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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DMX is a Rapper/Actor/Boxer/Defendant

Posted on November 27, 2009 by David Nelmark

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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TUF 10's Zak Jensen Sued for Wrongful Death

Posted on October 31, 2009 by David Nelmark

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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School Sued Over Impromptu MMA Matchups

Posted on October 21, 2009 by David Nelmark

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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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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