In early June, the class-action, antitrust lawsuit filed by current and former fighters against the UFC for monopolization in the MMA industry was transferred from Northern California to Nevada. This led Jon Fitch, one of the lead plaintiffs in the case, to tweet:
"So we go to hell to fight the devil in his hometown. It'll make for a better victory. " Said someone awesome. Off to War!!!— Jon Fitch (@jonfitchdotnet) June 3, 2015
The case is moving along in hell and the next milestone ruling will be on the UFC's fully-briefed motion to dismiss (also see the fighters' response). As of this writing, a hearing date has not yet been set.
The fighters are claiming the UFC monopolized the output and input markets in MMA using long-term exclusive contracts to lock them into the UFC in perpetuity and foreclose rival MMA promotions. They also claim the UFC restricts the ability of rival MMA promoters to obtain venues, sponsors and TV outlets in what's commonly referred to as the "monopoly broth" theory, but I've taken to calling it "The Carlos Newton" because it's slightly less nerdy and a lot more fun.
Before leaving NorCal, the fighters submitted 59 requests for the UFC to produce documents, potentially back to 1993. If you read the list and aren't an attorney, you'd probably want to pass out. John Nash gave us a taste of some of the requests and my tweets mention some more.
Once in Nevada, the UFC re-filed its motion to delay discovery until after the motion to dismiss has been decided. It argued that "voluminous" discovery is expensive and such discovery will either be unnecessary or narrowed down following resolution of the motion to dismiss:
"The discovery Plaintiffs have sought to date is extraordinarily burdensome and voluminous and encompasses nearly every aspect of the Defendant's business. Plaintiffs should not be permitted to subject Defendant and potentially third-parties to wideranging, costly and burdensome discovery unless and until the Court determines that Plaintiffs' Complaints can survive a motion to dismiss. Even if the Complaints survive in whole or in part, the Court's evaluation of the hodgepodge of allegations in the Complaints will undoubtedly be useful in limiting and guiding any discovery that does take place."
Weeks later, the fighters filed their opposition to the UFC's motion to delay discovery, taking the position that a delay is unwarranted since the UFC's motion to dismiss is "highly unlikely to succeed and discovery is required to resolve the factual issues that the UFC raises."
A clear theme in the fighters' filing dealt with "...the impropriety of slicing and dicing the alleged scheme into its constituent parts, and then disputing the facts of each part." In other words, The Carlos Newton. The UFC wants its conduct towards fighters, venues, sponsors and TV outlets analyzed separately for anticompetitive effects, whereas the fighters want all conduct analyzed together as a whole.
This could eventually be an important part of the case and the reason is due to the way antitrust works. While the UFC's contracts might look bad to the average fan, their look is not being litigated. The antitrust story is that they are being used as a weapon to foreclose rival MMA promoters. Think of antitrust stories as jigsaw puzzles. Every piece must reasonably fit for the puzzle to be solved. If a single piece is missing, the puzzle is incomplete.
It's not always crystal clear if a puzzle piece is missing, so the two sides argue and bring in expert witnesses. I've previously written that the foreclosure claims regarding fighter contracts might have an important puzzle piece missing: the long-term nature of the contracts. Fighters will eventually need to show that the typical duration of their contracts is longer than what I ad hoc estimated and closer to "in perpetuity." If that happens, they could be onto something with their puzzle pieces.
The foreclosure claims towards venues and TV outlets are almost surely missing many pieces. This could explain why the fighters' attorneys are pressing hard for the UFC's conduct to be examined as a whole via The Carlos Newton. They'll have a better chance of presenting an arguably-complete antitrust puzzle and keeping the judge from dismissing or narrowing down their case if all four areas are examined as a whole.
The UFC submitted its final brief on the motion to delay discovery two days ago. As expected, it called the fighters' "scattershot blast" weak and its motion to dismiss strong. It attacked the fighters' use of The Carlos Newton, citing prior case law stating, "...a ‘monopoly broth' theory of liability ‘does not allow for clearly legal acts to be thrown into the mix to bolster a plaintiff's antitrust case.'"
But the fighters have their own case law. "In the antitrust context, the ‘character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.'" Case law battle!
These opposing positions will eventually require a ruling. Over the next few months, we may get a peek as to what the ruling will be. A hearing on the UFC's motion to delay discovery will take place on July 28 and a hearing on their motion to dismiss the case should soon be put on the schedule and follow.
When Judge Boulware hands down his ruling on the first motion, we might get a "preliminary peek" of his views on the motion to dismiss. This peek is not supposed to prejudge the outcome of his ruling, but last I checked Judge Boulware is a human being and we've been known to sometimes leave clues about our behavior.
Next will come the motion to dismiss where the case will either proceed in its entirety, be dismissed in its entirety or be narrowed down and possibly amended.
Who are the fighters interested in deposing?
Since moving to Nevada, we've also gotten a peek at the fighters' initial disclosures, revealing the list of outside parties likely to have discoverable information. If and when the discovery process commences, it's possible any of these people could find themselves under oath, on tape in a deposition room. The list includes fellow MMA and boxing promoters, managers, former UFC fighters, almost UFC fighters, as well as Mark Cuban (of Randy Couture fame):
Scott Coker, Rich Chou, Bjorn Rebney, Frank Shamrock, Mike Afromowitz, Fedor Emelianenko, Oscar De la Hoya, Pride executives, Randy Couture, Mark Cuban, Ed Soares, Jeff Aronson, Lex McMahon, Shannon Knapp, Julie Kedzie, Ray Sefo, Ali Abdel-Aziz, Kevin Kay, Ben Askren, Bob Arum, Lou Dibella, Ken Hershman, Bob Meyrowitz, Monte Cox, Rose Gracie, Terry Trebilcock, Vadim Finkelchtein, Turi Altavilla and more.
Here's the list of current and former UFC employees who made the cut:
Dana White, Lorenzo J. Fertitta, Frank J. Fertitta, Peter Dropick, Jackie Poriadjian, Craig Borsari, Ike Lawrence Epstein, Kirk Hendrick, Ken Berger, John Mulkey, Joseph Silva, Sean Shelby, Edward Muncey, Marc Ratner, Michael Mersch, Tracy Long, Sonja McKinney, Reed Harris, David Safer, Mike Mossholder, Link McCluan, Shanda Maloney, Michael Pine, Steven Gray, Ryan Richeal, Doug Hartling, Marshall Zelaznik, Joe Carr, Garry Cook, David Allen, Michael Britt
The list looks to cover more of the UFC operations side as Rogan, Goldie, Anik, Florian, Stann and others on the broadcast side were excluded.
Correction: The July 28 hearing on the motion to delay discovery will be held in front of U.S. Magistrate Judge Peggy A. Leen, not Judge Richard Boulware.
Paul is Bloody Elbow's analytics writer and former provider of expert witness support in antitrust cases. Follow him @MMAanalytics.