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.

Mark Hunt lawsuit gone, but not forgotten

May 31, 2019

It appears that the Mark Hunt lawsuit will be coming to an end in the not-too-distant future.  With the parties dismissing their appeal to the Ninth Circuit, one might anticipate a settlement.  However, his case still presents an interesting legal issue that was not addressed by the trial court which dismissed most of his claims.  The question of whether there is an assumption of risk that a fighter will step in with another that is using PEDs.

In Hunt’s lawsuit, he filed a Civil RICO claim which alleged that the UFC and Dana White devised a scheme which allowed doping fighters to fight in the UFC.  The Court concluded that the scheme was “fatally speculative.” This, along with all of Hunt’s claims (save one) were dismissed by the trial court.

The trial court which decided the merits of Hunt’s case dismissed 9 out of the 10 claims in his lawsuit.  It held that the allegations were “non-cognizable damages or failed to plead facts to show” a proximate cause to his financial losses.

There were specific problems the Court had with the majority of Hunt’s claims.  Namely, his damages with respect to his allegations.  For non-lawyers, each of the allegations must have a duty, a breach of that duty, a proximate cause resulting in damages.  Here, the Court had issues with Hunt’s claim that his loss to Brock Lesnar at UFC 200 caused him to lose out on post-event marketing deals including loss of income from his clothing brand.  The damages claimed by Hunt were speculative in nature and could not stand as concrete damages.

The Court did not side with Hunt’s notion that doping fighters like Lesnar are “bigger, strong, faster, hit harder, and can handle damaging hits better,” and ‘misses the forest for the trees.’  As the Court explains, there are ‘numerous other factors’ that could account for why Hunt lost the bout or why it was (in Hunt’s view) such a lopsided defeat.’

In one of the more interesting parts of the Court’s opinion it dismissed Hunt’s battery and aiding and abetting claims against Lesnar because Hunt consented to the fight.  Notably, the Court highlighted that there was no evidence offered that suggested Lesnar did anything outside “the range of the ordinary activity,” in an MMA bout.

When it rendered its opinion citing that Lesnar did not do anything during their bout which was outside the “range” of ordinary activity in MMA, it cited to a California case in which a pitcher intentionally threw a ball at a batter’s head which injured the batter.  In a lawsuit over the damages claimed by 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 he did something outside the scope of an MMA bout.  Thus, there can be no battery claim against Lesnar.  And since there is no battery claim, the underlying claim of aiding and abetting cannot occur.

The parties have (presumably) settled their case but the notion that Lesnar’s participation while on PEDs poses the question of whether the use of illegal drugs is within the “range” of ordinary activity.  Certainly, that can be the scenario with the Court’s conclusion flipped on its head.  Specifically, if the Court interpreted the case law on the premise of whether the actions occurring were within the scope of what’s ‘normal’ within the sport.  Consequently, you might infer from the trial court ruling that PED-use is normal which it should not.

The Court seems to draw a distinction with what an athletic participant could expect as opposed to the potential for actions outside of the scope of normal athletic participation.

The tort doctrine of “assumption of the risk” is that a plaintiff should not be able to recover for injuries caused to the plaintiff if he or she willingly assumed the risk inherent in the activity.

So, is using PEDs a “risk inherent in the activity”?

There are obvious cases out there which have addressed the threshold question of a “risk inherent in the activity.”

The most notable case involving sports assumption of the risk was an impromptu football game during halftime of a Super Bowl.  In Knight versus Jewett, a football game between friends turned into a lawsuit when a man stepped on a women’s hand causing an injury which resulted in the amputation of one of her fingers.  A lawsuit was filed based on the claims of assault and battery and negligence.  The Court held that the plaintiff could not recover for her personal injuries since the injury occurred in the ordinary course of the football game.

As mentioned above, a baseball player suffered a brain injury when he was the subject of a “beanball” by a pitcher.  But the California Supreme Court stated that the “beanball” was a part of the game and any claim was barred by the assumption of the risk doctrine as it was based upon its anecdotal theory based on empirical data.  The dissent stated that assumption of the risk should be based on “what risk the plaintiff consciously and voluntarily assumed” and not what risks are inherent in a particular sport.

Arguably, Hunt could have asserted that the implementation of the UFC Anti-Doping Policy was a sign of a “risk inherent in the activity.”  It’s clear that Hunt consented to an MMA bout where he may receive bodily harm from his opponent.  But, is the inherent risk of testing UFC fighters a potential factor in the activity.  This is a broad interpretation as “activity” used by Courts is the actual activity occurring and not an ancillary part of the sport.  The Court that decided to dismiss the bulk of Hunt’s lawsuit viewed the “activity” as the bout with Lesnar and not the fact that Lesnar was subject to drug testing.  Moreover, there is no evidence that Lesnar specifically took PEDs to injure Hunt but he may have taken a banned substance to be able to compete with Hunt.  Whether taking a banned substance is “reckless” seems to be a factual claim.  On the other hand, the UFC Anti-Doping Policy anticipates the possibility of athletes using banned substances and Lesnar’s flagged tests reflects the fact that his behavior was not reckless but negligent.

With the appeal seemingly gone, the question lingers until another lawsuit occurs.  While Hunt’s RICO claims were tenuous at best, the question of assuming the risk in a sport and whether the injured person ‘consciously and voluntarily assumed’ the risk is a compelling question of law.  The dissent in the ‘beanball’ case is recognition that there are certain actions within sport that are not contemplated by an injured party.  Even if there are “inherent risks” in participating in a sport, whether a participant acknowledges the issue and voluntarily assumed the risk could be a concern in the future.

Mark Hunt files Notice of Appeal in his lawsuit against UFC, White and Lesnar

March 25, 2019

Mark Hunt has filed a Notice of Appeal to the 9th Circuit for a potential reversal of the District Court’s decision to decision 9 out of 10 of his claims in his lawsuit filed against the UFC, Dana White and Brock Lesnar.

Plaintiffs are seeking the overturn of the Court’s decision handed out on February 22nd in which U.S. District Court Judge Jennifer A. Dorsey dismissed 9 out of 10 claims brought by the UFC Heavyweight.  Among the claims, he brought allegations under the Civil RICO Act arguing that the UFC had conspired to allow fighters that use banned substances to compete in the UFC.  It also claimed that Brock Lesnar was guilty of battery as Hunt did not assume the risk of fighting an opponent on a banned substance.

The Court dismissed the claims citing no conspiracy and that Hunt had conceded to the involvement in the fight with Lesnar despite the failed drug test by the WWE performer.  The Court indicated that there was nothing out of the norm of ordinary activity in an MMA bout.

Payout Perspective:

While I believed that this fight in the courts would end in a win for the UFC, the Plaintiffs have appealed the decision which will cause a longer process for resolution.  Yet, if you are to look at this case from a legal precedent perspective, there seems to be an argument to be made with Hunt’s assumption of the risk in this case.  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.

Zuffa requests court to review Hunt ruling in antitrust case

August 29, 2018

Zuffa has filed a Motion for Leave to File Supplemental Authority regarding its Motion to Seal related materials in its Summary Judgment motion of Plaintiffs’ lawsuit in their antitrust case.

The supplemental authority is the recent ruling in the Mark Hunt case on Zuffa’s “Renewed” Motion to Seal Documents in that case.  The court previously denied the Motion to Seal but changed course in granting the “Renewed” Motion.  It should be noted that Hunt’s attorneys did not oppose the “Renewed” motion for some reason.

This Motion hopes to include this ruling in deciding the pending motion before the court in the Antitrust matter. They persuasively argue that Plaintiffs had referred to the previous Hunt ruling where the Court denied the sealing of records.  As Zuffa points out in this motion, the original order was “without prejudice” whereas the renewed motion was “with prejudice.”  The difference with or without prejudice is that “without” prejudice means that the ruling could be amended on a party’s motion.  With prejudice is the final ruling of the Court.

Supplemental Authority After Hunt by JASONCRUZ206 on Scribd

Payout Perspective:

The Hunt ruling, although I disagree with the outcome, will likely be considered in the antitrust case as it relates to similar documents.  Thus, the motion will be granted, and the Court will consider it as persuasive authority when determining whether or not to unseal the redacted materials by Zuffa.

Court changes course, rules in favor of Zuffa to seal and redact docs in Mark Hunt case

August 21, 2018

The Court in the Mark Hunt lawsuit against Zuffa, Dana White and Brock Lesnar granted Zuffa’s Renewed Motion to File Exhibits Under Seal and To Redact a Portion of Their Reply Brief.

Notably, Plaintiff did not file a response to oppose the “renewed motion.”  Originally, the court denied Zuffa’s request which seeks to seal and redact portions of the 2017 Promotional Agreement with Hunt.  The Court ruled that since this is a dispositive motion (a motion that may bring an end to the lawsuit), the party seeking to seal the record “must articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure…”  Included in the request to redact documents, the Zuffa Dana White attached Hunt’s Bout Agreement for UFC 200 and other Bout Agreements from previous fights on as exhibits to its Motion to Dismiss Hunt’s First Amended Complaint.  Denial of its Motion to Seal these documents presumptively means that they would be available for public viewing.

Order on Renewed Motion to Seal by JASONCRUZ206 on Scribd

Zuffa “Renewed” its motion although it did not cite to specific and compelling reasons to seal or redact. It did argue that it was “sensitive commercial information of the parties, the disclosure of which would cause the parties harm and jeopardize their competitive standing in the professional MMA industry.”

In the only two sentences which enlightens the reader on the rationale for the decision, the Court states, “[D]efendants claim that the agreements contain proprietary information, and that competitive standing with MMA promoters.  The court finds that defendants have identified compelling reasons that warrant sealing the exhibits…”  This explanation does not seem compelling at all.

 Payout Perspective:

This is a surprising and disappointing ruling from the perspective that the Court rationale was limited and did not offer up an explanation as to what had changed from its original ruling.  It also promotes the further practice of sealing and redacting based on vague notions that the information is “sensitive commercial information.”  It also may impact the Zuffa Antitrust lawsuit as that case is also in a battle with redaction of Zuffa business information.

Zuffa “Renews” its Motion to Seal in Mark Hunt case

August 12, 2018

Zuffa has “Renewed” its Motion to Seal Exhibits in its Motion to Dismiss Plaintiff’s Supplemental Complaint.  The Court originally denied Zuffa’s Motion to Seal but it now requests the Court once again.

Similar to a Motion for Reconsideration except Zuffa styles the Motion as a “Renewed” Motion.  In most instances, filing a Motion for Reconsideration requires new evidence not considered by the Court to prevail.   A “Renewed” Motion appears to be the same thing.

According to the Motion, it requests the Court to have the documents to remain sealed until the Court determines the results of it.  Originally, the Court was to release the documents on August 6.  Based upon a Pacer search, it appears that the Court is honoring this request.

The Court originally denied Zuffa’s Motion to Seal which included, among other things,  Hunt’s Bout Agreement for his fight with Derrick Lewis.  They also request to seal a Promotional and Ancillary Rights Agreement and a Letter of Agreement between Zuffa and Hunt from August 8, 2014.  According to Zuffa, the agreements are predecessors to the 2016 Promotional Agreement.  Additionally, there are “three Bout Agreements for different events that took place pursuant to the terms of the parties’ 2016 Promotional Agreement.”  Zuffa claims that these are “sensitive commercial information of the parties, the disclosure of which would cause the parties harm and jeopardize their competitive standing in the professional MMA industry.”

Renewed Motion to Seal by JASONCRUZ206 on Scribd

Payout Perspective:

Remember when Demi Moore’s character in “A Few Good Men” ‘strenuously objected’ after the Judge’s objection was overruled.  This situation is the same thing.  There is no real reason that a Court would rethink a previous ruling unless something arose post-ruling.  But, that does not appear to be the case here.  If the Court were to rethink its ruling, one might expect an appeal from Hunt’s attorneys.  This will be a ruling that the plaintiffs’ attorneys in the Zuffa Antitrust Case will be looking at with interest as well as the lawyers in Leslie Smith’s NLRB case.  The reveal of contractual information as to how MMA fighters are paid is a secretive process and unlike wage scales in other sports, payouts in the UFC are held close to the vest.  MMA Payout will keep you posted.

Court denies UFC’s request to seal Promotional Agreement in Mark Hunt lawsuit

July 23, 2018

The Court in the Mark Hunt lawsuit against Zuffa, Dana White and Brock Lesnar denied a motion for leave to file exhibits under seal.  The defendants’ motion (specifically White and the UFC) sought to seal and redact portions of the 2016 Promotional Agreement with the UFC Heavyweight.

The Court denied the request citing that the public has a right to inspect and copy judicial records.  It relied upon the presumption that the records are publicly accessible. The party seeking to seal “bears the burden of overcoming this strong presumption.”  The Court makes the distinction that since this is a dispositive motion (a motion that may bring an end to the lawsuit), the party seeking to seal the record “must articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure…”

The UFC and Dana White attached Hunt’s Bout Agreement for UFC 200 and other Bout Agreements from previous fights on as exhibits to its Motion to Dismiss Hunt’s First Amended Complaint.  Denial of its Motion to Seal these documents presumptively means that they would be available for public viewing.

The U.S. Magistrate denied the order and barring an immediate appeal will unseal the documents filed in their motions to dismiss in 14 days.

Order on Motion to Seal by JASONCRUZ206 on Scribd

Payout Perspective:

This is a good ruling for those interested in the case and public access to court records.  Notably, the UFC is fighting to maintain records sealed in its Antitrust lawsuit filed by former fighters.  In that case, they argue that there is trade secrets/financial information that is confidential.  The Court should apply the standard here which requires a burden of overcoming the presumption is publicly accessible.  For the Hunt case, it will be an interesting look (not since the Eddie Alvarez lawsuit) into the terms of a current UFC bout agreement.

Hunt allowed to include removal from UFC Fight Night 121 in his lawsuit against UFC

February 8, 2018

The court in the Mark Hunt-UFC/Dana White/Brock Lesnar lawsuit has granted Hunt the opportunity to Supplement his lawsuit to include facts about his removal from UFC Fight Night 121.

   Order on Supplemental Complaint by JASONCRUZ206 on Scribd

In finding for Hunt, the court stated that Defendants’ argument in precluding the filing a supplemental complaint was that the allegations were false.  Secondly, they argue that the accusations are distinctly different from the lawsuit.  The Court denied both arguments.

Payout Perspective:

As we stated, this was the likely result as the Court would be willing to include the additional information in order to properly litigate the entire case rather than piecemeal.  The factual claims serve as to bolster Hunt’s causes of action.  It also forces Defendants to address the allegations as it tries to dismiss the lawsuit.

Scheduling Order issued in Hunt lawsuit, no trial date set

January 10, 2018

The parties in the Mark Hunt lawsuit have agreed to a scheduling order.  The scheduling order followed a required meeting of counsel via teleconference last Wednesday.

There is no trial date as of yet.  The order states that Zuffa and White are scheduled to begin trial in another case starting on April 16, 2018 with an estimated time of six months.  Also, due to the fact that Hunt lives in Australia, the parties have requested a special scheduling review.

Notably, the parties will conduct fact discovery in two phases.  The first phase will be written discovery on “all non-RICO claims.”  The second phase will be “non-written discovery and RICO claims, subject to the pending motions to dismiss, the outcome of which will likely necessitate the parties revisiting the scope and determining of discovery and corresponding deadlines.”

Scheduling Order by JASONCRUZ206 on Scribd

Payout Perspective:

The initial disclosure of witnesses will occur on January 31st.  The cutoff for discovery will not occur unitl October 1st.  The deadline for summary judgments (aka dispositive motions) is October 31, 2018.  So, assuming that the defendants Motion to Dismiss Hunt’s First Amended Complaint is denied, we should be looking for a trial sometime in late 2018, early 2019.

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