Agent seeks to form UFC union
Sports agent Jeff Borris of the Ballengee Group is spearheading a campaign to organize UFC fighters to start a union. Borris believes that UFC fighters (who are characterized as independent contractors) are fearful of the UFC and that is the primary reason that they have not organized in the past. Borris, who has represented Barry Bonds, Rickey Henderson and Jose Canseco, believes that fighters should be receiving more of the share of the reported revenues that the company receives. The launch of the Professional Fighters Association (“PFA”) occurred in early August and Borris has been on a media tour discussing the goals and purpose of the PFA.
The Ballengee Group represents UFC fighters Nick and Nate Diaz. It was a review of Nate’s contract against Conor McGregor prior to their first bout in March that brought the issues fighters face to light for Borris.
According to the PFA website, athletes are receiving just 15 percent of the total revenues that the company is making. In comparison, players in other organized sports are receiving closer to a 50/50 split in the total revenues. Of course, those sports have organized player’s unions that collectively bargain for the rights of players.
Among the issues that Borris would like to see changed are higher wages, a collectively bargained drug testing policy, and a pension for when a fighter retires.
The path to organization has many hurdles. Organizing the fighters will need at least 30% of the contracted fighters (over 600 fighters at this point) to sign membership cards with the intent of forming a union. Once the individuals are identified and verified, the National Labor Relations Board (“NLRB”) would conduct an election to determine whether the fighters want a union and 50% of the fighters would need to vote for a union in order for it to be approved. Also, with the international nature of the UFC, explaining the pros and cons of a union to a diverse set of fighters will be challenging.
While the PFA has made a buzz with its announcement and media campaign, the MMA Fighters Association (MMAFA) is also seeking to organize fighters. MMAFA wants an association (instead of a union) for all professional MMA fighters (not just those within the UFC). Rob Maysey, an Arizona-based attorney is the founder of MMAFA. His law firm is one of several representing plaintiffs in the current antitrust lawsuit against the UFC. MMAFA is taking issue with PFA’s motives at this point and its clear we have opposite views of how to organize fighters for the overall goal of ensuring that they receive better benefits and are financially taken care of by the organizations.
In addition, the UFC opposes unionization, creating more roadblocks. In July, the UFC was sold for a reported $4 billion to an investment group led by William Morris Endeavor and IMG. Ari Emmanuel and Patrick Whitesell will takeover the reins from Lorenzo and Frank Fertitta. What will remain the same is Dana White who will stay on with the company in his current capacity as the face of the UFC. Thus far, the new owners maintain the same position as the old ones on the issue of a fighter’s union.
Brock Lesnar Temporarily Suspended
The Nevada State Athletic Commission (NSAC) temporarily suspended former UFC Champion Brock Lesnar after he failed two drug tests in connection with his return to UFC 200 this summer. The temporary suspension will continue on until the NSAC can hold a formal hearing. To date, the formal hearing has not been scheduled. Lesnar could face up to a two-year suspension as a first time offender and could be forced to give back some or all of his earnings from UFC 200. In addition to the NSAC hearing, Lesnar could face discipline under the UFC’s drug policy, which is administered by the Unites States Anti-Doping Agency.
Boxing Heavyweights class over cancelled bout, money in court
In the world of boxing, an intriguing lawsuit was filed in the Southern District of New York in June. Heavyweight boxer Deontay Wilder filed a breach of contract action against an opponent he was scheduled to fight in Russia on May 21, 2016, Alexander Povetikin. In turn, Povetkin and his promoter sued Wilder for breach of contract and defamation.
Povetkin’s promoter had won a “purse bid” and therefore determined that the fight should take place in Povetkin’s home country of Russia. The payouts to the fighters, a total of $7.15 million according to court documents, was placed in an escrow account. The winner of the fight would receive 10% of the amount of the bid ($715K) with the remainder being split 70-30 in Wilder’s favor. The $7.15 million would also cover a 3% sanctioning fee administered by the World Boxing Council.
Wilder believed that Povetkin was using performance enhancing drugs (PEDs) during his training camp leading up to the fight. A drug test administered on April 27, 2016 revealed that Povetkin tested positive for Meldonium.
The WBC issued a ruling that the fight would not take place as scheduled due to Povetkin’s positive sample. Wilder’s representatives advised the escrow holder that no funds should be disbursed until a “joint instruction from the parties or a non-appealable order from a court of competent jurisdiction” renders a decision.
Povetkin’s side dismissed the positive test for Meldonium but took issue with Wilder making claims that the bout was cancelled due to Povetkin’s PED use. They also claimed that Wilder breached the contract by returning home and thus forced WBC to cancel the bout. Povetkin argues that it was not the failed test, but Wilder’s refusal to come to Russia (Wilder was training in England the days leading up to the fight) as the reason that the bout did not go forward.
Notably, the contract included a clause that rendered liquidated damages in the amount of $2.5 million for a breach. Povetkin claims that Wilder committed a breach of the contract by forcing the escrow holder to withhold the funds and was entitled to the $2.5 million in liquidated damages. As for the defamation claims, Povetkin cites Wilder side as defaming him for the claim that he tested positive for Meldonium. Povetkin states Wilder called him out on “cheating.”
On August 17th, the WBC permitted Povetkin to return to the ring with the proviso that he submits to mandatory drug testing for which the Russian boxer must pay out of his own pocket. According to a statement from the WBC regarding Povetkin’s reinstatement:
Meldonium is supposed to work through its ability to increase the size of blood vessels and therefore improve blood flow. But there is also controversial data and ongoing debate among scientists and the medical community as to whether Meldonium intake indeed produces performance-enhancing benefits during athletic competition.
Wilder’s attorneys claim that the comments made to the press were pure opinion whereas Povetkin’s attorneys argue that it was an assertion of fact. Furthermore, in a letter to the court, Povetkin’s attorneys state that calling an athlete a “cheater” and a “liar” is actionable and is not opinion. They cite McNamee v. Clemens in which Roger Clemens’ former trainer sued the former baseball star for accusing him of being a liar.
Wilder is seeking to dismiss Povetkin’s Complaint. However, Wilder’s attorney did not request a “Pre-Motion Conference,” a requisite according to the rules of the trial judge in New York. This set off the parties in the time-honored tradition of letters by lawyers to the court with Povetkin’s attorneys jumping on Wilder’s side for not following the rules.
For its part, Wilder has now formally asked the court for the conference despite Povetkin’s claims that they are waiving that protocol. The latest correspondence to the court, dated August 25, 2016, is from Wilder’s counsel formally requesting for the conference. In the letter, Wilder’s counsel claims that Povetkin’s attorneys have misread the Escrow Agreement and by filing a lawsuit for Breach of Contract regarding the Escrow Agreement they have violated the implied covenant of good faith and fair dealing.
At this time, the trial court has yet to rule on whether a Motion to Dismiss will be heard.