Chavez, Jr. files lawsuit against NAC

December 5, 2019

MPO has obtained the Complaint filed by boxer Julio Cesar Chavez, Jr. against the Nevada Athletic Commission for declining a drug test administered by the Commission. The boxer hopes to prevail with an injunction filed in conjunction with the Complaint as he has a fight December 20, 2019 in Phoenix, Arizona that is at risk of being cancelled.

The lawsuit, filed in Clark County, Nevada, argues that Chavez did not hold a Nevada boxer’s license and was not subject to a NAC drug test.  According to the Complaint, an October 24, 2019 drug test at the Wild Card Boxing Club in Hollywood, California was turned down by Chavez.  As a result, on November 20, 2019 the NAC issued a temporary suspension to Chavez for his failure to participate in the drug test.  Chavez contends that since he was not licensed by the Commission, he had no obligation to participate in the drug testing process. He also argued in his complaint that the suspension of an unlicensed boxer is not permitted by law.

Chavez, Jr. is scheduled to fight Daniel Jacobs in Phoenix, Arizona on December 20th.  The fight, originally scheduled for the MGM Grand Garden Arena on the same date, was moved to Phoenix due to the November 20th ruling by the NAC.  The lawsuit hopes to allow Chavez, Jr. to fight despite the denial of a drug test.

A preliminary injunction will take place to determine whether Chavez, Jr. can fight on December 20th.  If granted, the fight is on, if not, one might expect that it would add to any potential damages in the lawsuit.

Complaint by Jason Cruz on Scribd

Payout Perspective:

Its important to note that Ross Goodman is the attorney for Chavez, Jr.  He also represented Wanderlei Silva in a similar case which went up to the Nevada State Supreme Court to address the issue of whether the NAC had jurisdiction over an unarmed combatant not licensed within the state.  The State Supreme Court did not issue a ruling as the underlying issues regarding Silva’s ban was not clarified by the commission.  Thus, there was no clear ruling on the issue.  Here, Goodman may get a second chance to determine what might be a loophole in the NAC code.  MMA Payout will keep you posted.

 

Ferguson TM application, Champ Sh*t Only, preliminary denied but he gets another chance

November 26, 2019

According to reports from multiple MMA media outlets, it looks like Tony Ferguson and Khabib Nurmogomedov will once again try to fight one another barring injury in April in Brooklyn, New York.  Ferguson has been branding his tweets with a Champ Shit Only TM for which he’s applied for the mark but has yet to obtain.  Currently, the USPTO has denied its use as the examiner believes it should not be registered.

According to an Office Action issued on November 15, 2019, the attorney examiner noted that the proposed mark, Champ Shit Only, has failed to function as a service mark for purposes of registration as a trademark.  The examiner notes that the specimen (below) does not “identify and distinguish applicant’s services.”  A specimen is used for trademark applications to show evidence on how a mark will be used.  For instance, if you have an apparel line named Nike, you would use as a specimen a picture of a t-shirt with a Nike symbol on it to reflect how the mark would be used (there are exceptions to this rule but we are giving generalities here).

Ferguson’s attorney stated the description of the mark, Champ Shit Only, would be used for the following:

Entertainment in the nature of competitions in the field of mixed martial arts; Entertainment services, namely, live, televised and movie appearances by a professional entertainer; Entertainment services, namely, providing a web site featuring photographic, video and prose presentations featuring mixed martial arts; Entertainment services in the nature of professional athletes competing in mixed martial arts; Entertainment services, namely, live appearances by a sports celebrity; Entertainment services, namely, televised appearances by a sports celebrity

The attorney examiner states in denying the mark application:

Here, the specimen shows that applied-for mark in a tweet above a photo of a fighter. The applied-for mark, as shown on the specimen, does not function as a service mark because purchasers are likely to perceive the mark merely as a caption for the photo, rather than identifying the source of entertainment services in the field of mixed martial arts. It is unclear from the services whether applicant is offering any services in connection with the mark CHAMP SHIT ONLY. Moreover. The source of the tweet the applicant, Tony Ferguson, which suggests that the source of any of the offered services is “Tony Ferguson,” not CHAMP SHIT ONLY. Accordingly, the mark, as used in the specimen, fails to function as a source indicator for the identified services.

Notably, the application states that Ferguson has been using the mark since May 10, 2019, which is the date of the picture.

However, on November 19th, Ferguson’s attorney changed the designation from 1(a) to 1(b).  Essentially, what that means is that the application has changed from currently using the mark to an intention to use the mark.  The latter means that the mark has yet to be used although it is the applicant’s intent to use in the near future.

What is significant in this change is that it allows time for Ferguson to use the mark as it is described.  He does have to submit evidence of use.  Alternatively, he could also submit another specimen.

Payout Perspective:

Interesting enough, what not is identified, is the sale of merchandise or apparel which would make sense with Ferguson’s “catch phrase.”  As for the use in the “entertainment” sense as described, I’m not sure if there’s a plan to show how Ferguson’s saying will be utilized to show his entertainment services.  Certainly, there could be a cryptic reason for the use of Champ Shit Only for entertainment services, but that would have to be described for an attorney examiner at the USPTO to understand.

To conclude, it’s entirely possible that Ferguson ends up with the trademark, but he’d have to show his use of the mark for the reason identified.  But, at this point, the original application was preliminary denied.  So, the mark is not for the Champ…yet.

Court dismisses Hunt’s last claim in lawsuit against Zuffa

November 23, 2019

Mark Hunt’s lawsuit against Zuffa has ended as a federal court in Nevada dismissed the remaining cause of action for claiming a violation of the covenant of good faith and fair dealing in contract.

The meat of Hunt’s lawsuit, which spanned 10 causes of action and included Brock Lesnar and Dana White was dismissed this past spring as the Ninth Circuit Court of Appeals affirmed the District Court ruling siding with the opinion of the trial court that Hunt’s claims lacked factual merit.

There was no further opinion on the dismissal of Hunt’s last claim.

Final Judgment by Jason Cruz on Scribd

Payout Perspective:

As we’ve analyzed Hunt’s lawsuit, it was apparent that while he may have had a viable claim, he could not prove damages for the claim.  Obviously, the need to have a viable, legal claim for damages is a part of winning in court.  And, Hunt just could not prove it.  His claims for loss were remote according to the court.  It does not necessarily mean that his claims that the UFC inability to prevent Lesnar from fighting while using an alleged PED didn’t harm Hunt, it just didn’t in a way which the New Zealander could prove in court.  Moreover, the court’s opinion focused on the fact that there was nothing unusual in which Lesnar harmed Hunt in the Octagon.  While this may sound odd, the court relies on prior case law where the standard for determining personal injuries outside the scope of the sport is premised upon whether the alleged injury was something related to the sport (e.g., a California court found it foreseeable that a baseball player could be injured by a pitcher throwing a baseball at a batter’s head).

It didn’t appear that Hunt’s lawyers put up much of a fight after 9 out of his 10 claims were dismissed.  Rather, it seemed that the lawsuit was disregarded after the appellate court sided with Zuffa.

AEW revives Bash at The Beach, but WWE still owns similar trademark

November 18, 2019

All Elite Wrestling issued a press release on Monday announcing the reboot of the Bash at the Beach event which was made famous by WCW.  However, the trademark for the event name is facing an issue with trademark registration with the USPTO as an office action details issues with an existing mark.

Bash at the Beach will coincide with Chris Jericho’s second annual cruise from Miami, Florida in January.  On January 15, AEW’s television show on TNT, Dynamite will hold an event at the University of Miami with a “Bash at the Beach” themed episode and then continues with Jericho’s cruise through Jan. 20-24. The week’s following Dynamite episode will take place on the cruise.

The Bash at the Beach was registered by Cody Runnels and his attorneys on March 18, 2019.  The filing was premised upon Section 1B of the Trademark Act which notes that the mark will be used in commerce but had yet to be used.

The mark’s intended use is for:  Entertainment in the nature of wrestling contests; Entertainment services in the nature of a wrestling club, Entertainment services, namely, wrestling exhibits and performances by a professional wrestler and entertainer; Providing wrestling news and information via a global computer network.

On May 20, 2019, a non-final Office Action was issued by the Attorney Examiner citing its initial decision to refuse registration due to a likelihood of confusion with an existing mark which is owned by WWE.  The mark, The Bash, was registered on December 13, 2011 and is still an active mark according to the USPTO.  Notably, the other marks regarding WCW’s Bash at the Beach have been abandoned.

Despite the fact that The Bash and Bash at the Beach do not have the same words, the attorney is refusing registration at this point because of its likelihood to confuse consumers.  Per the Office Action, “the dominant portion of the registrant’s mark, “BASH” is the first and dominant term of the applied-for mark BASH AT THE BEACH.  The marks sound similar and have a similar meaning when viewed in the context of the wrestling services to which they relate.”  Thus, the conclusion that they share the same overall commercial impression.

Payout Perspective:

Even if Cody’s attorneys are able to overturn the decision and allow Bash at the Beach to be registered, one might expect the WWE to step in and oppose the registration.  The question will be whether AEW will be impacted prior to their event in January from using the name.

College student, Scrap Pack and Yang Gang member Smith ready for fight

November 7, 2019

As Leslie Smith prepares for what may be a number one contender fight against Arlene Blencowe this Friday in Thackerville, Oklahoma, she has learned to manage her time training and going to school.  Smith is working on her Bachelor of Science in Labor and Employment through online courses via Rutgers University.  She has 60 more credits left to finish her degree and then plans on heading east to New Jersey to study for her Master’s degree in the subject at Rutgers.

Courtesy Bellator MMA

Its well-documented Smith’s interest in labor, employment and the law.  She founded Project Spearhead as a means to organize fighters.  She also filed a grievance against her previous contracted employer, the UFC.  Although her case looked promising, the NLRB reversed course and denied her claims that the UFC was treating its contracted fighters as employees.

“I actually am really happy by the fact that I’m doing it,” Smith said of going back to school.  “It makes me a lot more proud of how I spend my time.”  Smith has been taking online courses, studying, writing papers and managing her training schedule.  “I feel really happy that I’m training my body and my mind.”  She emphasized that school and MMA have helped her prioritize her schedule and manage her time more effectively.

Smith joined Bellator this past summer and debuted with a majority decision victory over Sinead Kavanaugh.   She is now positioned to be in line for a shot at the women’s bantamweight title with a win on Friday night.

Smith did the majority of her training at the El Nino Training Center in Northern California with the Scrap Pack for this fight against Blencowe.  Despite the fact that some of the more famed members were in New York to help prep Nate Diaz for his fight at UFC 244 against Jorge Masvidal, Smith had ample training partners and coaches to get her ready for her fight.

Smith is prepared for a standup fight with Blencowe who enters this contest with two KOs in her last two Bellator fights.   “I’m just working on being me,” Smith added about preparing for the former female boxer, “I’m sharper and tighter and even more dangerous.  My style in general is going to match up well.  She’s never faced somebody like me.”

In her promotional debut, Smith was a little surprised that her opponent didn’t “bring it” the entire time.  “I thought [Kavanaugh] she was going to stand a little more instead of kind of running.”  Smith won the majority decision this past July.

Not only is Smith of the Scrap Pack, she is also a part of the Yang Gang as a staunch supporter of Democratic candidate Andrew Yang for President.

To borrow a phrase from fellow stablemate, Nate Diaz, “I’m not surprised,” Smith said of the popularity of Yang’s campaign.  “I think the freedom dividend will do big things for the economy,” said Smith of Yang’s idea to provide $1,000 a month for each adult American.  “He’s got a lot of people who are smart that are very excited about him.”

Smith introduced Yang at a campaign stop in San Francisco this past March.  Notably, Yang has supported the rights of mixed martial arts fighters in organizing a union or association to advocate for their rights as well as an expansion of the Ali Act to cover mixed martial artists.  Smith spoke passionately about the inequality in the United States noting that the disproportionality of income in the nation is at the same levels as it was in the 1920.  “I feel like a part of that is that a lot of these large companies have figured out how to take advantage of the gig economy.”  “Andrew Yang’s plan is going to be huge for the economy.”

As for the showdown against former boxer Belcowe on Friday, she is ready to stand and bang.  Smith sees that with a win against the Australian, she deserves a shot at Featherweight Julia Budd.  “This is really exciting to be in a promotion that is merit based and get the opportunity to fight for the title.”

Zuffa files Reply Brief seeking to include Silva testimony in Antitrust Lawsuit

October 23, 2019

Zuffa has filed its Reply Brief in its hopes of Judge Richard Boulware changing his mind with admitting testimony of Joe Silva in the UFC Antitrust Lawsuit.

During the evidentiary hearing of Joe Silva, Zuffa attorneys attempted to ask the former matchmaker about “wage share” but was shut down by Plaintiffs who objected to the testimony and Judge Boulware sided with them.  As a result, Zuffa could not provide Silva’s testimony that he did not pay fighters based on event revenues.  He also claimed in a Declaration submitted with Zuffa’s Motion for Reconsideration that indicated that he “did not know Zuffa’s event revenues” in negotiating athlete compensation.  He also noted in his declaration that he was never told about whether had a budget for athlete compensation nor Zuffa’s event revenues when he negotiated athlete compensation.

Zuffa Reply by Jason Cruz on Scribd

Zuffa argues that Silva was asked to testify regarding “facts within his personal knowledge.”  It did not ask Silva offer testimony regarding the economic concept of “wage share.”  Here, Zuffa tries to parse the testimony and separate expert testimony versus fact testimony.  Plaintiffs and the Court believed that Zuffa attempted to illicit expert testimony rather than factual information.  The Reply Brief asserts, “Zuffa’s counsel…asked Mr. Silva factual questions about whether he was ever instructed, or tried, to meet any sort of wage share target or whether any athlete ever asked to be compensated based on revenue from an event.”

Declaration of Joe Silva by Jason Cruz on Scribd

Also, since it argues that Silva’s testimony was factual, there was no duty to disclose testimony he might state regard wage share. This rebuttal addresses Plaintiffs argument that Silva had not offered any testimony in his deposition on wage share.  Zuffa also clarifies Plaintiffs claim that fighters would ask for a percentage of event revenue.  The athletes that had PPV clauses would receive a portion of the “marginal pay-per-view purchases at a particular event.”

Payout Perspective:

While Zuffa’s reply to the opposition filed by Plaintiffs is persuasive, it is still facing an uphill battle since the motion to reconsider the court ruling goes back to the Judge to determine whether he made a mistake.  Usually, to overturn a ruling, the moving party has to show that there was an error of law made by the Court and/or the Court did not consider legal precedent.  Thus, the prospects of the Court overturning its original ruling appear slim.  If the ruling does not go in Zuffa’s favor and the Court subsequently grants class certification, look for an appeal based on this potential denial of testimony.

Aspen Ladd loses CSAC appeal as TKO upheld

October 15, 2019

UFC women’s bantamweight had her appeal of her sudden first round KO by Germaine de Randamie denied by the California State Athletic Commission. Ladd attempted to change the loss to a no-contest based on referee Herb Dean’s quick stoppage.

The fight was the main event of a UFC Fight Night in Sacramento this past July.  Ladd, a local to the area, was stopped in the first munite of the fight by a de Randamie punch.  The previously unbeaten Ladd was floored but before she could attempt a defense, Herb Dean called an end to the fight.

Ladd’s manager filed an appeal to the fight claiming that Dean was out of position to make the call that her fighter was in peril.  In further correspondence with the commission, Ladd claimed that the fight was stopped prematurely because she was a woman and if the fight involved men, it would have continued.  Originally, Ladd’s manager filled out the Appeal Form provided by the State of California checking a box that there was collusion involving the referee.  But, it was later changed to another box citing a violation of a rule or regulation.

The referee of the match-up, longtime veteran Herb Dean, stated he did not stop the fight based on gender.

Dean has been criticized for stopping matches too late and/or too soon.  Nevertheless, it appears that this was another judgment call made by Dean.

The below was his official statement sent in to the commission prior to Tuesday’s hearing:

In addition, de Randamie sent her own statement which, as one might expect, supported Dean’s decision to stop the fight.

The Commission entertained the gender discrimination claim citing that it would be a violation of anti-discrimination laws if this were the case.

But the problem with Ladd’s claim as it was presented to the Commission was that it was just anecdotal.  Meaning, she can argue that women fights are stopped quicker than male fights but without valid data proving this theory, its just conjecture.  While the vote was 3-2 in upholding the TKO loss (Ladd’s only blemish), the decision by Dean to stop the fight is a judgment call and unless there was compelling evidence that there was a stoppage based on her gender, there was no evidence suggesting Ladd’s claims were true.  Moreover, there was no rule or regulation cited which would point to evidence that a rule or regulation was not followed.  Simply put, while it may have been a bad referee call, Dean made his decision.  The job of a referee is hard because they are criticized for letting fights go on too long allowing a hurt fighter to suffer unnecessary damage and then, like in this case, they don’t let a fight continue.  In this instance, its likely the right call was made to uphold the appeal.

Hoping for title fight, Pulev asks Court for Andy Ruiz contract

October 14, 2019

Heavyweight boxer Kubrat Pulev asked a New York federal court access to obtain Andy Ruiz’s contract from the short-lived lawsuit in August between Ruiz’s management and that of Anthony Joshua. The Court denied the letter request but left open the question if Pulev were to bring a motion before the Court.

The lawsuit was filed to the parties agreeing to a rematch of Ruiz’s upset victory this past June.  In the lawsuit filed in New York, Matchroom Boxing, Joshua’s promoter, sued TGB Promotions and Ruiz for breach of contract.

Matchroom Boxing claimed that the Provision of Services Agreement entered into by Ruiz included language which allowed Matchroom the right to choose the venue for the fight.  Ruiz claimed that he would have any rematch with Joshua in the United States despite the inference that Matchroom controlled the rights to a rematch.  Notably, the lawsuit has redacted passages from the contract which Pulev’s camp would like to see as a potential next opponent for the winner.

Matchroom claims that TGB Promotions has done nothing to correct Ruiz about solidifying the rematch in terms of place and price.  Moreover, Matchroom claims that TGB has threatened to sue based on defamation charges.

While the squabble over venue has been rectified with the dismissal of the lawsuit, an interesting ex parte motion took place last week when Pulev’s attorney sought the POS Agreement from Ruiz that was filed under seal in the lawsuit.  The Court was to decide the sealing of the contract on August 30th but the parties resolved the matter on August 26th rendering the sealing of the POS Agreement moot.  However, the Court noted that Plaintiffs had failed to show adequate support for sealing of the POS Agreement which Pulev used as argument to unseal the document for public view.

Endorsed Letter Re Pulev – … by Jason Cruz on Scribd

The Court denied the request by Pulev but noted that if it were to bring it with proper notice to Joshua and Ruiz it would consider the request.  This would allow the parties to argue their points to seal or not seal the contract.

Pulev is contending that Ruiz should have to defend the IBF heavyweight title against the number 1 challenger, Pulev, instead of a rematch with Ruiz.  Also, it argues that Ruiz was to have requested and paid the exception fee to allow for a “step-aside” to defend against Pulev.  Pulev claims that Joshua paid the $20,000 exception fee on behalf of Ruiz.

Specifically, Pulev believes that there is a prohibited rematch clause per IBF Rule 3.B:

No contract for a Championship contest shall contain any clause or any provision, whatsoever, guaranteeing or in any way assuring or promising either contestant a return Championship contest where such clause or provision interferes with the mandatory defense of a title.

Pulev appealed the exception allowed by the IBF last week.  One has to believe that this was denied since the $20,000 fee was paid.  Pulev is looking for the contract to see if it might have legal grounds to sue and prevent the Joshua-Ruiz fight from having the fight.  One has to think that the strategy is to seek an injunction of the fight scheduled for Saudi Arabia.  While this may not happen, this uprising by Pulev may get it some sort of assurance to fight the winner of Joshua-Ruiz.  MMA Payout will keep you posted.

More documents from UFC antitrust hearing reveal Joe Silva’s negotiations

October 10, 2019

More documents were reveled recently in the UFC Antitrust Lawsuit.  The documents reveal email communications between Joe Silva and managers regarding contract negotiations for fighters.  Overall, it would be hard to call it “negotiations” as the UFC flexed its leverage over fighters in making them capitulate.

In one exchange, Silva has a back and forth with the manager for Bang Ludwig when the current coach and former UFC fighter was coming up for new contract.

The crux of the negotiation was Ludwig’s manager attempting to get Silva to pay $18,000 to show and $18,000 to win.  At the time Ludwig was coming off of a split decision win in Germany.  Ludwig’s representative told Silva through email that he had spent out of pocket $4,000 for the fight in Germany.  In addition, he was experiencing monetary issues at the time.   Silva was dead set on $16,000 and $16,000.  He indicated that the win in Germany was a “gift” and that he could not reconcile paying Ludwig more than other similar situated fighters.

Ludwig’s manager had countered his $18,000 and $18,000 request with $17,000 and $17,000 but the email communication did not mean that Silva budged.  In fact, he did nothing but hold to his original offer.

In another email exchange with UFC fighter Ricardo Almeida, Ally Almeida, his wife acting as his manager attempted to negotiate the contract with Silva.

Silva offered a 6 fight deal with 2,000 incremental step-up in pay if he were to win starting at $20,000 and $20,000.  Almeida’s wife countered with $5,000 step-ups in pay if he won.  Also, she inquired about a shorter 3 fight deal.  Silva immediately nixed the conversation.  He indicated that he could only do a 6 fight deal because he wanted to ensure that they could properly build the fighter.  He did offer Almeida a $10,000 signing bonus. The below email highlights the offer.

Almeida decides to capitulate and accept the 6 fight deal.

Payout Perspective:

The email communications are helpful to see the type of negotiation going on with the company.  The fact is there was actual no negotiations going on as most were take it or leave it deals.  More of the emails submitted in discovery saw Silva providing fighters with new deals when going on the last fight of their contract.  These communications happened prior to a time when there were other options out there and fighters decided to fight out the terms of their contract.  Most of the examples offered by the Plaintiffs show that Silva would offer small raises with a $2,000 step in pay if the fighter won their fight.

The question for the case would be whether these instances showed anti-competitive conduct by a company with broad market power. Tough negotiating, or just not negotiating aren’t itself evidence of anti-competitive conduct, but it infers a course of conduct that Zuffa implemented which foreclosed competitive wages.  MMA Payout will keep you posted.

Plaintiffs in UFC Antitrust Lawsuit file Opposition to Zuffa’s appeal for use of Silva testimony

October 9, 2019

The Plaintiffs in the UFC Antitrust Lawsuit have filed an Opposition to Zuffa’s Motion for Reconsideration of the inclusion of testimony from Joe Silva.  The Court had sided with Plaintiffs in preventing Silva to testify about wage share at his evidentiary hearing last month.

Zuffa filed a Motion for Reconsideration seeking that Judge Boulware rethink his decision and allow the testimony and an additional Declaration of Joe Silva affixed to the motion.

Zuffa Motion for Reconsider… by Jason Cruz on Scribd

In turn, Plaintiffs filed an Opposition to the Motion which included a Declaration from Joe Silva which indicated that he did not know Zuffa’s event revenues when he negotiated athlete compensation, did not have a budget for athlete compensation or was ever told that he “was spending too much on athletes.”

Payout Perspective:

 From a practical viewpoint, unless the moving party can tell the Court that it overlooked legal precedent when it made its ruling, the motion will likely fail.  The reason is that it goes before the same person that made the initial ruling.  In all likelihood, the Judge is not going to switch course. This could be an issue that may be brought up on appeal if the Court denies (and it likely will) Zuffa’s motion.  While it was a little curious that the Court did not allow the testimony, it does come in line with the determination that Silva was not an “expert” witness but a fact witness with knowledge about how Zuffa paid its athletes.

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