MixedMartialArtsLawBlog Year-End Updates

Posted on December 31, 2009 by David Nelmark

As 2009 comes to a close, I wanted to provide updates on a few of the year's MMALB columns.

Rapper DMX  Pulls Out of MMA Fight.   According to this statement released by the promoter, the entire event had to be canceled because "[w]hen [DMX] decided to back out of the event due to our refusal to fix his fight, it left Thunder Promotions LLC with little time to promote an event with a replacement headliner."   According to other sources only a few hundred tickets had been sold.

While there is a tremendous amount of comedic value in writing about an MMA event where DMX is deemed a "headliner," the cancellation does have sad consequences for the other fighters on the card, especially Iowa's own Travis Fulton (who has 192 MMA wins on his record). Fulton was looking to reinvent himself and make it to the big show.  Instead, according to his manager, Chad Bergmeier, all Fulton got after arriving in Alabama was a redeye flight back home.  To date, the promoters still have not come through with Fulton's paycheck.

MMA Organizations Battle Piracy -  The Square Ring v. UStream lawsuit has gotten bogged down, but UFC co-owner Lorenzo Fertitta recently testified before the House Judiciary Committee (along with executives from Major League Baseball) about the importance of cracking down on online piracy.  I think it's a watershed event when an MMA bigwig gets to go to Washington to speak alongside a Big Three (NFL, NBA, and MLB) representative.     

This related Cagewriter article is interesting.  It covers the testimony and also provides an example of why if you are planning to tell people how to steal a pay per view broadcast you should not first send an email to event promoters. 

Jon "Bones" Jones's Appeal to the NSAC is Denied.  MMAJunkie provides a full recap.  While I am not surprised at the denial, I am still waiting for someone to comment and resolve the discrepancy between the referee only deducting a single point, but then calling Jones's downward elbows an intentional foul.

And, most importantly, Kimo is still alive!

I leave you with one of my favorite MMA quotes of the year.  It's not law-related, but it is nonetheless worth sharing, and it comes from MMA Journalist Jim Genia:

BJ Penn is without a doubt some kind of fighting deity, but I definitely think Gray Maynard, Frankie Edgar and Jim Miller can beat him. However, they have to coordinate it so they all attacking him at once, i.e., Maynard comes in low, Edgar comes in high and Miller blasts him with a shotgun. Otherwise, they're doomed.

Happy New Year, MMALB readers!

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Talk to the Hand

Posted on September 20, 2009 by David Nelmark

The UFC has extended its agreement with Joe Hand Promotions allowing the company to continue serving as the exclusive commercial distributor of UFC pay-per-view events in the United States.

What does this mean to MMA fans?  Well, if you prefer to go out to your local drinking establishment to watch UFC events, you might find yourself facing a steeper cover charge than you are used to.
 
While a residential viewing of a UFC PPV typically costs $44.95 ($54.95 in HD) it costs much more for a bar to order the event.  Commercial establishments are charged based on their seating capacity.  For example, a restaurant that holds 150 people will pay around $1000 to show the broadcast.   Some places try to get around that fee by using an illegal "black box" to steal the signal or just by hooking up a dish and trying to get the event at the residential rate.  That's where Joe Hand comes in.
 
As explained in the court's opinion in Joe Hand Promotions, Inc. v. Easterling, 2009 WL 1767579, 2 (N.D.Ohio, 2009):
As part of its normal business operations, [Joe Hand] engages in anti-piracy activities designed at protecting the legitimate purchasers of the event. [Joe Hand] utilizes Agencies which hire auditors to visit non-subscribing establishments during the broadcast of the entire bout to determine whether any such establishments are illegally exhibiting the broadcast.
In other words, Joe Hand hires people to look for bars and restaurants that are broadcasting the UFC, but that have not paid Joe Hand for the right to do so.   Those folks go the bars, confirm that the broadcast is being shown, and write down details like whether prices are jacked up and how many people are there in attendance.  As the "exclusive distributor," Joe Hand then has the right to sue those establishments.  This practice helps Joe Hand recoup the licensing fees it pays to the UFC.  The causes of action in the lawsuits include 47 U.S.C. § 605 ("Unauthorized Publication of Use of Communications") and 47 U.S.C. § 553 ("Unauthorized Reception of Cable Service"). 
 
There is no requirement of "intent" with respect to these statutes.  Thus, even if a bar owner truly thought that their $44.95 gave them the right to show UFC 103 to patrons, he or she can still get dinged for statutory damages of up to $10,000.  If the bar owner was willfully violating the statute, the damages can go up to $100,000 and the owner can face criminal penalties. 
 
The risks of getting caught might seem small, but Joe Hand is actually quite vigilant about tracking down violators.  In the last 12 months in just the United States District Court for the Southern District of Iowa (my home district), Joe Hand has filed thirteen lawsuits against bars and restaurants that allegedly had unauthorized broadcasts. 

As Joe Hand himself noted in an interview with Bernard Fernandez of the Philadelphia Daily News (and yes, Joe Hand is a real guy... there is even  a Joe Hand, Junior) the UFC broadcasts are big business, bigger than boxing:

People ask, 'Do you think UFC will kill boxing? It already has. Boxing's dead.

Look, the next [Floyd] Mayweather fight [Sept. 19, against Juan Manuel Marquez] is the same night as UFC 103. Does that make any sense?

If you own a sports bar and you can buy a UFC event for $1,000, and you know you're going to pack the place, why would you buy the Mayweather fight for $2,200 and not do as well? 

My guess is that Joe Hand isn't having lunch with Bob Arum anytime soon. 

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Square Ring Sues UStream for Pay-Per-View Piracy

Posted on August 23, 2009 by David Nelmark

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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