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.

Other residents join UFC’s Chiasson in lawsuit for June crane collapse

September 30, 2019

Macy Chiasson suffered a loss this past Saturday at UFC Copenhagen.  The setback is not as bad as what the fighter experienced this past June when her residence was damaged by a crane during a windstorm this past June. Chiasson has joined other residence of the building in suing the people they believe were responsible for the accident which caused one death.

Originally, Chiasson filed the lawsuit on her own.  Recently, other residents have joined the lawsuit which claims that the crane company that was working on an adjacent building and the apartment owner for the accident.

Chiasson stated that she lost everything as she was only able to grab her dog as she fled her apartment when she heard a noise and debris started to fall.

Omnibus Plaintiffs Petition… by Jason Cruz on Scribd

The lawsuit states that OSHA (Occupational Safety and Health Administration) fined the crane company over $150,000 for 14 violations related to this accident.  Obviously, Chiasson and other residents of the complex are fortunate to survive this horrific accident.  It’s clear that something went wrong with securing the crane during this type of weather and it will be a matter of determining who is at fault and what insurance will cover with respect to compensating Chiasson and the other residents that lost their homes.

Zuffa files Motion for Reconsideration regarding Joe Silva Testimony in UFC Antitrust Lawsuit

September 29, 2019

Zuffa has filed a Motion for Reconsideration from a Court ruling in the UFC Antitrust Lawsuit which sustained an objection and struck portions of the testimony of Joe Silva.  The former UFC matchmaker provided testimony in the UFC Antitrust in Richmond, Virginia this past Monday.

The Court took issue with the direct examination of Stacy Grisby, Zuffa’s attorney, asking Joe Silva whether he knew about wage share.  The Court sustained Plaintiffs’ objection citing that Silva had not previously testified to wage share and/or paying athletes based on Zuffa event revenues.  The Court also struck any testimony that Silva had given related to this.

Zuffa argues in its motion which asks the Court to reconsider its original ruling due to the fact that Plaintiffs had an opportunity to inquire about it during his deposition. Also, Zuffa claims that the Court had wanted to hear from Silva about his knowledge as to whether it had a practice of paying fighters based on event revenues and percentages.  Despite Plaintiffs’ claim that Silva was offering a lay opinion based on information that may need expert testimony (i.e. economic wage share), Zuffa argues that Silva’s testimony is based upon his own personal knowledge.

Payout Perspective:

It’s hard to think the Court overturns its own decision despite Zuffa’s assertion that the purpose of having Silva testify was premised upon his knowledge of what he new about how the UFC paid fighters.  Yet, it will be considered and appealable issue in the case that the Court grants Class Certification.  Notably, Zuffa has included the declaration of Silva which was likely included in the case the Court determines that Plaintiffs may have an opportunity to inquire about Silva’s knowledge.  The overarching issue here is preventing the strategy of unfair surprise on the part of a party.

Povetkin-Wilder lawsuit finally over

September 24, 2019

The long, winding and bitter lawsuit between Deontay Wilder and Alexander Povetkin and his promoter World of Boxing has come to an end with the parties stipulating an end to their lawsuit via a filing last week.

The two boxers were scheduled to fight in May 2016 in Russia but due to a failed drug test for Meldonium by Povetkin, the fight was called off. Semantics may have come in to play as Wilder claimed that Povetkin’s drug test cancelled the fight while Povetkin and his promoter claimed that Wilder’s refusal to come to Russia for the event forced the hand of the WBC to continue the fight.

Dueling lawsuits occurred with a contentious battle between the parties.  Despite a trial which saw a jury determine that Povetkin ingested Meldonium, siding with Wilder’s side, the case did not end there.  Yet, after trial, the Court sided with Povetkin and World of Boxing in its Summary Judgment motion deferring to the WBC’s Bout Agreement which was subject to the World Boxing Council’s Rules and Regulations.

The District Court’s Summary Judgment decision was appealed to the Second Circuit Court of Appeals where the court affirmed the lower court’s decision.  After the ruling there were threats to appeal the ruling to a full court of appellate judges or even the U.S. Supreme Court.  However, those threats went by the wayside as the parties agreed to the dismissal of the lawsuit.  Despite still having a defamation claim against Wilder, Povetkin and World of Boxing agreed to drop the claim.  The parties agreed not to pursue any costs it may have been entitled to.

The END by Jason Cruz on Scribd

Payout Perspective:

It’s likely that the parties wanted to put an end to this lawsuit and agreed to dismiss Povetkin’s alleged defamation claim against Wilder.  Notably, the escrow money in the amount of over $4.36 million that was left by the parties will go back to World of Boxing.  This is likely one of the reasons that Povetkin and World of Boxing was willing to concede on its defamation claim and costs it was entitled to as part of being the prevailing party.

Zuffa TMs BMF for future use

September 18, 2019

Last week Zuffa filed several trademarks with the United States Patent and Trademark Office for “BMF” and Bad Motherfucker in anticipation of its showdown in New York this November between Jorge Masvidal and Nick Diaz.

Diaz used the term during his post-fight interview at UFC 241 in which he called out Jorge Masvidal.  From there, the phrase and fight for the BMF belt became a thing.

Zuffa filed for the trademarks under Section 1(b) of the Trademark Act which the applicant intends to use the proposed mark but is not currently using it.  Of course, Zuffa intends to use the mark for UFC 244.

Zuffa filed for several uses of the term including Entertainment services, namely live stage shows and performances featuring sports and mixed martial arts, toy championship belts, toy mixed martial arts belts, jewelry, key chains and championship belts.

Additionally, it filed similar applications for Baddest Motherfucker.  Notably, the registration of this mark would not have happened but for a U.S. Supreme Court ruling which struck down portion of the Lanham Act precluding the registration of marks that were deemed “immoral or scandalous.”  Obviously, Motherfucker seems like an immoral or scandalous term.

Notably, there has been another application for Bad Motherfucker prior to Zuffa, but that application has been suspended.

Payout Perspective:

Some have questioned the UFC for securing these marks.  One of the reasons they did this was to ensure that another did not register the marks creating a legal issue.  Think how people used to squat on domain names.  There is also question that Donald Cerrone used the term before.  Well, that may be true but he never filed for the trademark.  And, if you ask if he has any rights, he’d have to prove that he created the term and it became so famous that he has a right to it.  Likely, a fruitless task which would only require Cerrone to payout a lot of money for no reason.

There are instances in which companies file for trademarks used by its independent contractors.  A day after Brock Lesnar coined the term “Suplex City” during a match at Wrestlemania,  The day after, WWE filed for the trademark and did well in selling merchandise with Lesnar’s phrase.

Thus comes the question of ownership.  Who owns “BMF” and “Baddest Motherfucker”?  Usually, under an employer/employee relationship, the employer would own the mark and its associated rights.  Diaz is an independent contractor as we are all well-aware.  The mark would belong to Diaz if there was a valid work-made-for-hire agreement or another written assignment agreement between the parties.  Assume there was no such thing.  In that case, in boils down to who filed for the trademark first.  Thus, that would be Zuffa.

 

The world of trademarks is an interesting thing and if you’d like to learn more or want to register something you can always talk to this guy. The application is still pending, so there is always a chance the application could get denied.  As far as timelines go, the November fight would have already passed before a decision would likely be made.

Zuffa, Plaintiffs in Antitrust Lawsuit file supplemental briefs

September 17, 2019

On Thursday of last week, the parties in the UFC Antitrust Lawsuit filed supplemental briefing per the court’s invitation.  The filings represent what amounts to the closing salvo in support or opposition of class certification in the lawsuit.

The briefs highlight the expert testimony elicited by the parties through the evidentiary hearings that occurred in late August and mid-September.

In essence, there are four elements to determine class certification.

But, in my opinion, the case for class certification boils down to two things:

  1. Whether Plaintiffs’ methodology of regression is a valid way to determine that there was an anticompetive scheme by Zuffa in which it restrained and/or suppressed fighter earnings through the use of exclusive contracts and shutting down rival promotions.
  2. Whether Zuffa’s business practices were in fact anticompetitive. As Zuffa asserts, they may be dominant in the relevant market, but that doesn’t mean it violates antitrust laws.

 

Supplemental Brief – Plaint… by Jason Cruz on Scribd

Supplement Brief – Zuffa by Jason Cruz on Scribd

Plaintiffs highlight their briefing by maintaining the antitrust theory that Zuffa’s monopsony power in the relevant input market for MMA Fighter Services through acquisitions, exclusive contracts and coercion was an anticompetitive scheme which shut down rivals and impaired the market for fighter services.  As a result, this reduced fighter pay below competitive levels.  Additionally, Zuffa’s tactics as alleged by Plaintiffs harmed competition for promoting live MMA events “because by shuttering rivals and locking-up a must-have input (i.e., fighters), it was the only place for “major league” MMA.”

The four threshold elements in proving the need for a certification of a class action lawsuit are typicality, commonality, numerosity and adequacy.

Here, Plaintiffs argue that despite Zuffa’s claim that coercion to re-sign with the promotion by individual fighters give rise to individual claims due to the fact specific nature of each does not give special significance to the fighters’ claim.  Plaintiffs assert that it is the overall effect of Zuffa’s scheme is common of all potential class members. They argue that the commonality of class member claims is based on Dr. Singer’s ‘standard impact regression model’ which assessed pay for each Class member.  Second, Plaintiffs showed Zuffa maintained a pay structure, “such that any general suppression of Fighter compensation it achieved through its Scheme would have had a widespread effect across the Class.”  Plaintiffs argue that it’s the commonality threshold of the class action elements that Zuffa has issues.

As for the ‘wage share’ versus ‘wage level’ debate which has been the forefront of the battle of the experts, Plaintiffs claim that they only need to show that ‘wage share’ is a “plausible or reliable method and that it is common.”

They also include argument in support of Dr. Singer’s methodology of Foreclosure Share which measures the percentage of Fighters subject to Zuffa’s Exclusive Contracts in his relevant markets and submarkets.  The most notable criticism by Zuffa was the alleged weighting of the share of a relevant market based on assessing Zuffa and non-Zuffa fighter pools in the Foreclosure Share analysis.  But Plaintiffs cite the fact that Dr. Topel conceded that better ranked fighters generate more revenues and thus are more valuable to a promotion than other fighters and weighting is necessary.  Also, they cite to case law which states that weighting is standard in antitrust economics.

Plaintiffs claim that Dr. Topel offered ‘an entirely new argument at the hearing,’ citing that Dr. Singer’s variables in his impact regression undermined his results.

Finally, Plaintiffs defended Dr. Zimbalist’s “yardstick method” when assessing damages in his expert report.  As you may recall, Dr. Zimbalist’s expert report was criticized by Zuffa for its use of team sports leagues such as the NFL, NBA, NHL as well as Top Rank Boxing when assessing the level of damages available to Plaintiffs.

Conversely, defendants argue that if there was a purported monopsony, it was a legal monopsony.  Zuffa argued that Dr. Toepel’s rebuttal to Dr. Singer’s regression method was that a “regression measuring an effect on fighter share could not distinguish a competitive market from one with competitive restraints because a rise in revenue in either would decrease fighter share.”  Therefore, Dr. Singer’s methodology and conclusion regarding foreclosure share is rendered useless according to Dr. Toepel.  Zuffa argued that its expert Roger Blair confirmed Dr. Toepel’s conclusion citing that in a competitive market you can get “two very different wage shares or revenue shares.”

The thrust of Zuffa’s argument was that it was its business acumen and its achievement in a competitive market drove revenue for the company.  It paid fighters more than its competitors and that is why the labor supply remained robust.  They argue that even if Plaintiffs disagree, the regressions do not prove whether an effect on wage share resulted from a legal monopsony of the purported anticompetitive scheme the fighters claim.

Additionally, to disprove Dr. Singer’s report, Zuffa identifies articles within it that are contrary to what Singer purported claims.  Zuffa also suggests that Dr. Singer’s “foreclosure share” misinterprets the law.  They point to a section where Singer explains why he selected 30-month contracts as his method of foreclosure.  He cites case law but there is no case law to be found in that portion of Singer’s report. according to Zuffa.  Maybe more telling is a journal relied upon by Dr. Singer that Zuffa has learned is a fraudulent academic journal.  Zuffa states that it has named itself similar to a reliable academic journal to purportedly cause confusion.

Payout Perspective:

As one might expect, we see to differing ways of approaching the final briefing.  Plaintiffs must prove that its theory of regression is valid and Zuffa’s scheme was anticompetitive.  Throughout the first week of evidentiary hearings, it appeared as though Plaintiffs did well in proving this.  However, Zuffa did well in undermining the findings of Dr. Singer’s report by allegedly disproving his theory.  MMA Payout will keep you posted.

Judge advises parties in UFC Antitrust lawsuit to file additional briefing to determine class certification issue

September 10, 2019

Judge Richard Boulware issued a Minute Order on Tuesday advising both parties that he would like additional briefing due this Thursday night.  The brief appears to be the final arguments prior to his decision on class certification.

According to the order, Judge Boulware is allowing the parties to file one supplemental brief of 15 pages “for the Motion to Certify Class and the parties’ submission should include all citations to the record or expert reports expressly requested by the Court.”  The order went on to state that the parties had until Thursday night at 10pm to file the briefs.  Additionally, for plaintiffs, they
“must explicitly identify in their brief all theories of liability upon which they seek to proceed regarding class certification, including monopoly and monopsony theories.”

Payout Perspective:

It seems as though we are nearing the end of the presentation of evidence in determining class certification.  The court will hear two more experts this week and based on this piece of news, we may not expect Joe Silva to testify.  He was scheduled to testify during the first week of evidentiary hearings but was unable to attend.  The request for briefing was intimated during the first week of evidentiary hearings and it could be interpreted  We now may see this boiling down to a decision from Judge Boulware on class certification.

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