As the parties in the UFC lawsuit await the results of Judge Richard Boulware’s opinion granting class certification for the ‘bout class,’ we take a look at the reasons that the ‘identity’ class did not get certified.
For a refresher:
We may infer from the brief Court hearing last month that the Judge will be denying the motion for class certification for those affected by the alleged anticompetitive scheme suppressing the identity rights of contracted UFC athletes.
The prime plaintiff affected by this anticipated decision is Nate Quarry. In February 2017, Zuffa filed a motion for partial summary judgment to dismiss his claims. The argument was very simple. The statute of limitations on his claim has run out. There is a four-year statute of limitations on antitrust claims like the one filed in which Quarry had to have filed a claim. Since the lawsuit was filed outside of the scope of the claim, his claim is over.
Quarry’s last fight in the UFC was March 31, 2010. He had signed a Bout Agreement for that fight on January 13, 2010. With the lawsuit filed in December 2014, Quarry’s claims would fall outside of the time to file. Plaintiffs argued that the statute of limitations were tolled due to the impact of the ongoing injury. This would be that the sale of Quarry’s name or likeness on UFC merchandise likely extends into the present day considering its availability and/or the fact he appears in events that are still available through UFC Fight Pass.
For those athletes that still may have claims related to their name and likeness, Zuffa argued that the exact injury claimed would vary by athlete. This was due to the fact that Zuffa indicates that not every contract was the same as it relates to the use of a fighter’s identity. This inference would be interesting to examine if contracts are released indicating a variance in how each athlete would be paid.
Not all athletes grant Zuffa all of these rights, and within each grant of right there are variations in the scope, exclusivity, and/or compensation for that grant of right that make proof of impact across all grants of identity rights incapable with class-wide evidence.
Zuffa makes the assertion that the name and likeness of an athlete is personal to the athlete and therefore cannot be brought as a class action because each claim would be different. Moreover, the type of damages would not be the same.
Obviously, plaintiffs might argue that the lack of information it had in its possession may have detracted from its claims (i.e., athlete contracts indicating compensation for use of an individual’s name or likeness).
But it would appear that the Court saw this claim as Zuffa argues. The individual identity rights belong to each fighter. Based on the requirements under Federal Rule 23 allowing for class actions, the claims would vary which would suggest the inability to grant class certification.
This would be a tough blow for those athletes that had to sign over their intellectual property rights for little or nothing because they felt coerced. For instance, many fighters that appeared in the early iterations of the company’s video game were not in a bargaining position to negotiate the license of their likeness for it. Recall, Jon Fitch stating that he was dropped from the company because he would not relinquish his identity rights. While we might not have the specific information, it would not be out of the ordinary for the company to require that an athlete allow Zuffa to license their name and likeness for a video game forever. Thus, preventing any meaningful future negotiations.
Plaintiffs argued that due to Zuffa’s anticompetitive means in controlling the buyer and seller market for professional MMA Fighter Services, they undercompensated athletes which included the use and likeness of those under contract.
In its Reply Brief, Plaintiffs seemed to narrow the Identity Class to those “who received a payment or entered an agreement during the Class Period.” The inference is the one Zuffa argued which is that Zuffa did not utilize the rights of every athlete under contract. Does that mean that it is conceding its point? Maybe.
The standard for Class Certification is a four-part test. This would be the numerosity of the proposed class (how many members), the commonality (question of law) of the proposed members, the typicality (proposed representative class claims are typical) and the adequacy of the attorneys representing the class. Assuming that the lawyers are adequate to bring the case, the three other issues are outstanding when it comes to the question for granting certification for the Identity class.
In this case, the prediction for why Judge Boulware is denying this claim is that the claimed damages are not typical for the proposed class members. While the commonality of the issue may be the same and the number of athletes impacted would be enough, the typical claims are hard to decipher as a class since the identity rights of the individual would be specific to that athlete. So, the damages may be more for an athlete that was in a video game as opposed to one that may have provided their name and likeness to an event poster.
It seemed that the Court had decided this as early as August 2019 when the Evidentiary Hearings took place in Las Vegas. On Day 6 of the Evidentiary Hearings in a discussion with Plaintiffs’ Counsel (Mr. Davis), Judge Boulware notes it was “highly unlikely” that he would certify the identity class.
Obviously, we should know more once the opinion is issued. At that point, MPO will let you know more.
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