Attorneys for Wanderlei Silva have filed a motion to dismiss the UFC's lawsuit against the renowned MMA fighter with the Clark County, Nevada District Court on Friday, October 3, 2015. The motion claims that the UFC's suit is an attempt "to chill Silva's free speech" and "public participation" as well as send a message to other fighters, and that Silva comments about "cheating" and "fight-fixing" received additional credibility with Vitor Belfort's recently revealed lab results.
The UFC filed a complaint of "Intentional Misconduct" against Silva on July 29th for comments he had published on Facebook referring to "fight fixing" in the UFC and comparing the promotion to professional wrestling.
Silva's counsel, Terry A. Coffing of the firm Marquis Aurbach Coffing, argues that the complaint should be dismissed because it fails to show damages from his comments or prove his comments were false, and that the UFC's true motivation behind filing the suit is to silence his client.
"Before and after his retirement, Silva was one of the few who had the guts to publicly criticize the UFC's poor treatment of its fighters, including but not limited to showing them no respect, pressuring them into accepting fights when injured and unable to adequately train, and cheating by sweeping questionable use of performance enhancing drugs under the carpet. The UFC, in an act of retaliation and intimidation, filed this defamation lawsuit, attempting to chill Silva's free speech rights. Coincidentally, this lawsuit was filed just two months after a Nevada district court reversed the Nevada State Athletic Commission's arbitrary and capricious sanctions against Silva. Also, this lawsuit comes just one month after an antitrust class action lawsuit filed on behalf of UFC fighters was transferred to United States District Court, District of Nevada."
Coffing argues that Silva's comments can not be considered false or defamatory, citing Silva's own criticisms of the UFC's attempts to get him to fight injured and Deadspin's recent article on Vitor Belfort's UFC 152 lab results.
"In fact, Silva's "cheating" and "fight-fixing" statements were geared toward the now public evidence that the UFC allowed fighters who had failed drug tests to compete and the practice of pushing fighters to compete when injured an unable to properly train. It
1. Questionable Drug Tests.
It was recently reported on September 21, 2015, that in 2012 the UFC knew that Vitor Belfort had significantly high levels of testosterone, and it allowed Belfort to fight anyway."
This defense possibly opens the door for Silva's counsel to seek discovery on other Belfort test results or those of additional fighters.
According to Coffing the complaint fails to state a claim of defamation. "A claim of defamation per se primarily serves to protect the personal reputation of an individual." According to Coffing, since Silva did not name any individuals, but instead directed his comment towards Zuffa, the claim of defamation should be dismissed.
In addition, Coffing writes that Silva's statements are "absolutely privileged under the litigation privilege. The absolute litigation privilege extends to all statements made by litigants in anticipation of or during judicial proceedings."
Coffing argues that litigation privilege applies to Silva's statements because of his NSAC case and the class action lawsuit.
"The two Facebook posts at issue here were regarding the UFC's treatment of its fighters, including its lack of respect and cheating. Complaint, ¶¶ 20-21. These statements are directly connected with the drug testing and use of performance enhancing drugs at issue in the NSAC Case that was ongoing when the statements were made and is still ongoing. They are also directly connected with all of the wrongdoing alleged against the UFC® in the Class Action. Thus, the statements were made "in direct connection with an issue under consideration by a judicial body." NRS 41.637. "
The purpose of the absolute litigation privilege is to protect from liability for defamation those who are either engaged in or considering civil or criminal proceedings. If the court rules it extends to Silva because of his involvement or potential involvement with his NSAC suit or the Class Action Antitrust suit then it's unlikely the UFC could continue with their defamation complaint.
The motion also claims that Zuffa's motives for filing the lawsuit were not to protect themselves but to punish Silva and send a message to other fighters.
the timing of Zuffa's lawsuit demonstrates the intent and purpose of the lawsuit: (1) to silence SIlva and discourage him from participating in the NSAC Case and the Class Action, and 2) suing Silva as an example to threaten all MMA fighters and discourage them from speaking out against the UFC and participating in the Class Action.
It argues that the complaint should be dismissed under Nevada's Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes.
The UFC is using this lawsuit against Silva to say to the world of MMA fights that if they participate in the Class Action, they will be shut out of the world of professional MMA competition and be essentially - unemployed. These are the very retaliation and intimidation tactics the Class Action alleges have resulted in UFC's monopoly over the industry. And, these are the very type of intimidation and retaliation tactics the Anti-SLAPP statutes were created to address.
The comments that had triggered the UFC's suit were published by Silva on Facebook on July 22. Written in his native Portuguese the first was in reference to the release of cutman Jacob "Stitch" Duran by the UFC.
"They fired him. That's right. They fired ‘Stitch' for standing against this theft being perpetrated on the athletes. So I wonder, ‘why don't they fire me?' I already said I do not want to, nor will I work any more for to this promotion. And they won't dismiss me. That's what happens to those who speak the truth in this company; they're driven out. They have no respect for anyone. I've made it very clear to you all that I will never again fight for this promotion, the U.F. Circus. Fixed fights - and I can prove it! I haven't yet dropped the bomb. I haven't said everything I know!"
This was followed by a second Facebook post later that day.
"Either you do what they tell you, or you're fired. I won't give up until they free the athletes. This promoter is killing our sport. There are fighters going back to work to support their families because they can't live from the sport alone. They're very poorly paid. We are getting organized and soon I'll have news for my brothers in the ring. This will not stand! Some have tried to buy me, but I am not, nor have I ever been for sale. And I will fight to the end, to unmask these promoters, who are deceiving the public, cheating, and taking the dignity and the honor from our sport! This is turning a pro-wrestling show with fixed fights. We have to stop these guys because that's the end of the line for us!"
A few weeks later the UFC filed suit against Silva for publishing "false and defamatory statements" In their complaint the UFC wrote that they were seeking compensatory damages of $10,000, as well as punitive damages, attorney fees and interest.
The damage from Silva's statements is not limited to this country. The UFC organization is a global brand with a significant presence in many foreign countries. Chief among them is Brazil where the UFC has promoted numerous events throughout the country, has a local office in Sao Paulo, and is contracted with numerous Brazilian fighters. Silva is a native of Brazil. Accordingly, his comments in Portuguese (Brazil's native language) are particularly damaging in Brazil given the UFC's large pool of fighters and fan base located there.
Neither the UFC or their attorneys at Campbell & Williams have yet to officially respond to Silva's motion.