Dave Herman Trapped in Legal Limbo With Bellator

If you're like me you've probably been wondering where promising young heavyweight Dave Herman has been since EliteXC collapsed. Maybe you even vaguely remembered something about him signing a contract with Bellator a dog's age ago. Then he popped up beating on Don Frye in Texas. Then there was a rumor about being DQ'd in a bout with Sokoudjou. Then silence.

Loretta Hunt reported earlier this week and brought some light to the situation, Herman's in legal limbo:

Though he signed his name to the contract 21 months ago, as it now stands, Dave Herman will be conspicuously absent from the Bellator Fighting Championships season three heavyweight tournament that kicks off Aug. 12 in Hollywood, Fla.

Bellator attorney Patrick English confirmed to Sherdog.com on Tuesday that Herman will not be taking the eighth and final slot in the field, as the fighter and promotion are embroiled in ongoing litigation.

Herman, 25, is suing Bellator Fighting Championships for allegedly breaching a six-fight, 30-month contract he signed into with the promotion on Oct. 28, 2008. Herman is also claiming tortuous interference on the part of Bellator for a handful of fight assignments -- including a four-fight contract offer from Strikeforce -- he's tried to secure since January. The promotion is countersuing for alleged breach of contract as well.

You'll have to read Hunt's whole piece to get all the details of the legal back and forth. My quick and dirty summary, plus outside legal opinions and my commentary follows in the full entry:

Timeline:

• October 10, 2008 -- Herman fights on the last ever Pro Elite ShoXC card notching a win against Kerry "Meat Truck" Shall. 
• Late 2008 -- Herman signs with Bellator is promised two fights by November 2009. Herman alleges that he informed Bellator of his already signed upcoming Sengoku bout. He receives a $12,000 signing bonus. 
• January 4, 2009 -- A visibly gassed Herman gets TKO'd by Mu Bae Choi at Sengoku No Ran 2009.
• Early 2009 -  Herman's camp is allegedly told that Bellator CEO Bjorn Rebney will sue to get Herman's signing bonus back.
• May 1, 2009 -- Herman beats Josh Barnes by TKO at Bellator 5. Bjorn Rebney is "not impressed".
• September 12, 2009 -- Herman fights Don Frye for Shark Fights, claims to have Bellator's permission. 
• November 2, 2009 -- Herman notifies Bellator in writing that they are in breach of contract for not providing a second fight in 2009. 
• November 7, 2009 -- Herman beats Jim York in Sengoku in Japan. 
• December 18, 2009 -- Herman notifies Bellator that they are in breach of contract. Bellator responds that Herman did not allow them the 45 day "cure" period specified in the contract to rectify the situation.
• March 2010 -- Herman files suit against Bellator, alleging tortuous interference by the promotion in interfering with his attempts to accept offers from Strikeforce, Shine Fights and other U.S. promotions. 
• A New Jersey judge denies Hermans request for an injunction against Bellator. Trial is expected in January 2011.

Here's a little more from Hunt's piece that brings us up to today:

On Monday, Bellator offered Herman a single bout that English said would have "no baring" on the legal proceedings or require Herman to waive anything. Herman, who said he's continued to train in anticipation of any fight, was skeptical of the offer, but was willing to hear the details.

 

"I'm ready to go now, but the best offer they've given me is to go back to the original offer," said Herman. "I have attorney's fees and they'd have to at least pick those up. I'm willing to talk and I've made that clear to them. I'd be happy to fight for them, but they have to make things right."

Herman estimates he's already spent $30,000-$50,000 out of pocket on legal fees and that other promotions are afraid to make him offers for fear of litigation from Bellator. Shark Fights' Medley said he expressed interest in booking Herman in an undercard bout at Shark Fights 13 on Sept. 11 in Amarillo, Texas, but felt he couldn't make an offer because of Herman's current legal situation.

Here's some commentary from "Fight Lawyer" Justin Klein:

...the fact that Herman waited almost exactly 45-days (by my count, 46-days), i.e. from November 2, 2009 - December 18, 2009, to advise Bellator that the contract was terminated suggests that Herman understood that he had to provide a 45-day window to cure before he had the right to declare the contract terminated.

Nonetheless, allegedly without written permission and allegedly in breach of the contract, Herman took the fight in Japan before the expiration of the cure period.

While Herman claims that Bellator didn't provide a fight in the 45-day period after his November 2, letter (and so Bellator didn't exercise its right to cure), that would not excuse any alleged breach by him that pre-dated the expiration of the cure period. In fact, it may actually excuse Bellator's breach because it could arguably justify its failure to provide a fight in the 45-day window.

It will be interesting to see how this plays out, but the article states that the judge already denied Herman's motion for an injunction, which is not a great sign for Herman.

Klein may very well be right and frankly I expect Bellator to crush Herman in court. Herman made a number of mistakes here, but the biggest one was probably going to Japan to fight Mu Bae Choi in less than top condition and losing, thereby damaging his perceived value. 

From there it sounds to me like typical fighter-promotion miscommunication with a big helping of Bellator CEO Bjorn Rebney jacking Herman around for losing the Choi fight and no longer being a hot undefeated heavyweight. 

The real tragedy here is that more than a year of Herman's athletic prime has already been wasted and it looks like he won't be free to move on and fight elsewhere in 2011 either. 

Is the moral of the story that young fighters should beware of Bellator?

Not exactly, but it does make it clear that fighters should be very careful about entering into binding contracts, particularly when they've already got signed fights whose outcomes may impact the course of the subsequent contract. 

Fighters should also be very very very careful to cross every t and dot every i when attempting to terminate a contract. If Herman had simply waited out the 45 day cure period to terminate his Bellator contract BEFORE accepting another fight outside the promotion, he would quite possibly be free and clear. While I'm sure he badly needed the money, it appears in retrospect to be a penny wise, pound foolish decision.

The larger picture issue is this: with MMA in the U.S. rapidly consolidating into a monopoly at the top levels, most major regional promotions dying on the vine and only Strikeforce and Bellator existing as a second-tier underneath the UFC, fighters have very limited options to build their careers.

They can attempt to jump into the UFC shark tank early for very low pay but for every Jon Jones, there are 15 Chase Gormleys. 

Or they can sign with Strikeforce or Bellator and find themselves locked into contracts that are very nearly as restrictive as the UFC's but with fewer guaranteed fights and a very real possibility of being locked into a binding champion's clause should everything go right and they win all their fights. 

Fighters like Nick Diaz, Gilbert Melendez, Eddie Alvarez and Hector Lombard are in a honey pot trap. They've got decently lucrative contracts as champions with Strikeforce or Bellator, but their upside options are very very limited. They can't take the next logical step up to the UFC unless they lose their title, but if they lose their title, the UFC won't want them back.

This is no way to organize a sport. The fighters and fans are the ones losing out as the smaller promoters imitate Dana White's hardball style.