Silva cites privilege, Anti-SLAPP statute in motion to dismiss UFC defamation claims

Bloody Elbow reports that Wanderlei Silva has filed a motion to dismiss the UFC’s defamation lawsuit citing to dismiss the Complaint for failing to state a claim upon which relief can be granted, a “litigation privilege” and Nevada’s Anti-Slapp Statute.  The hearing is set for November 3^rd in state court in Nevada.

The motion to dismiss can be found here.

The lawsuit stems from two Facebook posts and a YouTube video made by the former UFC fighter claiming that the UFC fixes fights.  The UFC sued Silva claiming Defamation Per Se and Business Disparagement.

Silva’s lawyers argue that the UFC cannot show damages from his comments or disprove the comments were false.  They argue that the cause of action for Defamation Per Se relates to individuals and not entities.  Citing that the claim relates to personal reputation and not business reputation, Silva’s lawyers argue that the claim fails.

Next, Silva’s lawyers also state that the UFC fail to state a claim for business disparagement as they fail to properly allege malice.  The elements of business disparagement in Nevada are: 1) a false and disparaging statement, 2) the unprivileged publication by the defendant, 3) malice and 4) special damages.  In this instance, Silva’s lawyers take issue with the Complaint filed by the UFC stating that Silva “published the false statement with malice…” without further explanation.  They also go on to state that the UFC have no facts supporting “Silva published the statement with the intent to cause harm to Zuffa’s pecuniary interests, no facts that allege such pecuniary harm occurred, or facts demonstrating that he knew the statements were false or recklessly disregarded their truth.”  Finally, Silva’s lawyers claim that the UFC failed to show that the statements caused any damages.

Silva’s lawyers then claim that Silva’s statements are privileged under the “litigation privilege.”  In my prior post about this lawsuit, I stated that Silva could not claim a privilege to his statements.  Here, his lawyers state that he is entitled to one based on the fact that “communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged.”  Citing the fact that the privilege is deemed broad, Silva’s lawyers state that their client should fit under this umbrella.  Here, Silva’s lawyers claim that his statement were made in lieu of the “NSAC Case” in which he brought a lawsuit for judicial review after being fined and banned by the Nevada State Athletic Commission and “the Class Action” lawsuit which is in reference to the Antitrust action brought by former UFC fighters.

Finally, Zuffa’s attorney claim that the lawsuit should be dismissed as it violates Nevada’s Anti-Slapp Statute.  SLAPP (strategic lawsuit against public participation) allows those sued in defamation or libel cases the opportunity to get the lawsuits thrown out early unless the plaintiff can show a probability of prevailing.  It’s a way of protecting free speech regarding an issue of public concern.  The Anti-SLAPP statute has an expedited procedure in which a party may file a motion to dismiss the complaint under the law and treats it as a motion for summary judgment.  Essentially, it’s an expedited way to dismiss lawsuits that were brought with an ulterior motive to harass those from speaking out.

Payout Perspective:

While there are some salient points here by Silva’s attorneys they seems to latch onto the salacious, to satiate MMA fans, but the motion should focus on the best arguments for dismissal – the UFC Complaint lacks specificity, they cannot prove damages and the Anti-SLAPP statute.  In my opinion, the motion should highlight the argument that the UFC’s Complaint lacks the necessary components necessary for a Complaint.  This is highlighted by the inability to show the proximate cause between Silva’s words and damages.

Frankly, Silva’s statements are defamatory.  Among his statements, he says that the UFC fixes fights which goes to the heart of the company’s business.  However, it seems hard for the UFC to provide necessary evidence that they have or will be damaged as a result of these statements.

Secondly, the “litigation privilege” is not absolute in Nevada.  Statements made to the media during litigation are not protected and can form the basis for a defamation claim according to a recent case.  In Jacobs v. Adelson, the Nevada Supreme Court noted that the purpose of the litigation privilege is to allow parties to speak freely and openly during litigation without the threat of being sued.  But, it only applies during judicial proceedings to statements that relate to the litigation.  While Silva’s statements may not have gone directly to the media, there is the implication from the case that defamatory comments made to outside observers of a lawsuit can potentially form the basis for a defamation claim.

Silva’s case presents an interesting scenario since he was involved in the NSAC case but is not a party to the Antitrust lawsuit.  While his lawyers inferred that he may become a party and has knowledge of the case, he is not an existing part of the action.  Moreover, the statements Silva made that are at issue in the lawsuit occurred at a time when he was not a part of any active lawsuit (the NSAC case was being remanded at the time and he was sued prior to the appeal to the Nevada State Supreme Court).

So, the question is whether the “litigation privilege” extends to statements made outside of a lawsuit and when you are not a party.

The Anti-SLAPP claim is a viable claim brought by Silva’s attorneys.  Notably, some states have brought the statute into question as a violation of the constitutional right of due process in that it negates the opportunity for a fair trial due (Washington State recently struck down a similar law).  However, Nevada’s law is still in use although lawmakers are seeking to amend it concerned with a similar challenge to the constitutionality of the law.   Silva will have to convince a judge that the statements at issue were “a good faith communication” directly connected with a matter of public concern.  Sure, we can argue that fighters’ rights may be a matter of public concern but were the statements “a good faith communication.”?

Even if the UFC is concerned with the lack of specificity with a damages claim and/or the causal relationship between Silva’s statements and damages, it may still seek to amend the Complaint.  But, based on the motion, look for the UFC to win this round and the case to proceed to the discovery phase.