Mixed Martial Arts Law Blog : Mixed Martial Arts Lawyer & Attorney : David Nelmark : Belin Lamson McCormick Zumbach Flynn Law Firm : Intellectual Property, Media Law : Des Moines, Iowa

In January, Jeff "The Snowman" Monson was ordered to surrender his passport during a court appearance related to his spray painting of an anarchist symbol on the Washington State Capitol building. 

Free advice (though not "specific legal advice," see disclaimer) to all aspiring fighters out there: If you are going to break the law, do not do so while being accompanied by a photographer for a national magazine.

UPDATE:   On July 28, 2009, Monson agreed to a plea bargain, where he may serve up to 90 days in jail.  The good news for him is that he gets his passport back and can potentially  fight overseas until he reports for sentencing in October.   

ANOTHER UPDATE:  The reports that Monson had to surrender his passport at this past Tuesday's hearing are erroneous.  Those reports link back to a story from January.   Although The News Tribune website lists the article as being published on July 29, it's a mistake.  The article originally ran much earlier as evidenced by Sherdog reporting on the same hearing on January 28, 2009.   In fact, Monson was granted access to his passport just two days after it was originally taken away.  This article is also, for some reason, erroneously listed as being published on July 29, 2009.  Thanks to the articles' author, Jeremy Pawloski, for helping me sort things out. 

YET ANOTHER UPDATE:  The original online version of the article with the great "Are you going to support my family now?" quote appears here with the proper date of January 28, 2009.   Note that Jeremy Pawloski writes for The Olympian.  The articles with the improper dates were picked up by The News Tribune, which I assume did "publish" them all on its site on July 29, 2009.  I hope that when that outlet repurposes content in the future it includes the original publication date. 

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On Monday, I blogged that the end of Affliction's MMA venture could be the beginning of its legal battles.   It seems I am not the only one who feels that way.

Today, as reported by MMAJunkie.com, came this quote from one of Fedor Emelianenko's representatives:

 "We're exploring all options at the time, legally with regard to Affliction and what we perceived took place," Steve Bash, M-1 USA vice president of legal affairs, said. "I can promise you and promise Affliction, if something was done wrong, someone will be held responsible."

If the reports are true that the revered Russian is going to sign with the UFC, Fedor was likely one of the least damaged fighters associated with the ill-fated Affliction card.  And, even if that falls through, when you're the world's best heavyweight, it's safe to say that someone will pay you to fight on TV.  Other Affliction fighters including Renato "Babalu" Sobral, Gegard Mousasi, and now Jay Hieron, have also found a home with StrikeForce.  Vitor Belfort is going back to Brazil.  But, there's still more than a dozen fighters left out in the cold.  

Rumors are floating around about what compensation fighters might receive, ranging from full salaries to t-shirt deals, but it certainly seems to be in Affliction's best interests to satisfy the fighters.   It would not only prevent litigation, it would also give the company some much needed goodwill as it gets back into promoting the UFC.   If Brock Lesnar can take an in-ring shot at Bud Light, who knows what a scorned fighter might do to Affliction?

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The third time was most definitely not the charm.  Affliction: Trilogy went from looking for a new main event opponent, to looking for a new date for the event, to looking like a cautionary tale for anyone who thinks they can compete with the UFC.  In a classic case of "if you can't beat 'em . . . " Affliction has agreed to shut down its MMA promotional venture and in turn will be allowed to again sponsor UFC fighters.  (FightLine.com has a full timeline on the death of Affliction here.)  

A little more than a year ago, Affliction had tons of publicity for its first event and even had the backing of Donald Trump.  Today, if you visit Affliction's website, it's hard to find evidence that the T-Shirt company ever promoted an MMA event.

The cancellation of its third show might not have been bad news for Affliction as it reportedly lost money on its previous events and (even before the Barnett steroids scandal) may have been looking for the UFC to take over Trilogy and promote it.  It was, however, definitely bad news for all of the fighters who were scheduled to participate in the August 1st contest.

Many casual MMA fans don't realize that while some fighters make significant sums for appearing on televised cards, they have to pay all of their own expenses.  The athlete (not the promoter for the event) pays for his trainers, his gym time, his equipment, and everything else that goes into getting ready for a match.  A lot of these funds are "sunk costs" that have to be paid even if the event gets canceled.  Its no wonder that one prominent gym was "like a funeral" after Friday's announcement.

One fighter's manager told Sherdog.com that nothing in the Affliction contract gives the fighter any recourse at this point.  That may be the case (I've not seen the contract), but I suspect that litigation will still be forthcoming.  Unless the contract specifically addresses the shuttering of the organization, an argument could be made that Affliction violated the "good faith and fair dealing" obligation that most states' courts read into contacts.  And, if Affliction was really looking to get out of the promotional business as early as October, someone may allege that the company got fighters to sign up for Trilogy under false pretenses.  In short, while Affliction may have had its last fight on pay-per-view, its fights in court may be just beginning.

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Earlier this morning, Affliction called off its upcoming Pay-Per-View in the wake of losing half the main event when Josh Barnett tested positive for steroids.    I have not seen a copy of Affliction's fighter contracts (I would love to if anyone has access to them), but I see two significant issues that could arise.

1. How much hot water is Josh Barnett in?  Assuming the California State Athletic Commission's test is accurate, Barnett's wrongful conduct sank this event (and possibly the company).  If he breached his contract, he could potentially be on the hook for all of the money Affliction lost promoting the event.   

2. What does the cancellation mean for Fedor Emelianenko and the other Affliction fighters?  It is well-known that Trilogy was to be the last fight in Fedor's three-fight deal with Affliction.  Can he now escape his contract since the event was called off?  His contract likely says otherwise, but Fedor can make a compelling case.  He was ready to go.  And, according to CagePotato.com, Fedor said he would fight anyone Affliction put in as a replacement for Barnett.  Nonetheless, Affliction canceled the event.  If Affliction contends that it still has Fedor under contract, do those rights extend indefinitely?  If Trilogy never happens, will the MMA world forever be deprived of Fedor-Lesnar?

It seems as if it would be in a promoter's best interests to start having fighters warrant that they have not taken any banned substances and accept responsibility for any breach of that warranty.  Conversely, if fighters sign an exclusive deal, they would be wise to include a termination clause if the promotion ceases to actively promote events.

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Erroneous reports of the death of UFC pioneer Kimo Leopoldo spread like wildfire on Tuesday.  Numerous MMA and mainstream sites picked up the story, with TMZ.com going so far as to "confirm" the death. Yahoo!'s Kevin Iole provides a great recount of the hoax.    

One of the most interesting aspects of this story is the way that technology was involved.  The hoax itself began as a single post on an online MMA forum at The Underground.  Ever more fascinating, however, is that this may be the first hoax that was debunked over Twitter.  Both Iole and CBSSports.com's Denny Burkholder provided frequent tweets as they were investigating the story (as chronicled by Bloody Elbow.)

Now that Kimo has held a press conference to end all doubts, the legal wrangling begins.  As Kimo's manager reported to MMAJunkie.com:

You can see the posts from the original people and the original guy who started it. That gentleman was banned (from the site). We're trying to summons his name so we can sue him. We're not taking this lightly.

As it turns out, a summons (subpoena) won't be necessary as the poster's identity has already been revealed by The Smoking Gun who clearly relished the chance to point out the original faulty reporting by its main competitor. 

But, if it had been necessary, could Kimo have forced the forum to release the poster's identity?  The answer is likely yes.  Although this is a very unsettled area of law, one of the leading cases is Dendrite v. Doe, 775 A.2d 756 (N.J. Super. App. Div. 2001), which laid out some factors for a judge to consider in deciding whether to enforce a subpoena designed to reveal the identity of an anonymous poster.  Although it is a delicate balancing act, if a party can lay out strong evidence that a wrongful act was committed, the poster's identity can generally be revealed.  The First Amendment does protect anonymous speech, but it does not protect defamation.

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In the Complaint filed in the Ibarra vs. Ortiz, et. al. defamation lawsuit, Ibarra's counsel refers to Quinton "Rampage" Jackson as "a prominent figure in the Ultimate Fighting Champion industry." While I'm not sure if this was a reference to the Zuffa-owned Ultimate Fighting Championship or the broader industry of mixed martial arts, the unusual choice of words did remind me the I first heard the UFC referenced in a trial--back in December 2006.

Our client had been assaulted by carnival workers at a fair.  Our star witness was a member of the Army who practiced MMA in his spare time.  He stumbled onto the assault, grounded some carnies, and may have saved our client's life.  The defense attorney discovered the witness's MySpace page, which prominently featured Chuck Liddell and other UFC images. His cross examination began like this:

Attorney: Do you have pictures from something called the U-F-C on your MySpace page?

Witness: Yes.

Attorney: What does that stand for?

Witness:  The Ultimate Fighting Championship.

Attorney:  And does U-F-C also stand for Ultimate Fight... CLUB!

Witness:  No.

This was followed by a long, awkward pause.  

Unlike the witness (and me), opposing counsel was obviously not counting the days until the upcoming Liddell-Ortiz rematch.

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I guest authored a piece about the Intellectual Propery provisions in the standard UFC agreement that is currently the lead article on MMAPayout.com.  A direct link is available here.

MMAJunkie.com has also picked up my post on Josh Neer.  They have added some details (including a quote from Neer's manager) in this article.

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The Ibarra defamation lawsuit is interesting in that Ibarra sued not only Tito Ortiz (who allegedly made the defamatory comments), but also Punch Drunk Gamer (who conducted the interview in which the comments were made) and just about every MMA blog that subsequently reported Ortiz's allegations including Bloody Elbow, Five Ounce of Pain and Yahoo!.

How can Ibarra do this?  Generally, someone (or some blog) that repeats a defamatory statement is just as liable as the person who originally made the statements.  There is a principle called "neutral reportage" which sometimes protects media outlets that simply report that X made an allegation about Y, but this principle does not apply in California unless the person defamed is a "public figure."  If Ibarra is found to be a "public figure" his lawsuit likely fails anyway, so the "neutral reportage" doctrine offers little additional help for the blogosphere in this case.

Although I enjoy litigating defamation cases, I have no desire to be the defendant in one.  Therefore, I will not repeat Dana White's comments about Ibarra, which can be found at cagewriter. (Warning - as usual, White's comments contain profanity.)  I will however be keeping an eye out for a future Ibarra lawsuit listing cagewriter, YouTube, and ESPN Radio 1100 as defendants. 

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I plan to periodically update this post to maintain a current list of MMA Promoters/Companies with active websites.   

If I've missed you, please don't be offended.  Send me your name and web address and I'll be happy to post a link.

My home state gets top billing.  Other state-by-state and international listings are after the jump.

IOWA

Extreme Challenge

MaxFightsDM

Midwest Cage Championship

Victory Fighting Championship

Glory Fighting Championship

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The recent "Ultimate Cage Fighting Challenge" event in Pittsburgh has drawn the ire of the UFC.  As UFC Vice President of Regulatory Affairs Marc Ratner told MMAJunkie.com, "There's nothing wrong with [competition]. But there's some copyright infringement problems when they call themselves the UCFC."

I'm a long-time fan of Ratner, but he makes a common mistake in his statement.  What the UFC is really concerned about here is trademark infringement not copyright infringement.   Trademarks cover things that identify the source of goods and services. Examples include the UFC name and logo, and its slogans like "As Real As it Gets."  Copyrights protect works of art such as posters or DVDs.  (Patents--the third major arm of Intellectual Property--protect things like inventions, chemical compounds, and processes.)

In any event, the UCFC guys are in hot water.   While their official name includes "Challenge," other websites referred to their event as the "Ultimate Cage Fighting Championship."  Whether this resulted from internal references using the term "Championship" (such uses were reported by MMAJunkie.com) or was just a mistake on the part of third parties, it will help the UFC demonstrate the "likelihood of confusion" needed to prove trademark infringement.  And, even if the term Challenge had consistently been used, "UCFC" cuts a little too close to "UFC," especially when your event features an appearance by Tito Ortiz.

The UCFC website is currently down, bearing the message "Our site is currently being upgraded. Sorry for the inconvenience."   I suspect the "upgrade" will involve a pretty significant name change. 

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Many of you know about the tragic story of Zach Kirk, an MMA fighter who was paralyzed at an event in Shenandoah, Iowa.   Kirk broke his neck when he landed awkwardly while performing a double leg takedown. 

It breaks my heart to see an MMA fighter suffer, but it also makes my blood boil to see someone use the situation to push a personal agenda.   I'm not speaking of NY legislator and well known MMA-hater Bob Reilly (though he made predictably ill-informed comments about the situation) but rather fellow attorney Steve Lombardi who used Kirk's situation in an article arguing against tort reform.

In short, Lombardi says that we can't have tort reform in the form of caps on damages in lawsuits because if people can't sue entities like MMA promoters, taxpayers pick up the tab when someone gets hurt.  The problem with this argument is that it presumes, without any evidence, that the promoter of the event in Shenandoah did something wrong and would be liable in court.  Regardless of what one believes on the overall subject of tort reform, I think it's wrong to jump to the conclusion that just because someone got hurt, there must be someone out there who can be sued for big money.  Sometimes accidents are just accidents and no one is at fault.

Interestingly, Kirk's family members came to that conclusion and do not blame MMA for Kirk's injuries "telling KETV, 'It's a real safe sport. You've just got to watch what you're doing.'  Lombardi dismisses this as "spin" and assumes that the family will change their mind when the money runs out.  That is certainly possible, but it is also possible that the family recognizes that Kirk, a former high school wrestler, could have been hurt just as easily performing the same move on the mat instead of in the cage. Unless we want wrestling (and while we are at it, football and cheerleading) to get banned because we think families should sue the school districts every time someone sustains a catastrophic injury, we cannot hope that people sue MMA promoters under the same circumstances.

Lombardi closes his piece not by linking to the video of Zach Kirk's fight and the subsequent interview with Zach (which is very sad but which also shows the innocuous nature of the move that caused the injury) but rather a YouTube highlight reel where many of the early clips are of moves that are now banned in sanctioned MMA (such as knees to the head of a downed opponent or strikes to the back of the head).  Lombardi also shows a clip of one brutal knockout saying "Here is what MMA is all about."  That's akin to saying "here is what football is all about" and linking to the infamous clip of LT breaking Joe Theisman's leg.

The only thing that Mr. Lombardi and I appear to agree on is that Zach and his family are going to need a lot of assistance.  If you can help, please do so.

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