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

Rapper DMX has been sued for $1 million backing out of a celebrity boxing match that was part of a Boxing/MMA card called "Alabama Pride" slated for December 12, 2009 in Alabama.   

Documents posted by TMZ (add requisite grain of salt) indicate that DMX wanted the "fight" staged in a way that protected both his safety and his reputation.   While Thunder Promotions is not above advertising a fight featuring a rapper whose best martial arts credential is that he co-starred with Steven Seagal, it does draw the line at fixed fights.  DMX is out.  Coolio is in.  Really. 

Several lessons here:

1.  Before you promote a fight, make sure those on the card actually plan to take part in a real fight.  (Of course, this may have happened here as a lawsuit has been filed, but see Number 2.) 

2.  The amount of damages sought in a lawsuit often have nothing to do with reality.  (19,000 people wouldn't pay to see DMX rap, let alone fight.)      

3.  If you are going to send out a document that makes your client look really bad, a confidentiality provision in that same document does not help you if the other party decides to go public with it instead of signing it.

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Zak Jensen has been named as a defendant in a wrongful death lawsuit filed in Minnesota state court.  The suit involves an altercation that Jensen had with 20-year-old Josh Gunderson in Mexico during a spring break trip in March 2009 when Jensen was serving as a bodyguard.

Jensen traveled to Puerto Vallarta with Gunderson and 19-year-old Ashley Jones.  At some point, while the three were sharing a room, Gunderson allegedly tried to kiss Jones while she was in bed and Jensen pulled him off.  From there, accounts differ, ranging from there being no fight to Jensen engaging in a confrontation in self defense.    

According to the Pioneer Press's account of the Mexican police report, Jensen stated to authorities:

I grabbed Josh by the shirt and took him off of (her) ... then he went to the bathroom, closed the door, and I stayed with (Jones) consoling her, and after a few minutes, I heard a loud noise," Jensen is quoted as saying in the Mexican police report. "I opened the door and that is when I saw Josh laid out on the floor of the bathroom.

According to a witness statement recounted by the Star Tribune, Jensen told the following to a hotel concierge:

"I was sleeping and I heard Ashley screaming and saying 'Get off of me,' so I got up and I saw Josh on top of her, he was attacking her, I took him away from her and he attacked me so I just defended myself and told him to go away, and he walked in the direction of the bathroom," Jensen is quoted as telling Perez. "We heard a strong noise in the bathroom, so I walked there and I found the boy right there," he told Perez, pointing to Gunderson's body.

In sum, it seems that Gunderson passed out in the bathroom and ultimately died after aspirating his own vomit, but it is unclear whether it was due to his blood alcohol content of .12 or due to an altered mental state resulting from the alleged altercation with Jensen.  As with any litigation, it is important to keep in mind that the statements in the filed lawsuit are just allegations and the defendants have not yet had a chance to tell their side of the story in court.

Ashley Jones' father, Jason Jones, and an industrial cleaning company he owns called Sterling Systems are also named as defendants. Jensen was employed by Mr. Jones and/or Sterling Systems to serve as Mr Jones's chauffeur.  Accordingly, these defendants could arguably be held liable for Jensen's actions, depending largely on whether the actions were within the scope of Jensen's employment.  It is not unusual for a lawsuit to name multiple defendants in the hopes to find someone who is able to pay a damages award or settlement.  Here, a business owner presumably has deeper pockets than a 7-3 mixed martial artist.  

Jensen recently fought on national television on The Ultimate Fighter.  Jensen had no fights between Gunderson's death and his fight on the show.  Jensen also serves as a guest blogger recapping TUF 10 episodes for Cagewriter on Yahoo! Sports.  

One has to wonder whether Yahoo!, Spike TV, or the UFC knew anything about the incident before putting Jensen in the national spotlight.  Gunderson's death did get a fair amount of publicity in his native Minnesota, but early reports did not name Jensen.

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A high school in Blue Springs Missouri is being sued because some students began MMA-style fighting in the gym when their scheduled wrestling practice was canceled. (Video of some of the fights that allegedly occurred that day is available here.)  Predictably, one student was injured and his family is now suing the school, its superintendent, its athletic director, the head wrestling coach, and an assistant coach who was allegedly present when the fights took place.

According to the Kansas City Star:

The lawsuit alleges that the Blue Springs wrestling program promoted extreme fighting and created Wildcat (school’s mascot) wrestling T-shirts that featured the Ultimate Fighting Championship emblem. Also, the school once employed a wrestling assistant coach, Matt Cox, who has since started a career as an MMA fighter.

Interestingly, the reason that Matt Cox (also known as Chris Cox) is a former wrestling coach at the school is that he was fired in 2006 for his own participation in mixed martial arts.  (I can't locate the original article on this story, but it was reprinted at MMAUniverse.)

Although the school will argue that the activity was not sanctioned and that it disapproves of MMA (as evidenced by its prior firing of Cox), I think the school is in hot water here.  The activity allegedly occurred on school grounds in the presence of a school employee.  Whether or not you think that juveniles should be allowed to participate in MMA (a subject for a future MMALB.com post) the bottom line here is that these kids didn't have parental permission.  It doesn't matter if the sport involved is MMA, wrestling, or cheerleading--starting the competition before mom or dad has signed off is a sure way to find yourself in court.  

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Willamette Week Online has reported that Matt "The Law" Lindland has sued former TUF contestant Gerald "Hurricane" Harris for allegedly failing to pay management fees.

Harris had previously been interviewed about his departure from Lindland's Team Quest after Harris appeared on The Ultimate Fighter's seventh season.  Thus, the dispute may stem from confusion over whether the departure from the camp also ended the representation agreement.

As the economy continues to struggle, I expect to see more of these kinds of suits.     

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In July, I quoted a report that Kimo Leopoldo was considering legal action against the internet troll that started the frenzy of false reports about Kimo's death.  It appears that a lawsuit is on the horizon, but against a far more well-known opponent: TMZ.com.

Although many blogs ran with the erroneous story of Kimo's untimely demise, TMZ was the first to report that the death had been "confirmed."  This threw fuel on the fire as TMZ's confirmation was republished by countless other sources.

TMZ ultimately took down the story, but the website's prior articles on Kimo still, to this day, show a link with the headline "UFC Legend Kimo Leopoldo Dies."  Kimo's attorney, Stephen Doniger, understandably finds TMZ's actions unacceptable.  Doniger and his client have thus been making the media rounds with Kimo submitting an "open letter'  to MMA blogs and both attorney and client appearing on Fox Fight Game. 

Doniger explained to me that he had contacted TMZ to try to get a retraction and to see if a resolution could be reached without litigation.  However, according to Doniger, TMZ has not only refused to post a retraction, it has not even bothered to reply to the correspondence.  Doniger says TMZ is running out of time, and a California state court lawsuit is being prepared which accuses TMZ of defamation and other related causes of action.  Doniger believes that TMZ's report caused Kimo harm because, among other things, the report said that Kimo had died of a heart attack.   Kimo is trying to clean up his image and such a report hearkened back to earlier reports of a drug-related arrest and may make MMA promoters hesitant to give him a fight for fear of a possible heart condition. 

I'll leave it to Doniger and the California courts to sort out whether a false report of someone's death can amount to defamation, but it's absolutely clear that TMZ engaged in irresponsible journalism, which troubles me a great deal. (Unless you've been a MMALB reader since the beginning you might not know that I went to journalism school so I take this somewhat personally.)Saying that someone's death has been "confirmed" has a very specific connotation.  While Beau Taylor should never have originally posted the false comments, the situation would not have gotten so out of hand so quickly if TMZ had not jumped into the fray without getting its facts straight.

While any media outlet can make an honest mistake (see Jewel, Richard) TMZ seems to have something against Kimo.  In February, it ran a story with the headline: "UFC Legend Has Finally Meth His Match."  The story related to an incident where Kimo was arrested near an automobile containing methamphetamine, but Kimo was never charged with possession of that drug.  In TMZ's defense, the police report was somewhat confusing and TMZ was not the only outlet to get the story wrong.  Unlike TMZ, however, Sherdog.com posted a correction/retraction and later ran a detailed article allowing Kimo to provide his side of the story. TMZ did neither. 

Score one for the MMA media. 

UPDATE:  This blog post was uploaded on September 6, 2009.  The morning of September 7, 2009, TMZ posted "Update: Kimo Is Alive!"  MMAJunkie.com scooped TMZ by 47 days on that one, which was not particularly difficult since Kimo held a press conference at the Orange County Sheriff's Department debunking the rumors of his death.

Score two for the MMA media. 

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Square Ring, Inc., the promotional company owned by Roy Jones, Jr., was the entity behind "March Badness" a hybrid boxing/MMA card March 22, 2009, that featured Bobby Lashley in the main event.    Square Ring has now sued UStream for copyright infringement, alleging that the company knowingly allowed users to upload and illegally watch streaming footage of the pay-per-view event.

Copyright laws prohibit copying or re-broadcasting someone else's program.  Thus, if UStream was directly putting copyrighted MMA events online, it would certainly be liable.  The grey area here is that UStream isn't posting any content directly.  Like YouTube or a typical internet bulletin board, users post the content that appears on UStream.  Typically, when a company just provides the space for others to speak, it is protected by "safe harbor" provisions in the Digital Millennium Copyright Act.  The protection is not absolute, however, as companies like Napster found out.

Square Ring's legal theory is, in a nutshell, that UStream knew copyright infringement was taking place and allowed it to happen.  In fact, before March Badness, Square Ring warned companies like UStream that it would crack down on internet piracy. 

Pirating pay-view events is as old as the events themselves, but the internet presents a whole new set of challenges. It's especially difficult for MMA promoters who serve a young, tech-savvy fan base.  Dana White has acknowledged that the UFC had an "incredible underground internet fan base," reported to have kept the sport of MMA alive in the lean years when its pay-per-view events were banned by cable distributors. 

The UFC has attemped to capitalize on the marketplace of the internet, offering live broadcasts of UFC events on Yahoo! for $44.95.  The flipside is that it also has to deal with mirror sites, like this one registered to a user in Istanbul, which offer the same broadcasts for substantially lower fees.

Like Viacom's ongoing lawsuit against YouTube, this case could have a dramatic impact not only on how MMA fans watch future broadcasts, but how user-generated content is distributed on the web in general. 

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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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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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For a good explanation on the weaknesses with Juanito Ibarra's lawsuit against Tito Ortiz, see Todd Martin's piece on MMAPayout.com.  The article explains that to have any real chance of success, Ibarra must prove he is a "private figure" rather than a "public figure."  

One factor generally considered in determining whether someone is a public figure is whether he has "access to the media."  This makes sense.  If news outlets are willing to report what someone says, that person has an easier time refuting any false statements made about them.  (I, however, do not have "access to the media."  That's why I have a blog.)

As an example of Ibarra's "access to the media," I found an interview Ibarra gave to a website called ThaFormula.com.  The most interesting thing about the interview is that Ibarra was hardly shy about sharing his own negative opinions of others in the MMA world.   Is Ortiz calling Ibarra a "thief" any more derogatory than Ibarra saying Chuck Liddell was intimidated by Rampage or that Vitor Belfort lacked heart? 

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