Plaintiffs in UFC Antitrust Lawsuit oppose sealing of documents

June 19, 2018

Plaintiffs in the UFC Antitrust Lawsuit are opposing a Motion to Seal brought by Zuffa to seal documents in Plaintiffs’ Motion to Seal Plaintiffs’ Reply in Support of Motion to Certify Class and Related Materials.  The opposition is the first in this litigation which has gone without any challenges to the redaction and/or sealing of documents.

Plaintiffs’ Opposition to Motion to Seal by JASONCRUZ206 on Scribd


Plaintiffs cite 4 points why the Court should deny Zuffa’s Motion to Seal:

  • The materials Zuffa seeks to seal are not trade secrets, but rather largely, outdated aggregate data, and Zuffa would suffer no competitive harm if they were disclosed;
  • Zuffa’s justifications for sealing do not satisfy the applicable “compelling reasons” standard;
  • The right of the public, the press, the named Plaintiffs, and Class members to access judicial materials is especially robust….; and
  • Zuffa is attempting to gain an advantage by overdesignating materials that support Plaintiffs’ claims and their motion for class certification, when Zuffa has selectively revealed similar information that served Zuffa’s purposes.

Plaintiffs argue that Zuffa’s claim that redacting certain section of its documents “could permit..competitors to gain unfair insights into Zuffa’s strategic business practices and gain an unearned advantage in competition” is a red herring.  It contends that it is sealing information to control the flow of information to the public, the press, the named Plaintiffs’ and the class members, and prevent Plaintiffs from telling their side of the story to the public.  It’s not that its protecting its trade secrets argues plaintiffs it is concerned about the public learning about its misconduct.

Focusing on the issue of unsealing documents for the media, John Nash of Bloody Elbow sent correspondence to the Judge Richard Boulware requesting access to certain documents including portions of the expert reports that were redacted. Nash pointed out inconsistencies with what was being redacted, withheld for public consumption with what was allegedly trade secrets.  Zuffa’s counsel responded to the letter indicating that the likes of Nash, Paul Gift and yours truly had ample information to pontificate on the subject.  It claimed that the information sealed was trade secrets and precluded from public consumption.  Zuffa argued that the right to access of pleadings was not absolute.  Nash responded with a detailed letter outlining the reasons why certain sections should not be redacted.  The letter also cites a federal court judge order from last month in which it sanctioned attorneys for frivolous motions to seal.  The pertinent section that is applicable is as follows with emphasis being ours:

At the hearing on the order to show cause, there was discussion of the fact that attorneys – particularly attorneys for corporate clients – are under great pressure to file motions to seal information that their clients would prefer to keep secret, even if there is no legitimate basis to keep the information secret. This is no doubt a significant issue for corporate lawyers, but the answer is not to file frivolous sealing requests. The answer is to firmly explain to their clients that litigation is a public process, and that the public has the right to know what the litigation is about, subject only to very limited exceptions. Mere embarrassment to a corporation is not one of those exceptions

In that case, the Judge fined the law firm filing frivolous sealing requests $500 per lawyer involved (which was 5) for a total of $2,500.

2018-06-10 S Grigsby Ltr to Judge Boulware Re J Nash Email by JASONCRUZ206 on Scribd

Response to Ms Grisby Jun 10 2018 Letter by JASONCRUZ206 on Scribd

Payout Perspective:

According the plaintiffs’ motion, a party seeking to seal a judicial record bears the burden of overcoming “a strong presumption in favor of access” by meeting the “compelling reasons” standard.  While the disclosure of information might prove embarrassing, incriminating or put the party in a false light, it is not a reason to seal information from a public court filing.  From a media perspective, it is hard to be accurate if the information is not provided.  One need only look to Zuffa’s attorney proclaiming an industry insider report that UFC 225’s buy rate was less than 150,000 was a “material misrepresentation” and off by six figures.  But, the attorney did not correct the information with accurate data.  A later report, noted that the buy rate including streaming and traditional PPV buys was 250,000.

The federal court order from last month is persuasive considering the overarching theory is that sealing documents has “very limited exceptions.”  The burden is on Zuffa to show why they are allowed to redact certain sections.  Previously in this lawsuit, these types of motions were not opposed and therefore the court did not really examine the information sealed.  Now, it appears that the Court might review the redacted sections.

The motion creates more work for Zuffa and plaintiffs with another motion to handle.  However, this is not a frivolous motion from the perspective of the media.  There are a lot of instances where things like this go by without being questioned.  Here, at least there will be some examination as to the veracity of what can and cannot be sealed.

Plaintiffs file Reply Brief supporting class certification in Antitrust lawsuit

May 31, 2018

The Plaintiffs in the UFC Antitrust lawsuit have filed its Reply Brief in support of its motion for class certification.

Plaintiffs Reply ISO of Class Certification by JASONCRUZ206 on Scribd

Zuffa Oppo to Class Cert by JASONCRUZ206 on Scribd

The four factors for class action certification are the number of potential members of a class, the commonality of questions of law or fact, the typicality of the claims or defenses of the class and the adequacy of the representative classes.  In its, opposition brief, Zuffa took aim at the four factors in concluding that Plaintiffs have not served

Plaintiffs stress “four fundamental errors” in its reply brief.

First, Zuffa errs that there can be no legal challenge to its business practices.  Plaintiffs cite illegal conduct that allowed Zuffa an advantage in its industry.  The Plaintiffs rebut Zuffa’s assertion that wage level is the only way to evaluate compensation citing that its use is a way to masks Zuffa’s abuse of monopsony power.  Again, this is the overarching argument between wage level which measures compensation in dollars versus wage share which measures compensation as a percentage of revenues.

Second, Plaintiffs argue that Zuffa misunderstands the antitrust violation which is a scheme to acquire and maintain monopsony power.

Third, plaintiffs claim that Zuffa failed to respond to the ways in which they show common impact.  Plaintiffs claim that common evidence was capable of proving widespread harm across a class, courts usually certify classes in antitrust cases.

Finally, Plaintiffs’ claims are typical of the class as it refutes Zuffa’s claim that challenges the typical damages may have left some proposed class members uninjured.  In refuting this argument, Plaintiffs argues that there is no law which must show all class members were harmed to satisfy the typicality requirement.

Zuffa also argues that since Plaintiffs are ex-fighters, they will not protect the interests of the current Fighters.  However, Plaintiffs cite case law stating that former employees may represent present employees.  Plaintiffs also cite the “transitory” nature of a fighters’ career.  Since they are independent contractors, it would be easy for Zuffa to insulate itself from a class action lawsuit as the promotion could release a fighter it believed would be part of a lawsuit.  Moreover, Plaintiffs argue that former fighters have less of a concern with retribution from the organization versus a current fighter bringing a lawsuit.

Payout Perspective:

As in most Reply Briefs, Plaintiffs support its initial motion while rebutting opposition from Zuffa’s response to the motion.  As will be one of the bigger issues in the “battle of the experts” is the calculation of damages through wage share or wage level.  Plaintiffs endorse the wage share model to determine whether fighter wages were suppressed through illegal conduct versus Zuffa’s claim that wage level should be used to evaluate whether there were any factors to show such illegal conduct on the part of Zuffa.  Of course, each version supported by the party helps their respective viewpoint.  The Reply addresses Dr. Singer’s expert report and his theory of Zuffa’s Foreclosure Share – the proportion of fighters subject to its exclusive contracts – affects its Wage Share.  Dr. Singer’s theory of liability model suggests that Zuffa’s Exclusive Contracts are part of an unlawful scheme which correlates with underpayment of fighters due to illegal foreclosure (i.e., the measure of damages).  MMA Payout will keep you updated.

Catching up with Zuffa’s Reply Briefing in Antitrust Lawsuit

May 30, 2018

As we prepare for another filing in the UFC Antitrust lawsuit this week, MMA Payout takes a look at the briefing in supporting the motion to exclude plaintiffs’ experts.

Earlier this month, Zuffa filed briefs in support of its Motion to Exclude the testimony of Dr. Andrew Zimbalist.  They seek to exclude the testimony pursuant to Federal Rule of Evidence 702 and the Daubert case which allows the Court to determine whether certain expert testimony may be used at trial prior to trial.  The standard for admissibility is based on 5 factors which look to the scientific means of the method and whether they are generally accepted within the industry.  Zuffa argues that Dr. Zimbalist’s expert testimony as indicated in his submitted report conducted “no analysis and used no standards in his yardstick method.”

Zuffa Reply ISO Motion to Exclude Zimbalist by JASONCRUZ206 on Scribd

Zuffa argues that there are standards for the ‘yardstick method’ which Dr. Zimbalist uses, but he chose not to do so.   Specifically, Zuffa argues that Dr. Zimbalist did not conduct an empirical analysis of product markets, business models, revenue sources, or inputs.  According to Zuffa, Dr. Zimbalist did not consider any of the other factors that must be assessed using the yardstick method including “demand conditions or whether the comparators stand in the same relative position in their markets.”

In its analysis, the Dr. Zimbalist is measuring damages by wage share.  However, Zuffa argues that this measure is not accurate since it neglects to use individual salaries.  Zuffa argues, “[i]t is highly speculative for Dr. Zimbalist to assume without foundation that these hundreds of negotiations would add up to a similar wage share as the contractually define wage shares collectively bargained by the unions in the comparator sports.”

Zuffa goes on in its brief to argue that Dr. Zimbalist’s comparison to boxing is premised on faulty data as he uses Golden Boy to measure the entire boxing industry.  Zuffa argues that Dr. Zimbalist utilized data from another’s expert report in Golden Boy’s lawsuit against Al Haymon without independently verifying the data.

Finally, it argues that Dr. Zimbalist’s expert reports do not support Dr. Hal Singer’s expert reports and analysis and vice versa.

In supporting its motion to exclude Dr. Singer, Zuffa argues once again that wage share is not an acceptable practice for measuring damages.  Specifically, Zuffa takes issue with a regression analysis performed by Dr. Singer in his model.  Zuffa argues that the expert report finds anticompetitive effect which “directly contradicts” the fact that actual compensation has increased.  Second, the regression analysis performed by Dr. Singer shows that there is no anticompetitive effect and there is no relationship between the conduct and actual wages.

Zuffa Reply ISO Motion to Exclude Dr. Singer by JASONCRUZ206 on Scribd

The reply briefing to plaintiffs’ opposition to exclude their retained experts’ reports are based on the difference regarding wage share and actual wages.  The assertion by Zuffa is that “an analysis of wage share does not provide a reliable means of inferring anticompetitive effect, antitrust injury or damages because it cannot distinguish between a decrease in wage share as a result of the challenged conduct and a decrease as a result of legal and procompetitive business developments that increase overall revenues.”  Zuffa argues that there is no case law or economic literature supporting a regression analysis with wage share as a dependent variable inferring anticompetitive conduct.  Defendant also points out that the method would assume that a mandatory share of revenue is allocated for compensation. Yet, Zuffa compensates athletes based on “its perception of the athlete’s value and market forces, leading to a wide range of athlete compensation.”

Zuffa also argues that Dr. Singer’s reports do not show causality between his findings an the alleged anticompetitive conduct.  Zuffa claims that Dr. Singer’s regression analysis does not answer the key question of what proportion of increased revenues are attributable to athletes.  Rather, Dr. Singer relies upon economic theory which cannot replace Daubert standards according to Zuffa.

Parties in Antitrust Lawsuit agree to supplement expert reports

May 7, 2018

The parties in the UFC Antitrust Lawsuit have filed a Joint Motion to Supplement Expert Reports.  The motion, if granted by the Court, will allow the parties to supplement their expert reports as it relates to Dr. Hal Singer and Professor Robert Topel.

The motion states, that due to “the complex issues involved in this antitrust case, the substantial damages at issue, and the significant amount of documentary, deposition, and other party and non-party evidence that has been produced and elicited in this matter, the Parties seek to ensure, within the bounds of efficiency, fairness and practicality, that the expert report fairly and fully contains the parties’ experts’ respective opinions in this case.”

Zuffa’s expert, Professor Robert Topel filed a “Sur-Rebuttal” Expert Report dated February 12, 2018 which has not been filed.  A “sur” reply is an additional reply to another party’s motion.  It is not a scheduled filing but the Court and is usually filed to rebut previously brought up by the other party.  Usually they are not well-received by a Court since they are unplanned, additional filings that the Court must consider.

Zuffa contends the sur-rebuttal report was prepared because issues were raised for the first time in Dr. Singer’s rebuttal report it believed it did not have a chance to respond to in its original rebuttal.

The motion agrees to several concessions with Topel’s Declaration to Zuffa’s class certification opposition brief.  Plaintiffs have agreed that they will not object to the inclusion of the Topel Declaration and in return Zuffa agrees not to object to Plaintiffs’ inclusion with their upcoming class certification reply brief of a new declaration from Dr. Singer.

Joint Motion to Supplement Expert Reports by JASONCRUZ206 on Scribd

Payout Perspective:

The joint motion is a way for the parties to hash out some evidentiary issues that each party has with their experts.  Also, a workaround the deadlines imposed by the Courts.  So long as the parties agree to the exchange of information are admissible as if the deadlines were met, the Court likely has no issue.  Concessions were made with respect to potential inclusion of evidence at trial and the agreement that there will not be an objection to it.  We will see more from Dr. Singer and Topel soon with respect to the Class Certification filing upcoming and their respective expert reports as those may be key.  Of course, there are motions to exclude testimony of each as well that are pending.

Zuffa files opposition to Plaintiffs’ Motion for Class Certification in Antitrust Lawsuit

April 16, 2018

Earlier this month Zuffa filed its opposition to the Plaintiffs’ motion for class certification in the Antitrust lawsuit filed in Nevada.  Back from Spring Break, MMA Payout takes a look at the motion.

Zuffa Oppo to Class Cert by JASONCRUZ206 on Scribd

Under Federal Rule of Civil Procedure 23 are four elements needed to show class action status is viable: Numerosity, Commonality, Typicality, and Adequacy.  Zuffa argues against each element for class action status.

The opposition brief goes in depth on the reasons why the 6 named Plaintiffs cannot represent the two broad classes contracted by Zuffa.  They argue that the claims are not the kind that should be decided as a class.  Rather, one of their main arguments is that the factual claims set forth by each plaintiff differ and there is no “typicality” of defenses or “commonality” of evidence.  Zuffa argues that the expert reports and opinions submitted by Plaintiffs are insufficient to buttress the argument that the claims are those that can be tried through class action certification.

The two classes that Plaintiffs seek to represent are the “Bout Class,” the class of athletes who competed in UFC bouts during the class period and the “Identity Class,” those athletes alleged to have their identities “expropriated” by Zuffa.  Nathan Quarry is the only named plaintiff to be a part of the Identity class according to Zuffa.

Zuffa outlines reasons why the Bout Class is defective:

  1. Plaintiffs cannot adequately represent the class because none of them currently compete in UFC promoted bouts, and their claims are not typical of others in the putative class, such as the current athletes they seek to represent.
  2. Plaintiffs cannot establish the requisite elements of an antitrust violation with common evidence. Essentially, Zuffa argues that the class of purported affected individuals is vast and a finding that the entire class was “coerced” into exclusive contracts is unlikely.  Zuffa also cites that the existent of local markets for live MMA entertainment means that individual issues predominate for all of those markets.
  3. Zuffa does not have a pay structure or follow a policy of “internal equity” according to the legal filing. They argue that the regression theory posited by Plaintiffs “cannot distinguish whether common or individual factors account for the variations in athlete compensation.”
  4. Zuffa also claims that the putative class is “unmanageable” due to the inability for Plaintiffs to identify which athletes would still be competing for Zuffa or any other MMA Promoter

Zuffa argues that the Plaintiffs’ cases are not typical of one another.  The “test of typicality” looks to “whether other class members have been injured by the same course of conduct.” The requirement evaluates whether defendant’s defenses would be similar for the Putative class representative.  Zuffa argues that the defenses vary based upon the athlete.  It identifies having varied defenses when dealing with Plaintiff Nathan Quarry, Brandon Vera, Cung Le, Javier Vazquez, Jon Fitch and Kyle Kingsbury.

The purpose of “adequacy” is to “uncover conflicts of interest between named parties and the classes they seek to represent.”  Here, Zuffa argues that the Plaintiffs are retired or compete elsewhere.  None of the Plaintiffs currently fight in the UFC.  Thus, they would not be representative of the current class of UFC fighters as Zuffa argues that they would be more interested in money damages rather than injunctive relief.

In its argument rebutting the commonality element for class action status which allows certification if questions of law or fact common to class member predominate, Zuffa argues that Plaintiffs’ alleged theory of liability is incapable of proving liability with common evidence.  Here, Zuffa argues that the factual issues for each case differs and the commonality requirement would not apply here.  Zuffa goes on to argue with respect to the allegation that athletes were “coerced” into UFC contracts, Plaintiffs’ claims require “mini-trials for each plaintiff and class member on the issue of whether they voluntarily entered into their contracts.” Additionally, they claim that individualized evidence will be required to determine injury and show an antitrust violation.

The opposition motion includes declarations from Stephan Bonnar, Kenny Florian and Jim Miller which reflect the tone that the fighters made a choice to fight in the UFC instead of being forced to do so because of the economic market conditions.

Here are some other observations:

-Zuffa cites the U.S. Supreme Court case of Comcast Corp., et al. v. Behrend, et al. which found that the plaintiffs in that case failed to establish a sufficient connection between their alleged theory of liability and their claimed damages.  Highlighted in the opinion was the need to conduct a “rigorous analysis” to determine whether the standard has been met.  Similarly, Zuffa argues that the Plaintiffs have a similar problem with their case.

-According to an excerpt from Michael Mersch’s deposition, in order to re-sign Zuffa athletes before their contracts expire, the company offers higher guaranteed compensation for their next bout as an incentive to sign a new agreement.  Zuffa argues that the individual athlete makes the decision as to whether to sign or not and their reasons differ on the decision.

-Zuffa notes that there is “no testimony that promoters could not obtain MMA athletes during the class period.”

-The opposition argues that Plaintiffs have switched course in the argument of a combination of monopoly and monopsony allegations but a “multi-faceted “Scheme” of only monopsony-related claims.”

-Zuffa argues that Plaintiffs’ attempt to merely offer proof of harm that is widespread across the class is not sufficient as they must need to prove class wide harm.  They also state that the antitrust claims asserted here are not routine for class action lawsuits.

-Zuffa notes, “[A]lthough Plaintiffs suggest class certification in antitrust cases is routine, no court has

granted class certification in a Sherman Act Section 2 monopsonization case involving allegations

based on unilateral conduct.”

-With respect to their motion to exclude the opinions of Plaintiffs’ experts Drs. Singer and Zimbalist under Daubert, Zuffa argues that regardless of the outcome from the Court, it may still conclude that class certification should be denied.

Payout Perspective:

 The obvious objective of the opposition is to show that Plaintiffs’ claims cannot be tried as a whole and must be tried individually.  If this were to occur, the Plaintiffs would be in a bind logistically and economically as they would be left to prosecute cases for each of the athletes involved in the lawsuit.  Additionally, this would lessen their leverage of settling the cases as well as foreclosing a potential for larger award if they prevail.  Zuffa also stresses the Comcast case in its argument that under a “rigorous analysis” that Plaintiffs liability theory and damages are not tied.

Show Money Episode 21 talks antitrust lawsuit, Project Spearhead and more

March 8, 2018

In this episode of Show Money we talk antitrust lawsuit, project spearhead and more with Paul Gift and John Nash of Bloody Elbow.

Plaintiffs’ expert in UFC Antitrust lawsuit takes turn picking apart Zuffa’s economic expert

February 26, 2018

Dr. Andrew Zimbalist had the opportunity to offer a rebuttal report in response to a UFC’s economist undressing of his opinion on the damages in the plaintiffs’ case in the UFC antitrust lawsuit.

In the report he goes after Zuffa’s economic expert, Dr. Roger Blair as he claims that his analysis “provides no insight into Zuffa’s market power or monopsony power.”  As is the case with most rebuttal reports, Dr. Zimbalist picks apart the analysis from Dr. Blair.  He notes that while Dr. Blair pointed out that he did not originally define a market in his original expert report, it was not in his assignment to do so.  Thus, the critique “makes little sense.”

Here, Dr. Zimbalist has the opportunity to critique Dr. Blair’s definition of the market in stating that the basis of revenue generated, not the number of bouts or events.

Thus, the belief is that Dr. Blair is being too broad in his analysis of the market whereas Dr. Zimbalist is being more centralized.

Dr. Zimbalist also defends his use of the “yardstick” method in his original report:

The yardstick method I use to calculate damages, namely, selecting a group of comparators with as much similarity as possible with the target industry or company is one that is used commonly in real estate appraisals. It is also one of the three basic methodologies (comparable sales) employed to value companies: asset based valuation; discounted cash flow valuation; and, comparable sales valuation. More importantly, as Dr. Blair admits, the yardstick approach is a “recognized” approach to calculating damages. However, he claims that my yardstick approach is not acceptable because my comparators are not sufficiently similar to UFC, save the different organizations of their labor markets.

He also defends his use of boxing data in his original report:

Moreover, I also use professional boxing as one of my yardsticks, which suffers from none of the defects Dr. Blair suggests infect my team sport comparators. Boxing is similar to MMA in virtually every respect other than the amount of monopsony power the promoters can
exercise over the athletes, and the absence or unenforceability of many of the challenged
contractual terms due to the Muhammad Ali Act. Boxing has similar total revenues to UFC and
is therefore of similar scale and scope. Boxing promoters have an identical business model to
MMA promoters, with identical sources of revenue such as gate, PPV receipts, licensing fees,
and merchandise. Boxing promoters also incur identical costs to MMA promoters, such as purses for athletes, advertising and promotional expenses, timekeepers, referees, judges, and medical personnel. They also incur some television production costs As in MMA, boxers do not
collectively bargain. Indeed, none of Zuffa’s experts points to any distinguishing characteristic
that would make boxing an inapt yardstick. The only criticism Zuffa’s experts raise is with my
calculation of fighters’ share of revenue in boxing. I address that criticism below.

He also picks apart Dr. Blair’s arguments that the UFC’s conduct is procompetitive citing the flawed comparisons with pro sports free agency.  In this case, he takes issue with the examples of the NFL’s Andrew Luck and Von Miller used by Dr. Blair:

However, the specific examples that Dr. Blair discusses illustrate the important
contextual difference between the relatively competitive market for NFL athlete services and the
current UFC-dominated market for top MMA fighters. Dr. Blair cites the contract negotiations for two NFL players, Andrew Luck and Von Miller.  Both players negotiated contracts with their respective teams without reaching unrestricted free agency Andrew Luck’s team, the Indianapolis Colts, signed Luck to a five-year contract extension prior to the final season on Luck’s rookie contract. The total value of Luck’s contract was $122.97 million with $87 million guaranteed. Von Miller’s team, the Denver Broncos, applied the Franchise Tag to Miller after his final season on his rookie contract and, before the season under the Franchise Tag began, the Broncos signed Miller to a five-year extension worth $114.1 million with $70 million guaranteed. As both Luck and Miller approached free agency, the availability of a competitive labor market allowed them to negotiate contractual terms which allowed them to capture something close to their marginal revenue product, and reflected substantial increases from their prior contracts. UFC fighters have no such prospects.

As noted by Dr. Zimbalist, the issue in the above negotiations rested on the amount of guaranteed money as opposed to the overall contract number.

Also an interesting specific comparison is Dr. Blair’s analogy between the UFC’s “champion’s clause” and the “NFL’s franchise player rule.”  While the NFL’s rule is advantageous for the player that is “tagged,” the champion’s clause does not present the same reward.  Some of the portions of the report are redacted as to the champion’s clause discussion but the arguments remains true that

The report also addresses Zuffa’s other experts which we will get to in another post.

Payout Perspective:

The rebuttal is allowed of the plaintiff as a form of response to the defendant’s report.  Similar to the defendant’s report it is meant to poke holes at the opinion formulated by the opposing side.  Key to note in Dr. Zimbalist’s rebuttal to Dr. Blair’s critique is how he explains how free agency in other sports is different from that in the UFC as it relates to allege procompetitive benefits.  The negotiations differ since the NFL contracts are fought over the amount of guaranteed money in a contract versus the overall value of the contract.  This is due to the fact that many contracts of exorbitant amounts are never paid out that amount, are renegotiated for lower terms or terminated prior to payment.

In UFC Antitrust lawsuit, plaintiffs’ economic expert report compares UFC to pro leagues

February 20, 2018

MMA Payout takes a look at the 158-page expert report provided by plaintiffs’ economic expert Andrew Zimbalist.  Its Dr. Zimbalist’s opinion that Zuffa is attempting to exclude from the case at hand as they take issue with his calculation of damages.

As with most of the filings containing sensitive information about Zuffa contract and financial information, there are parts of the report that include heavy redactions.

In addition to a review of the NBA, NHL, NFL and MLB, Dr. Zimbalist reviews the history of boxing’s payment scale.  He identifies “at least five different boxing promoters who are prominent enough to promote major championship fights each year, and probably more than ten.”

In estimating damages, Dr. Zimbalist explained his methodology:

“For each sport that I use as a benchmark, I apply the athlete compensation share of revenue to the reported Zuffa bout revenues to arrive at what Zuffa’s fighters would have been paid if they received the same share as the athletes in these other sports where competitive labor markets prevail.  I then take the mean of these but-for compensation levels from the different sports and compare it to the total event-related fighter compensation paid out of Zuffa’s athletes.  The difference is the basis for my estimate of the total amount members of the bout class were underpaid due to the challenged conduct.”

In the next paragraph Dr. Zimbalist gives his explanation for using player share rather than the actual pay levels.  He believes that it would control the state of the industry and differences between the popularity and thus demand for each benchmark as compared to MMA.

Dr. Zimbalist includes Golden Boy Boxing Revenues and Expenses in his report as a comparison to MMA.  The information was disclosed in the Al Haymon-Golden Boy antitrust lawsuit.

Notably, the Fighter share of revenue was over 55% of the total revenue in 2014, 2015, and 2016.

He also provides a table reflecting share of revenue in the NFL and MLB.

Dr. Zimbalist includes a quote Zuffa LLC’s then CEO and co-owner Lorenzo Fertitta gave to ESPN’s Outside the Lines in a story on fighter pay in 2012.  Fertitta stated fighter pay was “not far off what the other sports leagues pay as a percentage of revenue.”  When informed that the players share in the big 4 leagues was around 50 percent, Fertitta agreed that the UFC’s fighter pay was comparable.  Dr. Zimbalist notes that this was an untruth.

He then gives his estimate and damages calculations.

Below, I calculate annual damages to the bout class by comparing UFC athlete share of event-based revenue to the average athlete share of revenue in the selected benchmarks discussed above: the NFL, MLB, NBA, NHL, and boxing. For those leagues whose competitive seasons nm between two calendar years, the year identified is the fiscal year. Hence, the 2014-15 NBA season corresponds to fiscal year 2015 and is represented as 2015. My source for Zuffa’s revenues and fighter compensation are Zuffa’s annual financial statements.

 

We don’t exactly know his damage estimate since it is redacted from the public report.  Dr. Zimbalist did base UFC fighter pay and revenues based on Zuffa annual financial statements (likely) provided in discovery.

Payout Perspective:

While Dr. Zimbalist believes his calculations are conservative, it’s clear that Zuffa thinks otherwise.  The “yardstick method” is at issue here as Dr. Zimbalist comes to the conclusion that the UFC used anticompetitive conduct which would lead to anticompetitive effects for a firm with monopoly or monopsony power.  He also believes that the rationale given for the conduct are not procompetitive are invalid, do not theoretically apply to MMA and there less restrictive conduct in its labor market.  Utilizing the “Big 4” sports and boxing to come up with a comparable estimation for damages is contested by Zuffa here as they make the assertion that the 4 sports leagues have unions which facilitate athlete compensation.  But, UFC fighters do not.  The data used from boxing is based on 2.5 years from Golden Boy Boxing so the argument there is that the analysis is incomplete and from a short span of time.

MMA Payout will have more on this and Dr. Zimbalist’s rebuttal report in the near future.

UFC attempts to exclude expert, Plaintiffs file for class certification in latest antitrust lawsuit filings

February 18, 2018

New filings in the UFC antitrust case filed Friday included plaintiffs’ request for class certification and Zuffa seeking to exclude the testimony of plaintiffs’ expert Andrew Zimbalist.  As is customary in litigation, a glut of pages of legal filings were made on a Friday, just in time for the three day President’s Day weekend for lawyers for the UFC and plaintiffs to sift through.

Both filings were anticipated.  Plaintiffs’ have been angling toward certification.  Zuffa’s motion to exclude plaintiffs’ expert is a strategic motion to discard or curb the testimony of Zimbalist based on his reports.

Zuffa’s Motion to Exclude plaintiffs’ expert economist Andrew Zimbalist is based on his expert reports and deposition testimony.  The basis for the request to exclude Dr. Zimbalist is that his method of coming up with his conclusion for plaintiffs’ damages is not premised upon a general accepted method of practice.  Zuffa categorizes Dr. Zimbalist’s reports and testimony as “junk science” that does not meet the Federal Rules of Evidence reliability standards. The “Daubert test” which is premised upon a court case, enables the court to perform a “gatekeeping” function to ensure that expert testimony admitted “both rests on a reliable foundation and is relevant to the task at hand.”

Zuffa argues that Dr. Zimbalist’s claim that he utilizes the “yardstick method” when assessing damages is incorrect.  “Instead, he compared Zuffa to other firms chosen based on his selecting comparison firms that had as much in common as possible.”  Zuffa takes issue with Dr. Zimbalist using a “damages method” with no standards.  The claim is that Zimbalist chose to compare UFC fighter pay with those of the NBA, NFL, NHL, MLB based on his previous work within those sports.  Zuffa describes Dr. Zimbalist’s testimony as one which lack standards without following the generally accepted “yardstick method” of assessing damages in comparing a market or firm similar to the plaintiffs’ situation for the impact of antitrust violations.  The issue taken with Dr. Zimbalist’s method and the accepted “yardstick method” is the comparability of markets.  Zuffa argues that Dr. Zimbalist did not make a comparison of the MMA market with a comparable other market.  Dr. Zimbalist argues that he used a model that had “as much in common as possible.”  But, as outlined by its motion, this does not follow the “yardstick method.”  Zuffa also claims that Dr. Zimbalist created a “selection bias” as he essentially used comparators he felt comfortable with to get to the desired result as opposed to determining whether the selection were the most appropriate.

If the Court agrees with Zuffa, this would deal a big blow to the plaintiffs’ case as one of its main experts would not be able to testify at trial and any evidence produced would not be used to prove damages as plaintiffs had planned.

Plaintiffs’ motion for class certification is a perfunctory motion necessary to attain class action status.  The requirements for the court to grant class status is based on four primary elements (which most attorneys know for studying the bar exam):  1) numerosity, 2) commonality, 3) typicality, and 4) adequacy.

The first element is the number of potential class member affected by the issues claimed in the lawsuit.  The second element is based on the common questions of law or fact in the lawsuit.  Third, the claims or defendants of the class representatives are typical of those of the class.  Finally, the class representatives (i.e., the lawyers involved in the current lawsuit) will adequately protect the interests of the class.

The plaintiffs move for an order certifying a Bout Class and an Identity Class.  The Bout Class encompasses all persons who competed in one or more pro UFC-promoted MMA bouts in the US between December 16, 2010 and June 30, 2017.  The Identity Class is based on each and every UFC Fighter whose Identity was expropriated or exploited by the UFC from December 16, 2010 and June 30, 2017.

In its motion, plaintiffs reiterate the “Scheme” outlined in their lawsuit.  The Scheme used by Zuffa in which it established and maintain market dominance in which it allows payment of fighters less than it would be in a more competitive market.  The three categories of the Scheme include its “long-term exclusive” “Contracts,” the “Coercion” of fighters to re-sign contracts, making them perpetual and the “Acquisitions” of other MMA promotions.

The motion for class certification is heavily-redacted especially when the motion relates to UFC contracts.  Looking at the class certification elements, its clear that there are many UFC fighters that may be affected by this lawsuit.  The overall argument for class certification is that too many people have been affected by the subject cause of actions that separate lawsuits would not make sense.  Secondly, the plaintiffs argue that there are common issues of law involved including:  1) whether Zuffa violated antitrust laws; 2) whether Zuffa possessed market power; 3) whether Zuffa’s Scheme had anti-competitive effects; 4) what injunctive relief is appropriate; and 5) the aggregate amount of damages caused by Zuffa’s unlawful Scheme.

Payout Perspective:

Both of these motions were likely to happen and we will see how the Court decides each.  With respect to the Motion to Exclude, the arguments asserted by Zuffa are valid but it’s the opposing party’s job to poke holes in the expert’s testimony.  The best-case scenario for Zuffa is that the testimony is limited in some way on the damages estimate.  It would be highly unlikely that the Court would exclude a witness in their entirety.  Dr. Zimbalist is an experienced expert and is used to attacks on his report and more importantly, knows how to craft a report.  Additionally, the reports are done in concert with plaintiffs’ attorneys so, overall, plaintiffs agree to what is being opined in the report.

More importantly for plaintiffs, class certification is a big deal for the plaintiffs and plaintiffs’ lawyers.  If the Court certifies class status for this lawsuit, then you will see more fighters joining the lawsuit and plaintiffs’ attorneys could collect a windfall if they are eventually successful at the end of the case either via settlement or verdict.

MMA Payout will keep you posted.

Top Rank and Plaintiffs in Antitrust Lawsuit Resolve Discovery Dispute

October 2, 2017

Top Rank and the Plaintiffs in the UFC Antitrust Lawsuit have resolved their discovery dispute regarding a motion to compel production of documents and for the attendance of the deposition of Bob Arum.

A notice of resolution was filed late last week.  The agreement between the parties avoids a motion to compel brought by Plaintiffs in the Zuffa Antitrust lawsuit seeking financial information and the deposition of company head Bob Arum.

Resolution Re Top Rank Motion to Compel by JASONCRUZ206 on Scribd

Originally, the motion was to be heard in early September but was continued until later in the month, but the parties came to an agreement.

Top Rank argued that a subpoena for the production of documents from the company was not relevant to the Zuffa lawsuit.  It also argued that the Plaintiffs failed to show a “substantial need” for Top Rank’s information. It also stated that the Plaintiffs’ document request were overly burdensome.

Top Rank Oppo to Motion to Compel by JASONCRUZ206 on Scribd

Plaintiffs argued that they were entitled to the discovery as it is relevant to their lawsuit against Zuffa, there is a substantial need for the documents and believe the discovery is not overly burdensome.

Reply to Opposition to Top Rank MTC by JASONCRUZ206 on Scribd

Top Rank noted in its opposition that it “cannot have it both ways.”  It argued that in its lawsuit it claimed that the “relevant market” was limited to the sport of MMA and noted that it was different from boxing.  Yet, it was requesting “ten years’ worth of revenue, profit, loss and payment information.”  Yet, Top Rank claimed that However the Plaintiffs lawsuit against them, claimed that it had differentiated itself from pro boxing and thus its financial information was not relevant to the instant lawsuit.

Top Rank argues that the document requests are intrusive and it is a way for Plaintiffs’ experts to “compare financial data from Top Rank’s promotion of boxing events to Zuffa’s promotion of MMA events and create “benchmark percentages of revenues.”  Moreover, it claims that Plaintiffs do not explain why they are unable to obtain this information from other sources.  Top Rank’s opposition brief claims it has told Plaintiffs where it might obtain public data about the company.

Top Rank lists some of the requests in its brief:

REQUEST NO. 1: Your Company’s Income Statements, including event-level profit and loss statements for the Relevant Time Period [defined to be from January 1, 2005 to present], including without limitation All Documents, including depositions, declarations, affidavits, or other statements under oath, You produced in any lawsuits or arbitrations, or to any governing athletic commission or sanctioning body, relating to TOP RANK’s accounting of its revenues, expenses, and profits.

• REQUEST NO. 2: Data in as granular form as it is maintained (itemized ledger entries, if they exist) sufficient to show all bout-related revenues and expenses (including for championship bouts, bouts where victory leads to championship, and all other Professional Boxing Events), payments made to individual Professional Boxers (including purses, bonuses, pay-per view, and any other event and non-event related payments), and non-bout related revenues and expenses.

• REQUEST NO. 3: To the extent not included in Your response to Request Nos. 1 and 2 above, documents sufficient to substantiate Bob Arum’s statement that TOP RANK pays 80% of event revenue to the Professional Boxers who participate in bouts promoted by TOP RANK….

• REQUEST NO. 4: A Representative Sample of All Agreements between TOP RANK and any Boxers, relating to participation in a Professional Boxing Fight or Professional Boxing Event, and any Documents and Communications relating to the negotiation, termination, cancellation or transfer thereof. Responsive Documents include, without limitation, executed Agreements, draft Agreements, side letters, all negotiations between TOP RANK and any Boxer, including any Professional Boxer,
or their agents, managers, promoters, or other representatives (regardless of whether such negotiations resulted in an executed Agreement), copies of any form agreements; and all Documents relating to the effects any such actual or potential Agreements between TOP RANK and any Athlete, including any professional Boxer, had on TOP RANK’s revenues, valuation, or ability to operate profitably as a Boxing Promoter.

Zuffa Plaintiffs claim that the information is vital for their case and that the UFC denied the differences between boxing and MMA in its answer to the lawsuit with the inference that they were interchangeable.  Notably, in its Reply brief it claimed that the business of promoting fights is the same for all combat sports.

Payout Perspective:

Plaintiffs Reply Brief includes quotes from Lou DiBella and Dana White’s deposition but most of the citations are redacted.  The order which spells out what Top Rank and the Plaintiffs had agreed upon is heavily redacted so we specifically do not know what the parties agreed to provide and whether or if the deposition of Bob Arum will take place.  It could be that Top Rank agreed to provide a portion of documents so long as Arum is not deposed and/or someone else within the company is deposed.

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