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

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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