Reports came out about a controversial UFC 249 waiver that relates to COVID-19. Only snippets of the document were initially made public, but it was revealed that the UFC can revoke fighter purses if they criticize the promotion’s health protocols. Follow up reports also noted that signees include not only fighters, but also all the event staff and media in attendance at UFC 249, and none of them can sue if they contract COVID-19.
Additional details from the document give a much better understanding on what exactly are the rights that have been waived, and which individuals are specifically affected and covered in the agreement.
“Participants” would include not just fighters, but anyone that “desires to attend, participate in and/or be paid for providing services or personnel” for the event. The terms and conditions of the agreement would cover not just the event itself, but also “all hospitality, lodging, travel and other accommodations arranged or provided by” the UFC as well as all “bouts, weigh-ins, interviews and/or any other events or activities” that are related to the event.
This “Event Participant Agreement” ensures that everyone involved in the event — including their families — cannot hold the promotion liable if any of them suffers from illness, disability or death “whether in connection with COVID-19 or otherwise.”
Apart from waiving their right to any legal claims, the document also includes a section about confidentiality and the previously discussed non-disparagement clause. With media also being asked to sign, the UFC theoretically made them waive the right to disclose information or speak out as well.
Interestingly enough, the document also asks signees to waive all those rights on behalf of their “spouse, domestic partner, children, parents, grandparents, step-parents, step-children.”
As for all of these holding up in court, well, it could be a different topic.
David Muraskin, a senior attorney at the legal advocacy group Public Justice, spoke to Bloomberg and called the waiver “pretty shocking.” According to the news site, he noted that “sections of the agreement may be legally unenforceable but would still have a chilling effect on people’s willingness to report risks.”
Highlighted below is a summary on each of the key clauses from the waiver, along with more analysis of the document provided by John Nash and Attorney Jason Cruz of MMA Payout.
Representations and Warranties of the Participant.
The agreement stipulates that the “Participant has not received any test result indicating that the Participant is a carrier of the rapidly spreading and extremely contagious COVID-19,” that they are “not experiencing any symptoms of COVID-19,” that they have “not knowingly been in contact with anyone who has (or who the Participant has any reason to believe may have) tested positive for or experienced symptoms,” and that “no person with whom the Participant expects to come into contact during the four weeks following the Event Date has or will have any underlying medical conditions or other issue that puts such person at greater risk.”
It makes sense to ask that people who have tested positive or are experiencing symptoms or have possibly come into contact with individuals that may have the virus and may have transmitted it them to not attend the event. The last part though, regarding contact with individuals after the event, raises a few questions. How would someone know who they might or might not come into contact with four weeks following the event date, or what kind of underlying medical conditions may be revealed to them?
As Jason Cruz observed “the language in Section 1(d) suggests that a Participant not come into contact with someone that may have contract COVID-19 four weeks post-event. This would be hard to enforce and hard to assess, considering that it would require the Participant to determine who may or may not have the virus. Notably, it does not suggest that the Participant “self-quarantine” post-event, although this part in the contract essentially infers this.”
The agreement specifically makes the signing Participants solely liable for the “costs of any and all medical treatment or disability and all other costs associated with the Symptoms, Harms, the Carrier Risk and all other harms, risks, dangers and injuries associated with COVID-19.”
While this obviously protects the promotion, it also does over some legal protections to Participants as well. Since it seems likely that the other fighters and corner persons at the event will have also signed the same waiver, the Participants would at least be sure they wouldn’t face actions from other Participants if they were found to have unwittingly transmitted the virus.
No Representations by the Company
“The Participant acknowledges and agrees that no representations or warranties of any kind whatsoever have been or will be made to the Participant by the Company ... including, but not limited to, regarding the testing of other participants, attendees and/or service providers or sanitizing protocols being used in connection with the Activities or the Accommodations. “
While Participants must agree to all testing and regulations in order to fight or work at the event, the UFC is apparently making no guarantee that everyone in attendance will have been tested.
Assumption of Risk.
“The Participant acknowledges and agrees that the Participant is responsible for maintaining health insurance and any other insurance policies necessary to cover any Harm that the Participant may suffer, or cause other people to suffer, in connection with COVID-19 and without limiting the foregoing, the Participant acknowledges and agrees that the Company will not provide the Participant with access to any health, medical or other insurance policies of the Company or any third party.”
It sounds from this that the UFC will not be paying for health insurance for anyone that may become COVID-19 positive as a result of attending the event.
“The Participant acknowledges and understands that the Company has not tested any of the participants, attendees, service providers and/or any other individuals who will be present at the Activities for antibodies or active infections associated with COVID-19.”
The UFC clearly states that they are not testing Participants. Since we know that they are, this is likely here to offer them legal protection and to make participants aware that there they should have no expectation that anyone will have been tested.
Liability Waiver & Release.
The agreement also includes a long section detailing how the neither the Participants nor anyone related to the Participants (include spouses, heirs, legal representatives, etc) can sue for “any injury, illness, damage, loss or harm” to any individuals property or their “death or disability, whether in connection with COVID-19 or otherwise, resulting or arising out of or in any way related to the Participant’s preparation for, travel for, participation and appearance in, provision of services at and/or attendance” at the event. Participants also “expressly waives any and all rights and benefits conferred by the provisions of Section 1542 of the California Civil Code.”
As Erik Magraken notes on his website Combat Sports Law, waivers often include “negligence” but UFC’s contract goes even further to specifically include any claims “based on negligence or gross negligence.”
Under Section 1542, a general release may not have the effect of releasing claims that are unknown to the releaser. By including a Section 1542 waiver, the general release is made ironclad for the UFC. In this case, the participants are waiving any right to sue for basically any reason, for the right to participate. Arguably every conceivable type of claim is covered here.
The waiver also includes a very thorough confidentially agreement, so that no outside parties (like Bloody Elbow, for example) are allowed to see terms of the agreement.
“Participant shall not disclose to any third party (other than Participant’s agents and professional advisors, in their capacity as such, on a need-to-know basis), any information with respect to the terms and provisions of this Agreement.”
Signees are also expected not to say anything disparaging about the event or anyone involved. Also they “will not suggest or communicate to any person or entity that the Activities have been or will be held without appropriate health, safety or other precautions, whether relating to COVID-19 or otherwise. If the Participant is a Fighter, the Participant hereby acknowledges and agrees that in the event that the Participant breaches this Paragraph 7, the Company may revoke all or any part of any prize monies or awards won by the Participant in connection with the Activities, including, but not limited to, purses, win bonuses, other fight-related bonuses and event-based merchandise royalties.”
If proper procedures are not taken during the event, such as Participants are not being tested or social distancing standards are being routinely ignored, it seems very doubtful we will learn this from anyone attending. Not only does the agreement forbid any voicing any such concerns, but if the person saying it is a fighter, they could incur a large financial penalty — basically everything they earned from their bout.
The end result of any clause like this is that it pretty much silences any whistleblower that might see something that they disagree with.
Choice of Law and Arbitration
The Agreement also makes sure that regardless of where the participant is from or where the event is held, any potential court involvement will take place on the UFC’s home court.
This Event Participation Agreement “shall be deemed to have been made at Las Vegas, Nevada” regardless of the where the event takes place. Any disputes or disagreements will also be “submitted to final and binding arbitration in Las Vegas, Nevada, administered by Judicial Arbitration & Mediation Services (“JAMS”).”
As Jason Cruz concludes, “the overall waiver essentially insulates Zuffa from liability, as it does with most of its contracts. However, this waiver is unusual, considering the unknown factors surrounding contracting COVID-19. Reading the language of the waiver, it suggests that the athletes cannot sue Zuffa, and that Zuffa is not responsible for paying for any costs if an athlete contracts COVID-19 during the event.”
UFC is rolling the dice hosting events during a pandemic. If anything goes wrong for anyone involved or their families though, the promotion will seemingly be protected, and the public is less likely to find out.
As Attorney Muraskin alluded to above, not every clause may actually be legally enforceable, but it could serve as a deterrent for the signees, who the promotion already holds a lot of leverage over.