By Zach Arnold | September 30, 2015
Writer Jason Floyd dropped this proverbial turd in the punch bowl regarding a clause UFC fighters are being asked to sign regarding USADA drug testing:
ARTICLE 22: WAIVER AND RELEASE
As a condition of participating in or preparing for a Bout or working with an Athlete who is participating in or preparing for a Bout, Athles, Athlete Support Personnel and other Persons agree to release and hold harmless UFC, USADA and their designees from any claim, demand or cause of action, known or unknown, now or hereafter arising, including attorney’s fees, resulting from acts or omissions which occurred in good faith.
First, the key phrase here is good faith. It’s nebulous and extremely hard to combat in a protracted lawsuit should any fighter sue them over a mishap.
Second, this waiver could easily raise the issue of unconscionability. In other words, it’s such a one-sided adhesive agreement in which an entity with all the leverage in negotiating is pressuring fighters to give up even more constitutional rights in order to continue employment while under contract with UFC. You have the right to sue in America. You have the right to send a demand letter. Nevada’s anti-SLAPP law is on the books to enforce protection of these rights.
Lots of people sign contracts every day giving up constitutional rights as part of settlement agreements. However, signing such agreements as a condition of continued employment or else face a possible ice-out in labor participation as an “indepedent contractor” is arguably excessive.
Which brings us to two legal defeats in the past week for UFC in Las Vegas Federal court:
1) Their motion to dismiss the anti-trust lawsuit filed by Cung Le, Nate Quarry, and others was denied. Read Paul Gift’s remarkable article at Bloody Elbow detailing last Friday’s court hearing.
2) Discovery is beginning and the plaintiffs will get access to an assortment of business contracts. How much of this information will be kept under seal by the judge and how much will be made available to the press?
We’ve seen dribs and drabs over the years in various legal cases, such as the Eddie Alvarez/Bellator debacle, about what UFC contracts supposedly look like. Thanks to the efforts of Rob Maysey, we’re about to see a whole lot more and the fighters are going to get an opportunity to see some real details on UFC’s business model.
It is always amazing to see how hyper-aggressive UFC is legally in protecting their business model (e.g. making members at their gyms wear UFC-branded gis over other branded gis) and pro-actively preventing any future legal challenges. But once they actually do get challenged in court, they aren’t teflon. Their crack legal team in New York has now formulated a strategy of… gasp… trying to establish damages from NY’s MMA ban by booking Madison Square Garden in April and seeking an injunction. As Jonathan Snowden adroitly notes, UFC knows that MMA is illegal in New York and that booking MSG is a self-imposed injury. But the flipside here is that UFC drew the same judge for this new injunctive hearing as they did for their original lawsuit against New York state.