Deontay Wilder and Alexander Povetkin head to appeal

May 25, 2018

The Deontay Wilder-Alexander Povetkin legal drama will not end.  The parties have given notice that they are appeal the federal district court’s decision.

Letter From Wilder 05.25.18 Appeal by JASONCRUZ206 on Scribd

The Southern District Court of New York has had a trial and summary judgment motions in this contentious lawsuit over whether Povetkin’s failed drug test for Meldonium was a breach of the fight contract between the parties or whether Wilder not heading to Russia, where the fight took place, was a breach of the contract.

Thus far, a jury found that Povetkin ingested Meldonium post-January 1, 2016.  The Court affirmed the jury decision after a Motion for Reconsideration and/or New Trial  by Povetkin (and his promoters at World of Boxing)was denied.  Yet, in litigating the other causes of action, the court determined on Summary Judgment that Povetkin did not breach the Bout Agreement although a jury trial determined that Povetkin ingested Meldonium and concluded that a VADA test on April 27, 2016 showed Meldonium in his system.  The court deferred to the WBC’s discretion to rule on culpability for its anti-doping program.  As such, the court concluded that since the WBC believed that Povetkin did not violate the Bout Agreement.

From our previous post on this issue:

In this case, after issuing several conflicting and indecisive rulings, the WBC finally decided on November 7, 2017 that notwithstanding the jury’s verdict in this case, it would adhere to its earlier decision that it was not possible to determine whether Povetkin ingested Meldonium after January 1, 2016.  In other words, the WBC exercised its discretion to determine that Povetkin did not violate the CBP [Clean Boxing Program, the drug testing entered into by the boxers].”

In addition, the Court has released the escrow funds held up by Deontay Wilder after the fight did not go forward.  However, the Court did not grant WOB the $2.5 million in liquidated damages that was included in the escrow agreement which would have been triggered if it was found that there was a breach.  The Court noted that there was not a judgment filed against Wilder and that his representatives made the objection for disbursement in accordance with the agreement.  The Court did not find a breach of implied covenant of good faith and fair dealing. It also did not find Wilder guilty of breaching the Bout Agreement for not showing up in Russia for the fight as the Court opines that there was no evidence of his absence for the fight in Russia caused the cancellation.

The District Court ordered the release of the money held in escrow of over $7.1 million dollars.

A cause of action by Povetkin for defamation against Wilder was not litigated, but its likely that this will be determined after the appeal.

Payout Perspective:

It only makes sense that this case was going to be appealed.  Both sides are appealing ruling from the court.  Wilder is appealing the Summary Judgment ruling which essentially overturned a trial court decision that Povetkin took Meldonium.  Povetkin might be seeking to go after Wilder for breach of the Bout Agreement and obtain a $2.5 million liquidated damages award that is a part of the escrow agreement.  The legal drama shall continue and MMA Payout will follow.

Court issues final order in Wilder-Povetkin but appeal likely

May 10, 2018

The Deontay Wilder-Alexander Povetkin case may be heading to an appeal if you believe the parties.  The Court has issued a final judgment and order in the case and indicated that money held in escrow be sent to World of Boxing.

Order May 10th by JASONCRUZ206 on Scribd

Final Judgment by JASONCRUZ206 on Scribd

The legal saga that has seemingly dragged on for years looks to be heading to the Second Circuit Court of Appeals.  With the exception of Povetkin’s legal cause of action for Defamation against In a letter from Povetkin/World of Boxing’s attorney’s, they advise the Court that Wilder intends to appeal the Court’s summary judgment ruling.  Povetkin/World of Boxing proposed to the Court that the remaining claim for Defamation is stayed until the resolution of the appeal.

The Court issued an order which ends the case (for now) and allows for World of Boxing to regain over $6 million held in escrow since April 2016.

Despite the ruling, the parties fought over whether the escrow funds could be disbursed or whether the Defamation claim must be litigated.  This contentious litigation will likely continue into the appeal.

Payout Perspective:

The parties of 30 days from the date of the Order to appeal the court ruling.  It looks like that Deontay Wilder’s legal team will do so and its hard not to blame them based on the ruling from the Court which appears to contradict a February 2017 trial that found Povetkin ingested Meldonium post-January 2016.  However, the Court adhered to the WBC’s ruling that it could not determine when Povetkin ingested Meldonium.  MMA Payout will keep you posted.

Wilder and Povetkin/World of Boxing legal drama not over yet

May 2, 2018

The Deontay Wilder-Alexander Povetkin legal drama continues despite a Motion for Summary Judgment motion that seemingly answered all the questions left in the lawsuit.  All, except for when World of Boxing (“WOB”), Povetkin’s promoters might recoup the money that has remained in escrow since the start of this dispute.

We’ve covered the exhaustive background of this case since the lawsuit was filed.  For background from beginning, check this post and for the most recent filing you can look here.

On April 25th, the court entered an Order which relied on a U.S. Supreme Court case, Hall v. Hall, which determined whether consolidated cases under the Federal Rules of Civil Procedure are “immediately appealable upon an order disposing of that case.”  In this case, the World of Boxing has a claim for defamation which was stayed pending resolution of the rest of the claims.  The Court is concerned that the parties have not litigated this portion in the lawsuit assuming no final judgment would be filed.

Order dated 4.25.18 by JASONCRUZ206 on Scribd

However, the World of Boxing presented a Notice of Presentment of Proposed Final Judgment last week for the Court to sign which would have allowed for WOB to present to the escrow agent and disburse funds back to WOB.

A telephone conference originally set for April 26th has been moved back to May 10th.  The parties are expected to address the situation.

Ahead of their teleconference, the parties were offered to address the issue in letter form to the court.

Wilder sent a letter dated April 24, 2018 to the court:

Letter From Deontay Wilder 4.24.18 by JASONCRUZ206 on Scribd

The biggest argument in the letter was that the Court’s April 19, 2018 Opinion and Order granting in part and denying in part the parties’ motions for summary judgment, had the effect of dismissing “all claims” except the defamation claim.  WOB’s attorneys noted, “Judge Gorenstein concluded that the Bout Agreement granted complete discretion to the WBC to decide any doping question in this case, which had the effect of overruling the jury’s verdict that Povetkin ingested meldonium when it was banned.  It also pointed out that the Opinion and Order did not direct entry of a final judgment.

In its letter, it argues that consolidated cases retain their separate identity “to the extent that final decision in one is immediately appealable by the losing party.”  Here, WOB cites the U.S. Supreme Court in Hall v. Hall.

On the same day, WOB responded:

Letter From WOB 4.24.18 by JASONCRUZ206 on Scribd

Wilder argued that the Hall case differed from the instant case.  Wilder’s attorneys argued, “[I]t would make no sense and ill-serve judicial economy to grant Defendants’ request for entry of two separate judgment on the same claims in two different cases.  To the contrary, such a result would sow serious confusion before this Court and on the appellate level, and there is no precedent to support that outcome.”

Payout Perspective:

 From WOB’s perspective, the argument by Wilder is seemingly a way to prolong the litigation to prevent WOB from receiving the millions of dollars kept in escrow.  The fundamental legal argument is whether the defamation claim is separate from the other claims made by the parties.  The U.S. Supreme Court case has varied interpretations by the parties.  Wilder believes that there should be one entry of judgment while WOB believes that there could be two judgments made for the one case.  Once again, it appears that the Court was not clear in its ruling as its Order deciding the Motions for Summary Judgment could have outlined the issue or gave guidance as to whether an entry of judgment should occur or pending the litigation of the defamation claim.  The question one might ask, is whether dismissing the claim would allow for this case to end barring appeal.  We will see May 10th.

What was the court thinking in Povetkin-Wilder?

April 26, 2018

The ruling in the Alexander Povetkin-Deontay Wilder case last week was a surprise for many that have been following the case.

Opinion and Order by JASONCRUZ206 on Scribd


The lawsuit was based upon a drug test which Povetkin failed in lead-up to a fight with Wilder in Russia.  Wilder did not travel to Russia after learning of the failed drug test.  Wilder first sued Povetkin and his promoter World of Boxing as a result of Povetkin’s failed test.  Povetkin filed counterclaims against Wilder for failing to go to Russia 7 days prior to the bout date to which Povetkin claims was a breach of the Bout Agreement.  He also filed defamation claims against Wilder for bad-mouthing the heavyweight after drug test results revealed he took Meldonium.

The Court opinion deciding the Summary Judgment motions relied on the Bout Agreement which was subject to the World Boxing Council’s Rules and Regulations.  It cited language in the Agreement which stated that “any dispute or controversy” would be bound by the Rules and Regulations of the WBC.

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

In February 2017, a jury just took 32 minutes to determine that Povetkin took the banned substance Meldonium post-January 1, 2016, however that did not mean much in the outcome of this Summary Judgment motion.

One of the overarching issues in the lawsuit as to who is to blame for the failed fight in Russian in May 2016.  You might infer from the news of a failed drug test from Povetkin that it was the Russian.  However, Povetkin claimed that Wilder’s failure to appear in Russia forced the hand of the regulating body, the WBC, to call off the fight.

The WBC Bout Agreement takes precedent here as the Court examines the contract in applying basic contract principles.  But in its application, there seem to be things that don’t make sense.

“We begin by noting that the Bout Agreement contains no language mandating that each fighter refrain from ingesting banned substances.”

The inference one might yield from this sentence of the Court opinion is that tis ok to used banned substances.  Based on this, the Court held that Povetkin did not breach the Bout Agreement because it cannot conclude when/if he ingested the banned substance Meldonium. Obviously, this is opposite the jury finding.

The good news for Wilder is that there was no finding of a breach of the Bout Agreement when Wilder did not go to Russia for the fight with Povetkin.  The Court notes, “[t]here is simply no evidence that the WBC’s postponement decision was a “normal or foreseeable consequence” of Wilder’s actions, or that Wilder’s acts otherwise caused the WBC’s decision.”  Povetkin and World of Boxing sought $2.5 million in liquidated damages that was part of the Escrow Agreement.  “While the WOB Parties argue that it was Wilder’s failure to appear in Moscow, rather than Povetkin’s positive test result, that caused the WBC to postpone the Bout…no reasonable jury could indulge in the speculation that would be required to conclude that this was so,” stated the Court opinion.  It went on to state, “[B]ecause a reasonable jury could not find that any breach by the Wilder Parties proximately caused the WOB Parties’ damages, the Wilder Parties’ motion for summary judgment dismissing the WOB Parties’ claim for breach of the Bout Agreement is granted.”

As for the escrow funds, World of Boxing is entitled to its release held in escrow but no interest because no judgment was entered against Wilder.

The claims for defamation filed by Povetkin remain although they may be dismissed pending further movement in this case.

The Court opinion seems to fly in the face of the original jury finding that Povetkin took Meldonium post-January 2016.  The opinion seems to lean entirely on the WBC Agreement for its determination on its procedure in determining the status of Povetkin based upon his drug tests.  The Court quotes WBC Rules and Regulations when it notes, “the WBC may in its discretion consider all factors in making a determination regarding responsibility, relative fault, and penalties, if any.”

The WBC did not issue a ruling on Povetkin’s positive drug test until August 17, 2016.  It noted that it called the bout off and reserved any further ruling.  It then determined that it was not “possible to ascertain that Mr. Povetkin ingested Meldonium after January 1, 2016.  After two additional rulings by the WBC which opposed the August 17, 2016 ruling, it overturned the decision and stuck with its August ruling.  It based this on a study showing Meldonium having the ability to stay in one’s system for more than five months.  It also noted Povetkin had negative drug tests six other times.

The WBC seemed to be dragging its feet in this case as it put off the ruling on Povetkin despite the litigation moving ahead.  There’s also the issue of Povetkin’s positive test for ostarine which happened after the lawsuit began.  Yet, the WBC did not penalize him for this and even stressed negative drug tests notwithstanding the two positive tests for Meldonium and ostarine.

This ruling seems ripe for an appeal.  The jury verdict seems to fly in the face of the Court’s ruling last week which seemed to defer to the WBC’s handling of the Povetkin matter.  Wilder’s side may just put this case behind them unless Povetkin is allowed to pursue its defamation claim.

Court decides Povetkin-Wilder Summary Judgment motions

April 20, 2018

The Southern District of New York has ruled on dueling Summary Judgment motions from Alexander Povetkin and his promoter of World of Boxing and Deontay Wilder.  In a ruling issued Thursday, the court has granted in part and denied in part both parties’ motions.   However, a closer read reflects that World of Boxing made out better than Wilder.

Opinion and Order by JASONCRUZ206 on Scribd

The Court first notes that despite a jury trial finding that Povetkin ingested Meldonium after January 1, 2016, he did not breach the bout agreement.

From the Court opinion:

It has been conclusively determined as a result of the jury trial in this matter that Povetkin ingested Meldonium after January 1, 2016.  It is undisputed that Povetkin’s urine sample provided to VADA on April 27, 2016 tested positive for Meldonium. Nonetheless, neither of these is a breach of the Bout Agreement.

The opinion relies on the contract terms and the rules agreed to by the parties infers that there it “does not require absolute abstinence from the use of banned substances, but by its terms requires that the boxer abide by “WBC anti-doping requirements.”  In turn, the CBP also provides that “the WBC shall have complete discretion to rule on culpability . . . . [And] may in its discretion consider all factors in making a determination regarding responsibility, relative fault, and penalties, if any.”

One might consider this a broad interpretation of the contractual provision regarding banned substances.   The Court goes on to essentially tell us that the jury trial didn’t matter because the WBC didn’t believe it could determine that Povetkin did not violate the Bout Agreement:

In this case, after issuing several conflicting and indecisive rulings, the WBC finally decided on November 7, 2017 that notwithstanding the jury’s verdict in this case, it would adhere to its earlier decision that it was not possible to determine whether Povetkin ingested Meldonium after January 1, 2016.  In other words, the WBC exercised its discretion to determine that Povetkin did not violate the CBP [Clean Boxing Program, the drug testing entered into by the boxers].”

In addition, the Court has released the escrow funds held up by Deontay Wilder after the fight did not go forward.  However, the Court did not grant WOB the $2.5 million in liquidated damages that was included in the escrow agreement which would have been triggered if it was found that there was a breach.  The Court noted that there was not a judgment filed against Wilder and that his representatives made the objection for disbursement in accordance with the agreement.  The Court did not find a breach of implied covenant of good faith and fair dealing. It also did not find Wilder guilty of breaching the Bout Agreement for not showing up in Russia for the fight as the Court opines that there was no evidence of his absence for the fight in Russia caused the cancellation.

A teleconference on the case will take place on April 26th.  At this point, the only claim that is left is WOB’s defamation claim which was stayed by the Court.

Payout Perspective:

It appears that the long, winding road of this litigation may be over pending an appeal.  And, it would not surprise me if an appeal would be in order.  The opinion essentially mutes any reason for the February 2017 jury trial which found that Povetkin ingested Meldonium post-January 2016.  The Court relies on the WBC’s later ruling on the matter to conclude that there was no actual breach of the Bout Agreement.  Frankly, the claim that “absolute abstinence” from taking banned substance is not a part of the Bout Agreement, rather compliance with the drug regulator is absurd.  Not only does it parse the meaning of the reason behind not taking banned substances, it is a “lawyerly” way around taking a hard-line approach on illegal drugs.

 

The issue of the Escrow Agreement is another interesting ruling but one that seems to have been decided correctly.  Although one might infer that Wilder attempted to hold up payment (or reimbursement) to WOB or Povetkin, it was the correct way to decide the disbursement of funds.  I don’t think that this part of the matter will be over yet.

 

MMA Payout will have more on this in the coming days.

Court denies World of Boxing’s request for Wilder emails re Meldonium in continuing legal drama

March 21, 2018

The United States District Court in Southern New York has denied a Motion to Compel in the World of Boxing/Alexander Povetkin lawsuit against Deontay Wilder.  Previously produced documents from Wilder’s attorney were determined to be work product by the Court.

The case has a long and winding history and while a jury determined that Povetkin had Meldonium in his system post-January 2016, the legal issues related to $7.15 million still held in escrow as well as allegations that Wilder breached his contract.  A breach of contract carries liquidated damages of $2 million.

Order on Motion to Compel by JASONCRUZ206 on Scribd

Central to the latest legal wrangling is a Motion to Compel documents originally filed last year by World of Boxing and Povetkin (“WOB”).  The motion was stayed (held off on a decision) until the end of last February’s trial.  The Court has now ruled on the issue and denied WOB from receiving emails from Wilder’s camp which discuss Meldonium.

The issue concerns 15 emails sent by Wilder’s attorney John Wirt after it was discovered that Povetkin tested positive for Meldonium.  Wirt has sent a letter to the escrow agent holding the purse money indicating that it not be released until resolution of the matter since it was Wilder’s position that Povetkin breached the Bout Agreement due to his positive drug test.  WOB objected to the letter which precluded the release of funds.

The emails were originally produced in written discovery but when WOB produced them at deposition, Wilder invoked a “claw back” provision which allows for the return of documents deemed attorney-client or work product.  On its privilege log, a list of documents withheld which lists the reason for not producing, it noted that the emails were attorney-client privilege.

Wirt’s emails were not sent to Wilder but his reps including Lou DiBella and Al Haymon.

According to the Court,  “The Wirt Email analyzes the WOB Parties’ mid-May [the fight was set to take place in late May 2016] explanation for the failed drug test that is at the heart of this dispute and discusses possible responses to it. Wirt recommends a course of action to the individuals receiving his email.”

Notably, there are subsequent emails from Shelly Finkel (Wilder’s co-manager) with his thoughts and the email is to employees of Wilder’s promoter, Lou DiBella.

WOB argued that the emails were discoverable because they were labeled as attorney client privileged and not work product.  Furthermore, they were not prepared in further anticipation of litigation which is a requisite in protecting a document via work product.  WOB argued that in deposition testimony by DiBella and Alex Dombroff, they were not thinking of a lawsuit.

The Court indicated that it could make the decision to deem the documents work product even if Wilder did not.  Secondly, it disagreed with WOB’s argument.  The Court writes that Wirt’s email was sent to protect the interests of Wilder in the prospect of litigation as Povetkin had failed a drug test and there was potential for the fight to be called off.  Moreover, Wirt had to protect his client’s interest with respect to the escrow money.

After an “in camera” [looking at the documents] review of documents, the Court determined that the emails were work product. Additionally, they stated that WOB did not show a “substantial need” for the documents and the Court determined that the emails were protected under work product.

Payout Perspective:

This case seems to be far from over as the fight over which side breached the Fight Contract and who should receive the $7.15 million in escrow.  Wilder was set to make over $4.5 million while Povetkin was going to make $1.9 million.  The winner would have earned an additional $715,000.  However, Povetkin’s promoter, who made the successful purse bid, would like the money back.  In addition, they claim Wilder breached his agreement to travel to Russia despite the news of Povetkin’s drug test.  The contract indicates a liquidated damages penalty of $2 million.  One has to wonder the importance of the emails as WOB has seen the contents.  It’s a matter of being able to utilize them in evidence.  Since the Court has determined them to be work product, they cannot be used at all.

MMA Payout will keep you posted.

2017: The year in boxing

January 6, 2018

2017 was a great year for boxing which saw some great fights and the spectacle that was Mayweather-McGregor.

The year started off with the talk about Mayweather-McGregor as the UFC’s lightweight champion stirred the pot by going on a rant on Instagram where he wrote “F*** the UFC.”  Dana White warned that if Conor went on without the UFC it would be an “epic fall.”

January also saw Al Haymon get a court victory with a dismissal of Golden Boy’s Antitrust lawsuit.  In a ruling which did not include oral argument, the Judge determined that Golden Boy did not come fort with genuine issues of fact to support its claims.  Most importantly, and a word of caution for the Plaintiffs in the UFC Antitrust lawsuit, the Judge reiterated that the antitrust laws protect competition, not competitors.

Although Golden Boy suffered the loss in court, it inked a deal with ESPN with 42 fights airing on ESPN starting in March 2017.  As the prevailing party, they requested legal costs in the amount nearing $35,0000.  Golden Boy appealed the dismissal but it appears that the sides resolved the case as the appeal was dismissed by agreement of the parties.

The Deontay Wilder-Alexander Povetkin/World of Boxing lawsuit went to trial in February and it did not take long for a jury to decide that Povetkin took Meldonium after January 1, 2016.  However, the case continues with the parties litigating the other claims as well as the issue who receives the millions of dollars that has been placed in escrow.

Wilder was also sued by rival Dominic Breazeale for a hotel melee.  The case was thrown out as the episode happened in Alabama but Breazeale sued in California.

Showtime Boxing had the highest rating of 2017 with Adrian Broner taking on Adrian Granados drawing 779,000 viewers.  The fight also aired on Twitter as the service continued to expand its offering of streamingClaressa Shields became the first female boxer to headline an event on premium network television. In March.

The GGG-Daniel Jacobs PPV drew between 130-150K PPV buys.  GGG’s next PPV appearance against Canelo would draw much higher as the draw drew 1.2 million buys.  The fight also had a higher price tag than usual:  $79.99 HD.  A rematch for May 2018 seems imminent.

March saw the second highest-rating for network viewership as Keith Thurman faced Danny Garcia in the battle of unbeatens on CBS.  The fight drew 5.1 million viewers while the overall telecast drew 2.7 million viewers.

After going through a lot of money, the viability of the PBC obtaining a media rights deal was brought into question.  Its deal with Spike TV ended but the organization found a home on FS1.

In 2017, it seemed as those everyone applied for a boxing license:  Conor, Nate Diaz, Cyborg…

Anthony Joshua faced Vladimir Klitschko in one of the biggest fights of the year.  The event aired live on Showtime and tape delay on HBO.

May’s Canelo Alvarez-Julio Cesar Chavez, Jr. PPV drew 1.3 million buys and its replay on HBO drew 769,000 viewers.

In May, we took a look at where was Boxing’s next PPV star.  Aside from Canelo Alvarez, there are several contenders to be the next star on PPV including Anthony Joshua.

In June, The Money Fight was announced.

Also in June, Top Rank announced that it had a deal with ESPN to air fights with the first one being Manny Pacquiao fighting Jeff Horn in Australia on July 1st.  The debut earned big numbers as Pacquiao lost a controversial decision to Horn.

The Andre Ward-Sergey Kovalev II PPV in June drew between 130-135K PPV buys.

July saw a 4-city tour to promote the Mayweather-McGregor bouts.  It was an ambitious tour that fans clamored to be a part.  It was announced that the PPV price would be $99.95 HD.

The Money Fight drew huge numbers and was a big financial success.  We wrote about it here.  The event had streaming issues on both UFC Fight Pass and Showtime platforms.  As you might expect, there were lawsuits which are still matriculating through the court system.

Despite the big event, HBO ran an event featuring Miguel Cotto and it did well considering as it drew 730,000 viewers.

Capitalizing on the publicity of The Money Fight, announced an ESPN deal which will include airing its fight library on an OTT service that will launch in 2018.

Austin Trout sued the WBO which included claims under the Ali Act.  The case was moved to federal court in Puerto Rico where the WBO is seeking to dismiss the case and move it to arbitration.  The case will be an interesting look as to whether the court will allow a claim under the Ali Act will go to arbitration.

In September, Magomed Abdusalamov settled with the state of New York for $22 million for injuries sustained in a fight in 2013.  Abdusalamov was left with a brain injury and paralysis due to improper conduct and lack of training by the New York State Athletic Commission.

A huge ESPN fight between Vasiliy Lomachenko and Guillermo Rigondeux drew 1.73 million viewers.  The overall telecast drew 1.487 million viewers.

In December, Showtime announced Mayweather-McGregor drew 4.3 million domestic PPV buys.  This is off from the 6.7 million Dana White had stated.  After hearing of the announcement, White took issue with Showtime’s numbers.

One of the bigger stories to watch going into 2018 is the announcement by Dana White that he will be promoting boxing.  Zuffa Boxing, a t-shirt worn by White during The Money Fight press tour, was a hint that White was up to something.  White made it official late in the year.  He indicated that he was meeting with Floyd Mayweather.  Despite stating that he will never work with Showtime again, he said he would be willing work with other promoters with the exception of Bob Arum.

Wilder-World of Boxing case continues with Motion to Compel documents re Meldonium

October 26, 2017

The Deontay Wilder versus World of Boxing/Alexander Povetkin case has not ended.  Despite a Court ruling which denied World of Boxing and Povetkin’s (collectively WOB”) motions for new trial and/or motion for a judgment notwithstanding the verdict, the parties continue with the other elements of the causes of action.

In September, the Court denied motion to overturn the February jury verdict which determined that Povetkin took Meldonium after January 1, 2016.  Meldonium was a banned substance post-January 1, 2016.  He claimed that the detection of the Meldonium stemmed from taking it sometime in 2015.

A Joint Status Report filed with the Court mapped out further happenings in this lawsuit.  There is scheduling for the potential of a Motion for Summary Judgment and WOB has filed a Motion to Compel documents.

At this point, the attorneys for WOB filed a motion to compel certain documents from a string of emails from May 25, 2016.  This came to light during a deposition in which a WOB lawyer attempted to question a witness about the email string.  The lawyers for Wilder requested to “clawback” the document.  A “clawback” is a provision which allows the return of documents that were erroneously provided to the other side.  The reason for the “clawback” is that they are protected by a certain privilege or confidentiality.  This occurs in high-volume electronic discovery cases.

Wilder asserts that the emails were confidential communications protected by attorney-client privilege.  The Wilder privilege log which lists the documents that have not been produced to the other side states that they are protected by the Attorney-Client Privilege.  WOB claims that these exceptions do not apply.  The gist here is that the documents that are being withheld are said to be confidential because they include attorneys in the string of emails.  However, WOB claims that these emails are not protected because they were provided to third parties.

Payout Perspective:

Just when you thought that this case might be over, it continues. It appears that the parties are moving forward with the Breach of Contract cause of action.  This motion to compel was held until the finish of the post-trial briefing per Court order.  At this point, we don’t know the substance of the emails that are being withheld, only that they relate to Meldonium.  Wilder’s attorneys will likely argue that the substance of the emails is protected by attorney-client privilege or were provided to others maintaining privilege.  WOB argues that the substance of the emails is not legal in nature and do not uphold the privilege.  Even if the emails are proven not to be attorney-client privilege and handed over to WOB, the question is whether the substance of those emails will have any impact on the case.  A jury did find that Povetkin took Meldonium post-January 1, 2016.  Any information from the Wilder emails must provide something more to prove elements of WOB’s theory of the case.

MMA Payout will keep you posted.

Court denies World of Boxing’s post-trial motion for new trial in Wilder case

September 27, 2017

The trial court in New York has denied the World of Boxing’s Motion for Judgment as a Matter of Law or in the alternative, a New Trial.  It held that the jury did its job in evaluating the evidence and the credibility of witnesses and based on it was able to produce the jury verdict.

The case arose out of a failed fight between heavyweight champion Deontay Wilder and Alexander Povetkin.  MMA Payout has been the only source that has covered this legal case extensively.  You can find some of the background here.

Order by JASONCRUZ206 on Scribd

You may recall, the sole issue at trial was whether Povetkin ingested Meldonium post January 1, 2016.  When the trial took place in February of this year, the jury did not take long to determine that Povetkin had ingested the drug which was prohibited by the World Anti-Doping Agency on January 1, 2016.  Attorneys for World of Boxing (Povetkin’s promoters) and Povetkin filed a Motion for Judgment as a Matter of Law, or in the alternative a new trial.  Additionally, in June, the attorneys for WOB claimed a new study may give cause for the Court to open the case back up to litigation and/or set up a new trial.

via Wikimedia Commons

via Wikimedia Commons

Judge Andrew Carter of the U.S. District Court for the Southern District of New York determined that World of Boxing’s efforts amounted to an attempt to re-litigate the case.  Judge Carter indicated that the jury made the verdict based on the evidence presented and there was no miscarriage of justice or conclusion not based on evidence.  He opined that WOB was asking to take as truth the testimony of their experts only in coming to a jury verdict.  The Court also determined that the jury based its decision on their impressions of Alexander Povetkin as he was able to testify at trial.  Bluntly, the Court stated in its opinion that the jury flat out did not believe his testimony. Moreover, the new study that was produced by WOB attorneys in June was available online on February 6, 2016, which was the first day of trial.  Yet, it was not brought up at trial.

Payout Perspective:

The Court ruling comes over 8 months after the jury verdict.  The case may not die yet as WOB still has an opportunity to appeal to the 2nd Circuit.  If it does not, the issues of court costs and fees arise.  Also, there is the case of what happens to the money that has/had been in escrow which is one of the forgotten issues here.  In reviewing the case, it appears that the first issue with the handling of the case was the agreement to limit the case to just one issue regarding the use of Meldonium.  The carrot of having a shorter discovery schedule and a trial date sooner than later was likely a reason why the parties decided.  However, as we saw, the case involved issues related to the late production of discovery and experts.

The litigation was marred by contentious behavior as the order included a sentence about the parties’ behavior stating, “The Court takes exception to the behavior of both parties throughout the pendency of this litigation.  The parties are once again ordered to proceed with civility and in conformance with the Court’s local rules.”

MMA Payout will have more on this as it comes down.

 

 

Povetkin-WOB bring up new information in Wilder Meldonium case

July 5, 2017

The attorneys in the Deontay Wilder-Alexander Povetkin/World of Boxing case are at it again with letters to the court sent late last month.  The parties await a pending Motion for New Trial and/or Motion for JNOV but the attorneys for Povetking and WOB are lobbying the Court to consider newfound information.

As you may recall, at trial in February, a jury took little time in siding with Wilder.  The jury decided that Povetkin had ingested Meldonium after January 1, 2016, the sole issue at trial, and Wilder won as a result.  Povetkin filed a Motion for New Trial, or in the alternative, Motion for Judgment Notwithstanding the Verdict.

In a letter to the Court dated, June 21, 2017, the attorneys for Povetkin and WOB note that a WADA Technical Document dated May 17, 2017 stated that WADA advised that “urinary concentrations of Meldonium below 100 ng/mL “should not be reported” “as an Adverse Analytical Finding.”  The attorneys argue that this was in direct contrast to the opinion of Wilder’s expert which noted that he follows the WADA technical documents.

Povetkin WOB letter to Court 06.21.17 by JASONCRUZ206 on Scribd

They also note that the WADA laboratory that examined Povetkin’s specimen has had its accreditation partial suspended.  The suspension was announced via WADA press release on June 20, 2017 and Povetkin and WOB argue that this “goes to the heart of this litigation.”  The argument is that the reliance on the accreditation by Wilder’s attorneys and his expert place the verdict into question since these issues have arisen after the verdict.

In response, Wilder’s attorney states that the two issues raised are irrelevant and are a ploy for another “bite at the apple.”  Wilder’s attorney notes that the WADA technical document does not go into effect until September 1, 2017.  Thus, the document does not go into effect until a year and a half after Povetkin’s positive test for Meldonium took place on April 27, 2016.

They also bring back the original question that was posed before the jury at trial earlier this year: “Did Alexander Povetkin ingest meldonium after January 1, 2016?”  This negates the argument of whether or not Povetkin would have tested positive for Meldonium under WADA guidelines.

WOB Letter 06.30.17 by JASONCRUZ206 on Scribd

With respect to the allegations that the UCLA Lab has had its accreditation partially suspended by WADA, Wilder’s attorney argues that the partial suspension does not mean that it cannot continue its regular anti-doping activities and is only for three months.  It stresses that the notice does not even apply to UCLA’s testing for Meldonium, which is central to the issue at trial.  It suggests that this fact would have likely been excluded at trial under Federal Rule of Evidence 403(b) due to the fact that its “probative value” is outweighed by its prejudicial effect.  It also suggests that this new information allows Povetkin/WOB to engage in wild speculation about the case based on assumptions.  For instance, it argues that Povetkin and WOB claim that Wilder’s expert at trial knew about the “impending suspension” which would imply that he was lying under oath.

Payout Perspective:

It has been several months since the attorneys for Povetkin and the World of Boxing have filed its motion for a new trial or trial notwithstanding the verdict without a ruling from the Court.  The latest wrangling are valid if you represent the defendants but the threshold for a motion for new trial would bet that there were significant legal errors.  The issues brought up by Povetkin and WOB seem to be more factual in nature.  Regardless, the bar to have such a motion granted (new trial or overturning a judgment) is high and somewhat difficult because you are asking the Court to overturn its own decision.  Rather, these arguments seem more appropriate for an appeal.  Moreover, the Court does not really have a time limit to decide on this motion whereas an appeal would have had more stringent guidelines.

MMA Payout will keep you posted.

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