmagomedov received a nine-month suspension and a $500,000 fine for his part in the post-fight antics at UFC 229.  Khabib had climbed the cage after defeating McGregor to go after Dillon Danis in the crowd.  The commission indicated that the suspension could be reduced by up to 3 months if he is to do an anti-bullying PSA that must be approved by the commission.

Both Khabib and Connor suspensions are retroactive to October 6, 2018 and would be able to return by April 6, 2019 (assuming Khabib does the PSA).

Khabib’s cornermen, Zubaira Tukhugov and Abubakar Nurmagomedov were suspended a year by the commission and given $25,000 fines.  Each became physically involved in the post-fight.  Assuming their suspensions are also retroactive, they would not be able to return until October 2019.

Payout Perspective:

The sentences allow for Conor and Khabib to return to fight this spring which is optimal for the UFC.  If you are to interpret Khabib’s social media, he does not like the fact that he was given a stiffer sentence than McGregor.  Yet, one might anticipate a return fight between the two set for July’s International Fight Week.

McGregor and Khabib broker settlements with NAC prior to Tuesday hearing

January 29, 2019

The Las Vegas Review-Journal reports that Conor McGregor and Khabib Nurmogomedov have brokered settlements with the Nevada Athletic Commission prior to Tuesday’s hearing.

McGregor and Nurmogomedov were on the agenda for the monthly commission hearing to discuss punishment for October’s post-fight fight at UFC 229.  The melee saw the commission withhold Nurmogomedov’s purse in light of his actions.  It later reviewed video which also assessed liability to McGregor for his part in the post-fight altercation.

According to the report by Adam Hill, settlements were also reached with Khabib’s teammates Abubakar Nurmagomedov and Zuabaira Tukhugov.  Both were involved in the UFC 229 fracas.

The settlements have you to be disclosed although Bennett confirmed the settlement agreements.  The report indicates that the commission will agree to the settlement.

Payout Perspective:

Swift and without further discussion is likely what the UFC wanted to do with the settlement negotiations for the fighters.  One would think an ample fine and a suspension that will allow for each fighter to return by July’s International Fight Week is likely the forecast.

Report indicates “more than 525,000” new ESPN+ subscribers as a result of UFC debut

January 28, 2019

The Sports Business Journal reports that ESPN gained  more than 525,000 new subscribers as a result of the UFC debut on the network.

With its debut at Barclay’s Center in Brooklyn earlier this month, the company scored big (even with a delay) with the UFC.  The prelims drew nearly 2 million viewers with big numbers in other demos including the important A18-49 column.

The article reports on ESPN’s strategy of pushing its digital brand by handing out black “ESPN +” t-shirts for fans to wear during the UFC event at the Barclay’s center. It was part of a fan festival to bring in the company’s new partner.  It also had a special suite for press to show off its capabilities.

According to a press release from ESPN disclosed a day after the event the UFC Prelim card on the network drew 1.4 metered market rating which was the highest-rated UFC Fight Night Prelims on cable since 2013.  It also received over 568,000 subscribers of the ESPN + service where the early prelims and main card were aired.

Payout Perspective:

The latest disclosure in the SBJ article released on Monday indicates that there were approximately 43,000 subscribers that signed up for a trial version and then cancelled.  Yet the retention rates are superb considering the debut on ESPN did not have huge names.  It does seem ironic that the Flyweight division was featured yet, could be on the precipice of extinction.  A thing to monitor is how and if ESPN will continue to disclose these subscriber numbers (similar to how WWE has done it) and the retention rates.  Based on the debut, it looks like this could be the start of a promising partnership.

 

Proposed dates for further UFC Antitrust hearings won’t happen until August or September

January 21, 2019

If you were hoping for a resolution to the UFC Antitrust Lawsuit in 2019, we have some bad news for you.  It’s unlikely to happen.

A letter filed by the plaintiffs on Friday indicates that both sides won’t make an appearance in the courtroom until this fall.

Letter Re Scheduling by on Scribd

In December, Zuffa filed its Motion for Summary Judgment but prior to any decision, the Judge wanted to understand more of the information offered by the experts, specificially plaintiffs’ expert, Hal Singer.  The parties were to meet and confer on available dates.

As one might expect, lawyer calendars (as well as the Court’s) are packed.  Thus, the first available scheduling option proposed is for August 26-30, 2019 with Dr. Singer and UFC’s expert, Dr. Topel.  In the alternative, they proposed an evidentiary hearing which would start September 9th or 16th.

Payout Perspective:

Clearly, the Court moves at a glacial (without global warming) pace.  Clearing schedules for attorneys, the Court and the experts is quite hard and if you thought this was going to end this year, you (and I) were wrong.  Even with these hearings, there are the prospects of renewed motion for summary judgments and the class certification hearing (to determine if the case deserves class action status).  MMA Payout will keep you posted.

Update on Wilder-Povetkin appeal

January 16, 2019

When we last wrote about the Deontay Wilder-Alexander Povetkin lawsuit, Wilder had filed its appeal brief in which it sought the 2nd Circuit Court of Appeals to overturn the District Court decision which sided with Povetkin.

The legal drama has been long and winding and despite a jury trial that determined that the Russian boxer had taken Meldonium after January 1, 2016, the trial court sided with Povetkin’s attorneys after the WBC, the boxing governing body, had reversed course on its belief that Povetkin had taken Meldonium.

You had to wonder what was the court thinking?

The issue of money deposited in a trust account still remained a question.  Upon the court siding with Povetkin and his promoter, they demanded the $4.3 million held in escrow.

The Court opinion sided with Povetkin on the basis of the Bout Agreement entered into was the deciding factor.  It cited language in the World Boxing Council’s Rules and Regulations which stated that “any dispute or controversy” would be bound by the WBC.

Another layer of this dispute revolves around purse money placed in escrow for the fight.  Wilder had written the escrow company to hold the money until a court decided the outcome.  Povetkin and World of Boxing objected to this and sued claiming a violation of the duty of good faith and fair dealing.  In addition, they claimed that Wilder had violated the terms of the Bout Agreement and should be subject to a liquidated damages clause of $2.5 million.  Wilder was due $4.5 million to fight Povetkin while Povetkin was due $1.9 million.  In addition, there was a $715,000 bonus for the winner.

While Povetkin and his promoter claimed that they were the winners and should be entitled to the money sitting in escrow, Wilder appealed the ruling citing issues with the trial court ruling.

Our rundown on Wilder’s appeal brief from this past October is here.

In November, Povetkin/WOB’s attorneys filed its answering brief to essentially agree with the trial court’s ruling which negated the jury trial’s ruling and request that the appeals court vacate the jury verdict.

The attorneys argue that there was no breach of the Bout Agreement by the Russian as the contract vests discretion in the WBC to make all the decisions relating to the bout.

The focus of Povetkin’s brief cites that the WBC issued a supplemental ruling in November 2017 which stated that “it is not possible to ascertain that Mr. Povetkin ingested Meldonium after January 1, 2016.”  The basis was in line with the trial court when it sided with Povetkin in stating that the contract for the fight with Wilder contained no language “mandating that each fighter refrain from ingesting banned substances.” It would defer to the WBC on these matters on whether or not an athlete breached the contract.  This ruling set aside the authority of the trial court and deferred it to the WBC.

The power quote utilized by Povetkin in its response to Wilder’s appeal brief was that “the parties specifically agreed that the WBC’s decision on this question [anti-doping] would be conclusive.”  Povetkin’s attorney cite a NASCAR case which ruled that it should follow NASCAR’s rules.”  It also cited the Tom Brady Deflategate case as the District Court “improperly invaded the contractual authority of the NFL Commissioner.

The basis of Povetkin’s argument that the appeals court should uphold the trial court’s decision is based on its interpretation of the contract which indicates that the WBC is the arbiter of all claims under the Bout Agreement.  As a result, since it determined that it could not conclude that Povetkin ingested Meldonium post-January 1, 2016, he did not breach the contract.

This conclusion seems sound in a vacuum.  The court should defer to the contract.  But it doesn’t seem to harmonize with the factors in this case.  Namely, Povetkin’s failed drug test in April 2016 and the subsequent cancellation (or postponement) of the Wilder fight.  Perhaps the key issue here is whether the bout was cancelled or postponed as Wilder believed it to be cancelled while Povetkin argues it was postponed.

Povetkin argues that the bout was a postponement and it was not a breach.  It cites the Bout Agreement with the WBC rules which states that a scheduled fight may be “rescheduled…or postponed by the WBC.”

In addition, Povetkin’s attorneys argue that the trial jury decided an immaterial fact indicating that the question presented to the jury was whether Meldonium was ingested by Povetking post-January 1, 2016, but the Bout Agreement was not signed until April 11, 2016 and “there is no contractual provision covering the parties conduct prior to execution.”

Povetkin also stakes his claim to the money in the Escrow Account which was to award the purse amounts to each fighter as well as the commission fees.

Finally, Povetkin argues that it should be awarded fees for the anticipatory breach of Wilder.  The claim is that Wilder wrongfully repudiated the Bout Agreement by not showing up in Russia prior to the fight in May 2016.  Instead, Wilder flew home from his training camp in England once he learned that Povetkin had failed a drug test.  Povetkin claims that the bout was to be postponed but Wilder breached the Bout Agreement by treating it as if the bout was cancelled.

Wilder will have a chance to respond to Povetkin’s appeal brief once more prior to oral arguments which should happen later this year.  MMA Payout will keep you posted.

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