A federal court in New York denied a preliminary injunction filed by boxer O’Shaquie Foster against his promoter DiBella Entertainment. The denial likely ends a dispute filed by Lou DiBella against his promoter.
Background on the lawsuit can be found here and in The Legal Submission Episode 21. Basically, Foster entered into a Promotional Agreement with DiBella Entertainment in April 2019 which required he is given a minimum of 3 fights per year in exchange for exclusive rights to promote his fights. While he had two fights under his belt prior to the July 2020 deadline, he did not receive his third due to the pandemic.
In March 2020, DBE offered Foster and other fighters he promoted an advance as a form of financial assistance. According to pleadings filed on behalf of DiBella he was advanced $2,500. The letter that came with the advance noted that acceptance of the advance would mean agreement that the fight contract would be tolled if a fight had not been completed by December 31, 2020.
DiBella enforced a Force Majeure clause in all of his fighters’ contracts which extended the length of the time that each boxer was under contract. Due to the pandemic, promoters were unable to hold events. Citing Top Rank’s fights in the bubble last summer, Foster and his lawyer claimed that DiBella’s enforcement of the clause was wrong. They also cited the fact that DBE did not offer Foster a third fight pursuant to the terms of his contract which required three fights within a year. But, DBE’s enforcement of the Force Majeure clause would have tolled the deadline for Foster’s third fight.
Foster sought to halt the enforcement of his Promotional Agreement (PA).
The Court did not believe Foster proved the requisite factors needed in a Preliminary Injunction. He argued that he wasn’t provided proper service. But, DBE argued that he had not informed them of the possibility of a breach. The Court determined that Foster did not show that he would succeed on the merits of the lawsuit.
The Court explained the Force Majeure Clause and cited instances in which prior courts have found in favor of a promoter.
The Court determined that Foster failed to show that he would be irreparably harmed (a requisite for the granting of a preliminary injunction) as evidence pointed to the fact that DBE was being harmed due to the pandemic and could not put on fights for Foster. It took on the measure of notifying fighters as well as offering advances. Foster argued that DiBella has a “stable of boxers that it can profit from and that the risk of reputational harm to DBE is illusory. ” But the Court points out that the argument is “undermined by the threats made by Foster’s attorney that DBE’s defeat would result in the wholesale departure of its remaining stable of fighters.”
Payout Perspective:
Without the preliminary injunction, Foster will have to work with DiBella with respect to finding another fight for him. It’s interesting to note that the Court was not persuaded by Foster’s argument that Top Rank had started back up with boxing in May/June 2020 and that DBE should have obliged Foster with his third fight within that time. The Court also noted evidence submitted by DBE that Foster seemed fine with the promotion done for him and thus the inference was that the lawsuit was due to Foster’s lawyer. The denial of the preliminary injunction seems to find favor in DBE’s Force Majeure provision in its fighter contracts. Despite the fact that Top Rank had started back up last summer with fights within a “bubble” environment in Vegas, the underlying facts that promoters were not able to run events without attendance revenue was a detriment to the promoter. While Foster was hurt due to the lack of his third fight per the terms of the promotional agreement, it was clear from the hearing that DBE notified their fighters and advanced fighters compensation. While the compensation had to be repaid, the evidence reflects an acknowledgement of the pandemic and special circumstances which the promoter was fully aware of an its affect on the fighters.
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