By Zach Arnold | May 31, 2016
Nothing sabotages trust faster than when a promoter tries to pull a fast one on administrators for an athletic commission.
Nevada went ballistic over Roy Englebrecht filling out a fighter application for boxer Zab Judah allegedly without identifying that he owed back child support of $275,000. Nevada threw the book at Roy and ended up with a compromise punishment of an 18 month suspension for perjury. This was important to note because perjury is considered an act of moral turpitude, which is often enough to kill your chances for holding onto a professional license for serving alcohol, doctor services, attorney services, and so on. California’s Department of Consumer Affairs, which oversees the state Athletic Commission, is notorious for hammering licensees over acts of moral turpitude.
The on-the-record response we received last Friday from Athletic Commission Executive Officer Andy Foster on whether or not he would honor Nevada’s suspension of Roy Englebrecht was interesting.
“I don’t have any comment at this time. We are still looking into this.”
There’s really not much to look into. Englebrecht admitted to providing false and misleading information to Nevada’s Athletic Commission. Nevada’s commission suspended him. The ball is in California’s court to administratively suspend Englebrecht’s license and to put him in front of the commission board for suspension or revocation.
Instead, none of that appears to be the case. Englebrecht has a show scheduled for next week and staffers working on behalf of the Athletic Commission are getting their work assignments for the event. It appears California will not honor Nevada’s suspension, which will stir up a real political hornet’s nest. Money talks. The political fallout between California and Nevada will intensify.
This development, juxtaposed to last week’s court allegations in a wrongful termination lawsuit about Bellator fighters supposedly submitting medical records to California’s athletic commission from an unlicensed doctor, raises serious questions in regards to how soft the authorities are against California-based promoters and managers.
In the legal complaint filed against Bellator, there was something largely overlooked in media circles about Zach Light’s claim of invalid fighter medical records being submitted in California.
About those supposed medical records from an allegedly unlicensed doctor…
Page 6 of Light’s complaint claims that “a number of fighters” on the Bellator 131 November 2014 San Diego fight card submitted medical records to the California State Athletic Commission by a supposedly unlicensed physician named Adam Rendon.
What’s more interesting to note is this paragraph from the complaint:
Prior to the Bellator 131 event, plaintiff told Coker that fighters had been suspended for using Rendon to sign their medicals because Rendon was not a licensed physician. Coker told plaintiff, “a lot of people at Bellator are going to lose their jobs next week. Do you want to keep yours?” Coker added, “then stay in your lane and stop making waves!” Fearful of losing his job, plaintiff said nothing further regarding the falsified medical reports.
The complaint admits that the California State Athletic Commission supposedly had suspended the fighters in question who submitted records from unlicensed physician Adam Rendon. The Athletic Commission did its job.
So why are we only hearing about this now? Why didn’t the Athletic Commission haul officials from Bellator to an athletic commission meeting for a public discussion about what had happened? What kind of fact-finding mission was there, if any?
The obvious concern is that the Athletic Commission cannot always detect falsified records. Even the sharpest executives, like Bob Bennett in Nevada, have to be on a constant state of alert.
The claims of Bellator fighters getting busted for invalid medical records in combination with California’s commission refusal (so far) to enforce Nevada’s suspension of Roy Englebrecht for perjury is alarming. This is the kind of activity that gets administrators fired. It’s also the kind of activity that attacks the heart of regulating the health and safety of a legally-classified ultrahazardous business. There is no reason for Sacramento to continue its soft stance on violators who attack this core regulatory principle. It directly questions the credibility of the individuals involved. What else is out there that we don’t know about?
Zach Light’s Wrongful Termination lawsuit against Bellator & Viacom
We posted the searchable text of former Bellator employee Zach Light’s wrongful termination in the name of public policy lawsuit against Bellator & Viacom. Light’s attorney is William Crosby, who has 45 years of experience in labor & employment issues. The complaint cites a single cause of action: Wrongful Termination in the name of Public Policy. The elements for this cause of action are: 1) plaintiff employed by defendant 2) was fired by the defendant 3) because the defendant was substantially motivated by plaintiff’s refusal to violate public policy 4) and the plaintiff was harmed by the firing.
It’s a catch-all cause of action allowing for Light’s attorney to obtain general, economic, and punitive damages.
For Light’s attorney, he probably picked the most useful tool in his toolbox. Rather than cite multiple causes of action and create more work for himself, he narrowly tailored the legal complaint and the path for surviving both a demurrer and summary judgment by limiting what has to be proven. It’s smart.
But that doesn’t mean that there are a lot of questions that should be raised by this complaint, both in terms of (lack of) evidence and lack of certain causes of action being cited.
State vs. Federal labor laws at play
Zach Light’s lawsuit against Bellator is in Los Angeles Superior Court. A state court, meaning state laws apply. If they wanted to file a lawsuit based on Federal statutes and causes of action in combination with alleged violation of California labor laws, they would have had pendent jurisdiction to file the complaint in Federal Court. They did not.
I note this for your attention because the legal complaint unusually cites Sarbanes-Oxley, which is often used for whistleblowing and fraud. The complaint name-drops SOX in its proposed facts but not as a cause of action. SOX protects employees cooperating in an active investigation against a company. The proposed facts in the complaint do not cite any sort of investigation that Light cooperated with.
The complaint does not cite any Federal civil rights causes of actions (42 U.S.C. 1983) for whistleblowing, either.
Additionally, the legal complaint does not cite retaliation as a cause of action. The elements for that cause of action are: 1) plaintiff 2) was fired or constructively discharged 3) while engaged in protected activity (e.g. whistleblowing) 4) with the protected activity as a substantial reason in the firing 5) which caused substantial harm.
It’s important to point this out because Light’s legal complaint claims inaction, not direct retaliation, on his whistleblowing claims against Scott Coker, Rich Chou, and Bellator. He is only claiming that the company’s retaliation was the wrongful termination itself. The complaint cites multiple claims of threats of retaliation but not claims of direct acts of retaliation.
Why does any of this matter? It matters because California has some of the strongest labor laws in the United States. The state’s Labor Code provides protections against employees for whistleblowing and retaliation. It specifies that companies cannot have formal or constructive policies punishing whistleblowers. Section 1102. There are two important sections from the Labor Code to highlight:
1102.5 (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
(f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.
The importance of this statute is that whistleblower protections apply to California employees not only if they externally report concerns to authorities but also internally if they report concerns to higher-ups on the food chain. In Zach Light’s legal complaint, he claims he raised several issues to both Scott Coker and Rich Chou (collusion, interference with contractual relations, allowing employee on suspended driver’s license to drive company vehicle) and they didn’t act upon his concerns.
Section 1102.6 provides a major incentive for attorneys bringing retaliation & whistleblower suits against employers: burden-shifting.
1102.6. In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.
This is huge in a civil case. If the plaintiff can demonstrate enough evidence by a preponderance, the liability shifts to the defendant to prove their innocence by a much higher clear and convincing standard.
Light’s complaint currently claims inaction, not retaliation, when he voiced public policy concerns to Bellator management. If his complaint can 1) survive the demurrer and 2) produce written or oral evidence (via discovery/deposition) about a supposed scheme or policy for retaliation, the legal complaint could be amended to include Labor Code section 1102.5.
There’s just one requirement… In order to entertain the thought of citing the state’s Labor code statute, Light would have to prove to the court that he had filed a complaint with the state’s Labor Commissioner within six months of his termination (Labor Code 98.7). If he failed to file such a complaint, then any civil action citing Labor Code 1102 would be automatically dismissed due to failure in exhausting administrative remedies. (Translation: Not filing a complaint with the state before filing a lawsuit.) The case law reaffirming this legal principle is MacDonald vs. State of California (August 27, 2013).
Wrongful Termination in the name of Public Policy is considered a non-statutory cause of action. Because it’s non-statutory, it means Light didn’t have to exhaust administrative remedies in order to file his lawsuit. That’s why there is only one cause of action in his legal complaint against Bellator & Viacom.