As announced last week, I am the newest columnist for MMAJunkie.com. My first piece--about the implications of a post-fight sucker punch such as the one Paul Daley landed on Josh Koscheck at UFC 113--appeared this morning. If you have ideas for future columns, please send them my way.
Tracey Lesetar at Sherdog has posted a detailed update on the status of Zuffa's trade secrets case against Bellator. In short, discovery in the case is proceeding despite Bellator's requests to stop that expensive process until the court rules on Bellator's pending motion to dismiss for "lack of personal jurisdiction."
The Fight Lawyer first reported the court's ruling denying the stay of discovery here.
Although you never want to lose a motion early in a case, this was a fairly minor skirmish. The big issue is the pending motion to dismiss. Essentially, Bellator claims it does not have enough contacts with the state of Nevada to be sued there (as explained more fully in Lesetar's piece). Briefing on that subject was completed by both sides in October 2010, and oral argument was requested, but there is not yet a hearing scheduled.
Last month Zuffa sued Ubisoft over the packaging of the new "Fighters Uncaged" video game. Justin Klein has the details of the suit in his piece at MMA Payout, but the crux of the case is that the back of the game box features the phrase "Become the ULTIMATE FIGHTING weapon!"
The case is a slam dunk for Zuffa. Zuffa has registered federal trademarks for not only "The Ultimate Fighting Championship," but also "Ultimate Fighting." The latter is registered in the trademark class covering computer games. By putting ULTIMATE FIGHTING in all caps, the game's marketers were clearly trying to capitalize on the name recognition of the UFC and The Ultimate Fighter television show.
Zuffa has at least three reasons for bringing this lawsuit. The first one is obvious. Zuffa makes serious money from licensing its trademarks to THQ which produces the UFC Undisputed video game series. If Dana White is willing to go to war with EA Sports, he sure isn't going to be pushed around by Ubisoft.
The second reason is the big picture concern that the UFC doesn't want to be associated with fighting outside the context of sanctioned mixed martial arts. For that reason, it won't even put on events in states where mixed martial arts is legal, but unregulated. Indeed, the Ubisoft complaint reads like a UFC press release with paragraphs like this one:
When Zuffa took over the fledgling UFC brand in 2001, MMA was banned in most states and had been branded by Sen. John McCain, Arizona Republican, as "human cockfighting." Since then, Zuffa has worked diligently and tirelessly to clean up MMA's image, improve fighter safety and transform MMA into a legitimate sport.
The last thing Zuffa wants is to be affiliated with a game where players "charge head first into the vicious world of illegal free fighting tournaments."
The third reason for filing suit is not discussed in the complaint, but it is, in my view, the most important. If Zuffa fails to protect its trademarks, a court could later find that the marks are abandoned. This is of special concern for "Ultimate Fighting" because the mark already runs the risk of being deemed generic.
If a mark becomes widely used to indicate a type of object (or in this case a type of sport), it can fall victim to "genericide" and become available for anyone to use. This has happened with previously trademarked terms like aspirin, escalator, and zipper. To avoid this, some brands like Xerox even run advertisements in an attempt to avoid genericide by encouraging media outlets to use their trademark properly (by referring to Xerox brand copiers rather than "making Xeroxes.")
We all have colleagues that stare at us blankly if we refer to MMA or even "mixed martial arts." If, however, we say "ultimate fighting" many of those same people know what we're taking about. This means Zuffa is walking a tightrope. It's great for the company if people consider its registered trademark synonymous with the sport, but it would be terrible if it could not stop competitors from referring to their own Ultimate Fighting events.
CagePotato.com recently reported that Zuffa sent a "cease and desist" letter to Google demanding that Google stop linking to websites illegally streaming UFC events. The article also states that Zuffa has sent similar notices to "websites that use unlicensed copies of Getty Image photos from the UFC website, regardless of whether or not attribution is given."
A lot has been written about this issue, and the focus has been on the fact that because Zuffa's letter was re-published and lists numerous websites that illegally stream videos, the approach may have backfired by informing the public of plenty of ways to steal UFC content. This post is meant to provide additional background on the underlying law and clear up some common misconceptions that have appeared in other articles about this issue.
First, the sending of a letter to Google about links in its search results is very different than sending letters to websites that are using unauthorized UFC photos. Even if such websites did provide attribution, they are still engaging in copyright infringement. Although there is a "fair use" defense to copyright infringement, providing credit to the original photographer and/or posting the photo on a non-commercial website does not entitle one to the defense.
Second, although the letter to Google contains a demand, it is not what attorneys would commonly call a "cease and desist" letter because Zuffa is not really accusing Google of unlawful conduct. Rather, it is providing notice under the Digital Millennium Copyright Act (DMCA). Google actually provides an explanation on its website as to how to send it such a notice. Google does this because the process (and the subsequent removal of offending links) allows it to take advantage of a "safe harbor" provision in the U.S. Copyright Act. 17 U.S.C. Section 512(d) says that an internet "service provider" that provides "information location tools" cannot be held liable for copyright infringement if it follows the DMCA notice and take down provisions. Although Google is not a typical "internet service provider," the definition of the term in 17 U.S.C. Section 512(k)(1)(B) is broad and includes a "provider of online services" that would likely encompass Google and other entities like its subsidiary, YouTube (which also invites DMCA take down notices).
Justin Klein, The Fight Lawyer, has a nice piece at MMAPayout.com explaining how the notice and take down process played out in this particular case.
Although Google invites the DMCA notices, it also provides them to Chilling Effects. I suspect this is, at least in part, to cut down the number of notices it receives. Zuffa and/or companies hired to serve as its agents in providing DMCA notices have sent at least 14 such notices to Google since October 1, 2010. It remains to be seen whether Zuffa will take a step back in light of the re-publishing of its notice on mainstream MMA sites.
Google has made the reasonable business decision to take advantage of the DMCA safe harbor rather than spending time and money in court, but it would be fascinating to follow any resulting litigation if Google just refused to bow to Zuffa's demand. Because Google does not display the infringing content itself, Zuffa would have to argue that Google is engaging in "contributory infringement." That theory requires a showing that the defendant "induced" or "materially contributed" to the infringement of another.
I know of no case that holds that providing a hyperlink can be a "material contribution" to infringement. In the real world, it's like telling someone where they can buy a pirated CD as opposed to making the illegal copies or holding a swap meet where the copies are sold. (And, yes, defendants have been held liable in the latter swap meet example.) I don't think providing such information is likely to be deemed contributory infringement, but, if it were, it could lead to a monumental change in the way search engines function--perhaps another reason that Google is going the safe harbor route.
If Google ever did pick the fight, however, Zuffa might finally meet its match. Although the UFC's parent company is worth an estimated $1 Billion, Google's market cap is $189 Billion.
I've posted a lot about the Iowa Athletic Commission's endeavors to regulate amateur mixed martial arts matches and subject them to the same scrutiny as professional matches. Despite the loss of some small promotions that exclusively showcased amateur fighters, I stand by my statement that the regulation of amateur MMA is "good for the development of mixed martial arts in the state of Iowa." The real question, in my view, is whether amateur MMA should be subject to the same regulations as professional MMA and, in particular, whether the matches themselves should be governed under the same rules.
The Association of Boxing Commissions has a set of unified rules for mixed martial arts, that are followed in most states, including Iowa. ABC does not have a similar set for amateur MMA, but it does offer a list of "suggested" amateur fouls that, in addition to professional fouls, also prohibits:
Effective January 1, 2010, the New Jersey State Athletic Control Board passed a separate set of rules governing amateur MMA. The passage of amateur rules by New Jersey is significant because, in 2000, New Jersey was the first state to regulate professional MMA and its rules served as a template for the ABC unified rules.
The New Jersey amateur MMA rules closely parallel the ABC's list of suggested fouls, which is not surprising since Nick Lembo, counsel for the NJSACB, is also chair of ABC's MMA Rules Committee. Some differences are that New Jersey also prohibits kicks to the head and any strikes the head of a downed opponent.
Many states do not have separate rules for amateur MMA, but most allow promoters to impose their own rules, as long as they are more restrictive than the state's rules.
It makes perfect sense to have more rules in place to protect the safety of amateur fighters. That said, every additional foul that is added to the rules creates a bigger divide between the amateur and professional ranks. When amateur matches are designed, in part, to give fighters experience before turning pro and facing harder competition, the benefits of amateur experience are lessened if the two types of fights have substantially different sets of rules.
Comments are on, readers. What additional rules do you think should be in place for amateurs?
Earlier this month I blogged that a promoter should "never EVER ignore the Athletic Commission." The folks at the Midwest Fighting Championship apparently do not read this blog.
The Midwest Fighting Championship (not to be confused with the Midwest Cage Championship, also based in Iowa) was scheduled to host an event in Bloomfield, Iowa, on August 20. Unfortunately, as of August 19, they had not yet submitted the necessary paperwork to the Iowa Athletic Commission. The required paperwork includes blood test results for the fighters and proof of medical insurance purchased by the promotion. As a result, the head of the Iowa Athletic Commission enlisted the local sheriff to serve a cease and desist letter and call off the event.
After getting the news, Midwest Fighting Championship's Facebook page said (in all caps and without any punctuation):
Yes, fights are off. If anyone thinks they can run a better show go ahead. Can't do anything when the state shuts you down.
The latter sentence is certainly true. You CAN'T do anything when the state shuts you down. You can, however, follow the rules and PREVENT the state from shutting you down. The regulations at issue here are quite clear. Indeed, in a June 27 post on that same Facebook page, MFC announced the release of the proposed regulations governing amateur mixed martial arts saying: "Basically the main changes for amateur fighters are they will need blood work for hiv, hep b, and hep c and will have to provide proof that they are 18 or older."
Iowa Administrative Code Section 875-177.5(11) requires that the blood work for each fighter be submitted to the state at least one week in advance of the event. Here, it appears that the Athletic Commission gave the promoters extra time to comply, but eventually had to pull the plug.
While the comments on the MFC Facebook page predictably call Iowa's officials nasty names for canceling the show, I find it awfully hard to fault them for doing their jobs and protecting the fighters. But, at the end of the day, whether a promoter ignores my view is not the point. The point is: never EVER ignore the Athletic Commission.
Whenever a new state passes legislation to regulate mixed martial arts, fans in that state (and around the country) rejoice, and Dana White heads to his Twitter account. Unfortunately, the excitement (while warranted) is often premature. Consider Alabama for example.
On May 21, 2009, Alabama Governor Bob Riley signed into law Senate Bill 98 which created the Alabama Boxing Commission. Less than a year later on March 22, 2010, the Governor signed Senate Bill 327 which renamed the Commission the "Alabama Athletic Commission" and provided for the regulation of mixed martial arts.
What many people may not realize, however, is that passing a law to regulate MMA isn't the same thing as actually regulating MMA. A "mixed martial arts law" typically provides that the Athletic Commission shall create the rules and regulations governing the sport. That can take a while.
In March, a member of the Alabama Athletic Commission opined that creating the regulations in that state could take up to eight months. Thus far, that process has not been completed. In fact, the regulations aren't yet even in place to govern boxing in Alabama.
Although things sometimes move significantly faster (like in Iowa) it is important to remember that even when a bill switches from being "just a bill" to being a law, it's still not the end of the road in MMA.
With the UFC suing Bellator, and Bellator suing the UFC, it seems like it was only a matter of time before their promotional counterpart to the North entered the fray. That's right, Maximum Fighting Championship is now also on its way to doing battle in a courtroom. MFC hasn't filed a lawsuit against a competitor, however. They are taking on the Edmonton Concert Hall Foundation, whic owns the famousWinspear Centre. Because the Winspear Centre is known as a music venue, its booking of three MMA shows made big news when it was announced this winter. It made bigger news when the plug was quickly pulled on the MFC events.
Most venue contracts have some sort of catchall clause that lets the venue cancel a show for all sorts of reasons... earthquake, union strikes, bankruptcy, and on and on. It remains to be seen whether deciding--after signing a contract--that your venue simply "isn't suitable" for mixed martial arts can pass muster before a judge. MFC hopes it does not and is asking for $500,000 in damages.
The Milwaukee-Wisconsin Journal Sentinel published this article about the Wisconsin MMA regulations about to go into effect on September 1. Most of the rules seem pretty typical. One that caught my eye, however, is a requirement that matches take place in "enclosed cages" in order to "prevent falls."
Such a regulation would certainly have the approval of Zuffa, which is the parent organization for the Ultimate Fighting Championship (UFC) and World Extreme Cagefighting (WEC). Other organizations including Canada's biggest MMA Promotion, Maximum Fighting Championships, would disagree. MFC issued a press release in June stating: "When not inside the unforgiving walls of a cage, fighters are forced to move and press the action. There’s none of the wedged-into-the-cage ground-and-pound or wall wrestling, there’s more stand-up fighting, more movement, and more overall excitement."
My personal preference is for a cage. I enjoy the additional techniques it brings into play, and I quickly grow frustrated with the re-positioning that is required when fighters get tangled up in the ropes of a ring.
What do you think readers? Is a cage or a ring better for spectators? Which is safer for participants?
It's been a roller coaster summer for MMA in Canada. In July, the B.C. Medical Association (the organization that represents doctors in British Columbia) called for a complete ban on the sport. The position made national news throughout Canada last week, but apparently had no impact on the Ontario Ministry of Consumer Services which issued a statement yesterday announcing its plans to approve MMA.
MMAJunkie has been all over this story and has already interviewed Marc Ratner about the UFC's impending arrival in Toronto. The impact on MMA fans in the United States could also be significant. As New York legislators see the economic impact of UFC 118 in Boston later this month and a major show in Toronto as early as March 2011, one has to wonder when they will decide that it would be best for New York residents to start spending some of that MMA ticket money in their home state.
Normally I resist the temptation to post non-legal MMA news, but I can't pass this one up. The fighters for the upcoming season of The Ultimate Fighter television show have been announced and TJ "The Spider" O'Brien is one of the 28 participants.
Getting on the reality show that many credit with saving MMA and having a shot at a contract with the UFC and international fame doesn't quite live up to the honor of having your photo at the top of MixedMartialArtsLawBlog but congratulations are still in order.
Video of the cast is available here. The 12th season of The Ultimate Fighter premieres on Spike TV on September 15, 2010.
As the world turns its attention to UFC 118 in Boston where former boxing champion James Toney takes on Randy Couture, I offer this look back at another famous boxer's ill-fated attempt to switch combat sports.
In the spring of 2010, Shine Fights Promotions, LLC announced that its third event would feature a fight between former Welterwight Champion Ricardo Mayorga and UFC Veteran Din Thomas. The addition of Mayorga (best known for fights against Vernon Forrest, Shane Mosley and Oscar De La Hoya), brought instant media attention to the Ft. Lauderdale based promotion. It also attracted the attention of Don King, Mayorga's boxing promoter.
The Timeline
October 1, 2009 – Mayorga Enters into a three-year, exclusive Promotional Agreement with Don King Productions, Inc. Interestingly, the copyright notice on the Agreement indicates it was last revised in 2006. At that time MMA did not hold the threat for boxers "crossing over" that exists today.
April 15, 2010 – Shine Fights Promotions holds a press conference announcing "Worlds Collide: Mayorga vs. Thomas" scheduled to take place ony May 15 in Fayetteville, NC.
April 20, 2010 – Don King sends a letter to Shine CEO Devin Price putting him on notice of Don King Productions' contract with Mayorga and that DKP will take “any and all necessary steps" to enforce its contractual rights. Putting Shine on notice about the contract was a necessary step. Since Shine was not a party to the contract, DKP has to establish that Shine was aware of the contract as an element of a lawsuit for "tortious interference" with the contract.
April 22, 2010 – Pamela Bradshaw, Shine's General Counsel, writes back and says the Agreement does not prevent Mayorga’s participation with Shine because the Agreement only covers boxing, not MMA.
April 27, 2010 – King writes back and “categorgically disagrees” with Bradshaw. He also uses the dreaded I-word...“injunction.”
May 5, 2010 – Shine issues a press release “dismissing Don King’s threat,” essentially daring Don King to sue them.
May 7, 2010 – Don King obliges.
May 15, 2010 – Broward County Circuit Judge Marc Gold holds an emergency hearing, and grants DKP's Emergency Motion for Injunctive Relief pending entry of an appropriate bond. Bond was required because the ruling restricted Shine's actions without a final determination on the merits of the case. If the court later determined that Shine had not tortiously interfered with DKP's contract, DKP could have been held responsible for the profits Shine would have received if the fight had taken place. King had two hours to up with a bond of $1 million—cash—on a Saturday! No problem. (Don King actually has a history with cash and duffel bags.)
The Complaint and Ruling
DKP's complaint in Broward County Florida alleged tortious interference and sought a preliminary injunction, asking the court to stop the Shine event from taking place. The complaint had two major arguments. The first was that DKP has an exclusive right to promote Mayorga's "Bouts." A "Bout" is defined in the Agreement as a “professional boxing bout." (This is probably why Shine thought it was in the clear.)
The second argument was that participation in Worlds Collide would place Mayorga in risk of "substantial physical harm" because Din Thomas has a black belt in jiu-jitsu and Mayorga had never competed in MMA. This argument was where DKP's firm- Zarco Einhorn Salkowski & Brito, P.A. -earned their money.
In granting the injunction, Judge Gold relied on paragraph XVI(c) of the Agreement which prevents Mayorga from entering into any other agreement “which would or might interfere with Fighter’s full and complete performance hereunder.” In short, the court appeared to believe that Mayorga might get hurt which would prevent him from engaging in boxing matches promoted by DKP.
The Aftermath
Shine Fights announced that it was going ahead with the fight despite the Court’s order [note: that would have been an even worse idea than daring Don King to sue them], but ultimately had the choice removed from their hands when the North Carolina Athletic Commission pulled the plug on the whole event.
Ron Foster who was the matchmaker for the ill-fated event has now left the company entirely. In his intervew with MMAWeekly.com, he explained that he was left alone to deal with the events in North Carolina while Devin Price was stuck in Florida dealing with the litigation. That would explain why, shortly after the event was canceled, Price was not aware of the reasons for the cancellation. Subsequent reports indicated that it was because Shine had not provided the Athletic Commission with the funds that were to be distributed to the fighters and/or that a doctor was not going to be in attendance at the event. Terrance Merriweather, chair of the North Carolina Boxing Authority, told MMAJunkie.com that: "The show was canceled over concerns [about] the fighters' safety and well-being."
Shine and the fighters who were slated to participate in the event continue to trade barbs in the press with Shine claiming the fighters were taken care of (with 25 or 35% of their show money) and some fighters claiming they haven't received a dime.
Shine has claimed that it plans to put on another event this summer, but their website continues to promote Worlds Collide.
Shine's appeal of the ruling was dismissed, and Don King got his money back from the court. Sadly, the court issued him a check. No word on whether the duffel bags were returned.
The Lessons for Promoters
1. Do everything you can to make sure that your fighters are not under contract with someone else.
2. If you get a letter threatening litigation, take it seriously. Sometimes, such letters are a bluff, but it's tough to go into an event with the threat of an injunction hanging overhead.
3. Most importantly, if you're a promoter, never EVER ignore the Athletic Commission.
The internet is abuzz about the UFC suing Bellator, but in another less publicized lawsuit, the shoe is on the other foot. Square Ring, Inc. (the promotional company of former boxing champion Roy Jones Junior) has sued Zuffa, LLC and Roy "Big Country" Nelson for allegedly interfering with a contract Square Ring had with Nelson.
More details on the case are in Robert Joyner's article on MMAFA.tv.
Editor's Note: This post was originally written in August 2009, but is periodically updated as additional states pass mixed martial arts regulations.
This post will link to all of the State Athletic Commissions which regulate Mixed Martial Arts events (or which would regulate them upon legalization in that state). State MMA regulations are changing regularly, so you should not rely exclusively on this list--or even the athletic commission's website--in determining whether MMA is legal or what rules to follow. As just two examples, both Alabama and South Dakota signed bills creating boxing commissions in 2009. The best bet is to contact the licensing authority directly to confirm what is allowed and whether the posted rules are current.
44 states now officially sanction Mixed Martial Arts. The holdouts are Alaska, Connecticut, New York, Vermont, West Virginia, and Wyoming.
ALASKA (No Commission)
Continue Reading...As first reported by Kevin Iole at Yahoo! Sports, the parent company of the UFC has sued Bellator, alleging that the rival promotion wrongfully gained access to, and used confidential contracts and other documents created by Zuffa. The alleged source of the disclosure is MMA superagent Ken Pavia.
Justin Klein, author of The Fight Lawyer blog, provides an interesting and detailed analysis of the lawsuit here.
More to come....
David Nelmark is a partner in the Des Moines, Iowa law firm of Belin McCormick, P.C. He helps individuals andMore...
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