Mixed Martial Law

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Mixed Martial Law

03/11/2020

 

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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture all while thinking like a lawyer, here on Legal Talk Network.

 

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Joe Patrice: Hello! Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law, and today we are going to talk a little bit about Mixed Martial Arts, the sort of thing that you always expect to hear when you tune into your legal podcasts. But, my guest, who’s been on the show before is Jason Cruz and he has a new book about MMA, but before we get into any of that, welcome back to the show.

 

Jason Cruz: Well, it’s great to be back here, Joe. Thank you so much.

 

Joe Patrice: Absolutely, and so before we start talking about what we are really talking about, you are coming to us live from Seattle.

 

Jason Cruz: Live from Seattle, yes, correct.

 

Joe Patrice: So how are things going over there?

 

Jason Cruz: It would be great if everyone could send their hand-sanitizers and toilet paper up to Seattle, it would be great. No, actually it is a little concerning to be honest with you. It’s not a good time, if you remember the Dustin Hoffman movie ‘Outbreak’. It’s not one of those times to rent that movie. People are very concerned here. One of the things that I alluded to is that the stores here are starting to run out of things, such as toilet paper, hand-sanitizers, Purell, Zicam, Tylenol, things like that. It’s a little concerning.

 

I actually was in Portland yesterday for work and I was down there and they are out of hand-sanitizers as well. There is definitely concern about the corona virus.

 

Joe Patrice: What’s the value of having Amazon right there, if you can’t get anything?

 

Jason Cruz: I don’t know. I don’t know. Well, I mean, they did have a worker come up positive for the corona virus, so a lot of the people are working from home. I guess that’s one advantage of the amenity of remote working, is that everybody can just stay at home.

 

Joe Patrice: No, I actually right before we started recording, I got a tip that UDub was going to start closing about this, so it’s — people are taking precautions there. Now, meanwhile, here in New York we have only had — we’ve had a few lawyers contracted and that has resulted in some precautions. We have got law firms cancelling travel and law school closing too because of somebody’s contact, closing for a few days, but we haven’t gotten anything nearly as extreme as what’s going on in Seattle yet.

 

Jason Cruz: Yeah, hopefully nowhere else. I mean, it’s a little concerning, as of today I believe there are 70 cases confirmed in Seattle, and like you said, the University of Washington is coming up with their own test kits which might bring up the number, but let’s hope not.

 

Joe Patrice: Yeah, well, hopefully everything is going to turn out, stay home, keep working from home. That’s probably your best bet.

 

Jason Cruz: Yes, everyone stay home and wash your hands, wash their hands.

 

Joe Patrice: Right. Well, and that’s what we have been doing here. I have never seen New Yorkers being as diligently in line for the — I mean, normally you are in line for a few minutes and then you realize that it’s going to take forever and people give up, and that is not happening. So that’s a good sign for New Yorkers.

 

Jason Cruz: I would suspect.

 

Joe Patrice: Normally there is more of a wash them quick and then just shake them and run sort of thing that I see in bathrooms and I am — thankfully people are doing the right thing. So —

 

Jason Cruz: Yes, it should always be a practice.

 

Joe Patrice: Yeah, exactly right, but here we are. So anyway, well, before we get going, let’s take a quick break to acknowledge our sponsor.

 

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Jason, you have not been necessarily on these shows. I have been changing the animal and the pun and the ad read every time and I am starting to get to a point where we are really stretched for new pets for me to do. So last week I was dared to do alpaca, which I was not prepared for and so I had to come up with something really on the fly here. I don’t know if it’s my best work, but you know, it made some sense.

 

(00:05:01)

 

Jason Cruz: Yeah, I have been doing alpaca farm before but very little —

 

Joe Patrice: Okay. Oh, see I should’ve talked to you about this first and I might have come up with a better pun for it, but, oh well.

 

Jason Cruz: That’s okay.

 

Joe Patrice: Yeah. So, Jason Cruz, obviously in Seattle we’ve talked before in a previous episode, which you can go back and listen to, I believe we titled it, ‘Step Inside The Octagon’ or something like that where we were talking about the period when Conor McGregor was throwing beer cans at people.

 

Now though, Jason, you have a new book out, ‘Mixed Martial Arts and the Law’, which covers a lot of the issues legally that have risen around this new sport that, I mean — new sports don’t come along all that often even though obviously martial arts is very old. The whole concept of the MMA just came out of nowhere. I mean, this is something that when I was a kid just wasn’t on TV.

 

Jason Cruz: Yeah, it evolved right in front of us and then I think with the expansion of what sport is, and the need for television content is just dramatically increased and I mean, this year alone, actually in 2019, it’s grown exponentially with the new ESPN deal that the UFC has forged so you see highlights of MMA on SportsCenter, more mainstream things and it’s become just a part of the fabric of sports. Something that you don’t, it’s not an oddity anymore.

 

Joe Patrice: Yeah, well, speaking of how it’s come out of nowhere and that UFC deal one of the subject matter and your book goes through just basically every chapter is a different subject matter of the legal troubles that, or not troubles but legal wrinkles that the sport has and is dealing with. So you bring up the UFC, one area that you raise in the book is antitrust and the issues going on with — I mean, there is a UFC and we all know what that is, and that’s the big one.

 

Jason Cruz: Most definitely and it’s one of those things where the case is ongoing in Las Vegas, at federal court, before Judge Richard Boulware and it was filed in 2014, here we are in 2020 and they are still contemplating whether the fighters deserve class action status, and that’s the point of the case where we are at.

 

Obviously, the UFC is seeking to dismiss the case and deny class action status whereas the plaintiffs, if the Judge were to grant class action status, they would represent almost over a thousand current and former UFC fighters.

 

Joe Patrice: Yeah and these fighters, they are challenging the UFC from antitrust levels. So it’s not like the typical antitrust complaint when we think of like the NFL and USFL is some sort of a rival league going after them and that’s not what’s happening here.

 

Jason Cruz: No, that’s correct. There is actually the plaintiffs had two theories from the outside. The first was from this perspective of monopsony anti-monopoly. So basically they had control over the market — marketplace and also the market, so basically what was going on is they had locked in all of the fighters to exclusive long-term deals and bought up all the rivals, so there were no — those are the claims anyway that they purchased all the rivals so there effectively was nowhere else for a highly qualified MMA fighter to go, even if they decided they didn’t want to sign a long-term deal with the UFC, there are all the other avenues to go or close because UFC own.

 

Joe Patrice: I mean that seems pretty logical. It does seem like if you are an MMA fighter there is not a lot of options, but one of the another issue that you raised, that seems as though it is very related is what are these MMA fighters, vis-à-vis the UFC. Are they just independent contractors, the way that boxers just contend for a title or given the way the UFC operates, are they actually employees of the UFC in the way that wrestling as an entertainment venture kind of treats it?

 

Jason Cruz: Yeah, it’s really interesting because there is a kind of the back-and-forth related to MMA and boxing and if you were to get deep down into the argument of MMA versus boxing and don’t go to Twitter for this because MMA and boxing stands are some of the most vicious around.

 

(00:10:04)

 

If you look at just generally the purses and the payouts for the boxers, a lot of the higher-end boxers have relatively high purses and that’s based on the fact that they have the bargaining leverage, whereas if you look at the UFC, maybe you have your Conor McGregor and then everyone else is at a set market rate where they don’t have that leverage because the UFC has been able to through — going back to the antitrust law, has been able to do exclusive contracts to sell itself as a brand rather than market its individual pieces vis-à-vis the MMA fights. So what you have here is that no one is bigger than the UFC brand and that kind of helped it when Endeavor purchased the UFC for $4 billion a couple years back.

 

But going to your original question about independent contractors versus employees, yeah, that is one of the issues that we talk about in the book, and there is — there was one MMA fighter Leslie Smith that attempted to challenge that ruling with NLRB, it was originally accepted by the NLRB as far as determining whether or not Zuffa were wrongfully treating its employees, I mean, were wrongfully treating its independent contractors as employees, but for some reason, the NLRB stopped the process of that investigation and it summarily was — it was forwarded to the NLRB Appeals office in DC and did summarily dismissed.

 

So, Smith’s complaint you could say was dismissed even though the original opinion believed that they should do an investigation.

 

Joe Patrice: Interesting. Yeah — no, I mean, we have been seeing this independent contractor versus employee thing all over the place. I mean, it was a huge issue in California with the Uber drivers and everything like that, but it is — it’s one that I wouldn’t have even thought of MMA-wise, but it’s true that like, that is kind of how it feels.

 

Jason Cruz: So the UFC fighters are deemed as independent contractors and actually in any other fight promotion they are deemed as independent contractors. However, as Smith try to point out in her requested NLRB was that they don’t have the flexibility as independent contractors, meaning they can’t go to a different organization if they are not getting any fights in the UFC or they can’t — they are beholden to their contract by the UFC.

 

And obviously the one thing in advantage of being an employee with the UFC is that they would be afforded a lot of benefits. I mean, full-time health insurance, vacation, sick leave. If you are a female fighter you could get maternity leave, things of that nature.

 

Joe Patrice: Yeah. Now, I mean, it does overlap with that monopsony claim you were talking about earlier, yeah.

 

Well, to transition a little bit from their independent contractor, employee, employment status, so one of the — and this is something that’s come up in other forms of fighting is, we are all familiar with the role in boxing of promoters and I actually was not — I am one of those people who did not know much about this world. I actually didn’t know anything about the Muhammad Ali Act before getting through this. So, can you walk us through what is that and how it relates to where the MMA is going?

 

Jason Cruz: Well, the Muhammad Ali Act was enacted as a way to protect boxers from unsavory aspects of the boxing business, meeting managers and promoters. One of the overarching issues was the enactment of the Muhammad Ali Act was to prevent fighters from being taken advantage of.

 

What had happened in the past was that managers would act as promoters, meaning there will be a dual — basically a conflict of interest because if you manage a boxer you’re supposedly negotiating with a promoter to make as much money as possible.

 

Well, if you are both, manager and promoter, you’re not really — you are not really — one of those things is not like the other. You are not — if you’re a manager you are not going to get — you want to get the most money for that, for the athlete; but, if you are a promoter, what you’re trying to do is you are trying to ensure that you can have draw down these salaries for these acts.

 

(00:15:07)

 

So basically the Muhammad Ali Act was enacted to protect some of these things and people could sue under the act to force promoters and managers to comply.

 

So one of the other things that happens is that it should provide transparency for boxers, so they know at the outset how much they are making before fighting, because what happened in the past is that boxers would fight and then they wouldn’t realize how much they are getting because they don’t see that a promoter took a cut and then the manager took a cut and the regulatory agency takes a cut, those types of things they didn’t see beforehand.

 

So Congressman Markwayne Mullin, a Republican out of Oklahoma, had brought for this bill to expand the Muhammad Ali Act to MMA, and that happened — so that happened I believe in May of 2016 and a lot has happened since then. I believe, and you might be able to help me here, Congressman Mullin was one of the Republicans that stormed one of the hearings there.

 

Joe Patrice: Oh, with the secure area.

 

Jason Cruz: Yeah, the secure, yes, yes. So it’s interesting that he had brought forth this expansion of the Ali Act simply because he is a big supporter of President Trump and President Trump is actually good friends with Dana White; a couple of weeks ago Dana White actually was stumping for Trump in Colorado. So the fact that this Act would see any light of day during this administration is —

 

Joe Patrice: Kind of crazy, yeah.

 

Jason Cruz: Kind of crazy, yeah, kind of crazy. And so anyway, so this happened in 2016, but it would offer the same protections for MMA fighters and a lot of MMA fighters believe that if they were able to see some of these protections, they could see the same protections as boxers.

 

Now, there were two congressional hearings about it, with the UFC testifying at both and also advocates for the Ali Act, MMA fighter I think Randy Couture testified at both.

 

There were also issues related to CTE, the health portion of that with the sport. I mean obviously it’s inherent that concussions and head injuries are prevalent. So that was one of the other things that came up in these hearings. But just to give you an update on where the federal law is right now or the bill is, it’s probably buried somewhere.

 

Joe Patrice: Yeah. You know you raised the concussions and that’s obviously something that impacts high contact sports, but another societal ill that seems to plague sports like this is performance-enhancing drugs, which is another topic that you give a whole treatment to. So what is going on when it comes to drugs and the MMA?

 

Jason Cruz: The UFC has its own anti-doping policy and it’s always evolving. I mean I think they have — I know they partnered with USADA and implementing a program. I say it’s evolving because there have been issues related to testing and then there is issues related to the adjudication of testing.

 

So basically I go in length about tainted supplements that fighters have. So a fighter tests positive for a banned substance and they proclaim their innocence. Everyone thinks that hey, you know, this guy is on steroids, he shouldn’t be fighting, and then it comes out a year later that he just took a bad supplement, a GNC.

 

Joe Patrice: Right.

 

Jason Cruz: So the adjudication process is very strained because of the duration it takes and obviously from USADA’s point of view there is a cost element, there is also a testing element that I am not sure whether or not they can shorten the length of the examination process. The issue is the public relations standpoint of hey, this fighter tested positive and everyone now thinks he is a big steroid user.

 

(00:19:57)

 

The UFC has made strides since I published the book, they have made strides in enforcing a policy now where it’s not announced until after the person serves the suspension or whatnot. But the problem with that is you have a fighter that’s really good and then he has taken a year vacation and you wonder why.

 

Joe Patrice: Yeah.

 

Jason Cruz: And then obviously the question is hey, has USADA flagged you for a positive test. And so you see now even with the reform policy of USADA, you see athletes actually self-outing themselves as I took a substance that was tainted and things of that nature.

 

Growing from that there have been lawsuits related to people suing supplement companies because they had something that was basically not on their — not on the back of the label and they had to sit out because of some sort of random issue with the making of the supplement.

 

And just to cover the rest of it. As far as the other promotions and fight leagues outside of UFC, there are state commissions, like Nevada, that do state drug testing, but aside from that it’s up to the promotion whether or not they pay for things like drug testing, and long story short, most of them don’t.

 

Joe Patrice: Yeah. All right, probably going back to that independent contractor employee sort of distinction.

 

Jason Cruz: Yes.

 

Joe Patrice: They can write it off you. I of course remember the controversy about Fight Milk, it’s always — did you watch that, It’s Always Sunny episode about the UFC?

 

Jason Cruz: I did not.

 

Joe Patrice: Yeah, there was It’s Always Sunny in Philadelphia episode where they were selling us a like energy drink kind of product made from crow’s milk, which anyway, that turned out to be filled with some performance-enhancing substances and getting them in trouble. And like Dana was in that episode and everything, so it was a whole to-do.

 

But anyway, transitioning from that too, I guess the final big topic I wanted to talk about is the one that impacts me, because I have to pass through New Jersey always on my way back and forth in New York and when I do that I get a pop-up that tells me I am now legally able to bet on my phone whenever I am across that border.

 

So sports betting is now, because of New Jersey’s move is something that’s moving around the country and there is — especially with Daily Fantasy and stuff like that, but in New Jersey it’s just straight up sports betting. What’s going on with MMA and betting?

 

Jason Cruz: Ah, we are doing it. I think that you will see a lot more of that occurring. I think that it’s — the UFC has partnered up with gaming establishments here in America and European partners. It’s a big piece of MMA. I mean if you watch a UFC broadcast on ESPN or on the pay-per-views, you will see them — right before the fight starts they will tell you who the underdog is, who the favorite is, that sort of thing. It’s going to be a very lucrative thing for the UFC because of its sports betting partners.

 

One of the things on the flip side of that is the issue of well, hey, can fighters throw a fight and there was a issue in Korea a couple of years ago where a fighter, a UFC fighter actually was indicted by Korean prosecutors for fixing a fight and basically he claims that he didn’t want to go through with it.

 

So there are issues with potential fixing of fights. The UFC does monitor its betting lines to see whether or not there is huge fluctuations in the line, to see if hey, if a line looks really kind of funny, do they think that some fighter is on the take. And the issue is that you could have two fighters just say hey, let’s just spar for the first two rounds and then the third round let’s just go for it and see who wins, and you could just bet the over as far as how many rounds is this fight going to go.

 

Joe Patrice: Yeah.

 

Jason Cruz: You could just bet the over and just say hey, let’s just hang around for the first two rounds, we won’t knock each other out, we won’t submit each other, but in the third round — and then each fighter could say there was no fix, because hey, I didn’t say I was going to lay down or I didn’t say, you know, that kind of thing.

 

(00:25:02)

 

So I mean obviously in any sport you could have sort of point shaving type issues, but just giving you that MMA example, it’s not just somebody taking a fall in the ring, just going down easy, it could be something to that effect where there is just the gentlemen’s agreement and then third round here we go.

 

Joe Patrice: Wow. Fascinating. Yeah, no, I wouldn’t have necessarily thought of the over, but it’s true, that kind of proc bet sort of situation is — yeah. Wow.

 

So all right, well, it looks like we are coming close to the end of our time here. So thank you for coming on the show again.

 

To remind everybody, we are talking to Jason Cruz. His book is ‘Mixed Martial Arts and the Law’ and he goes into all of these topics and a few more and in much more detail. So check that out.

 

Thanks for coming on.

 

Jason Cruz: Thank you very much Joe. You could buy it on Amazon and the website is mmapayout.com.

 

Joe Patrice: Oh right, mmapayout.com, which is obviously where you have — you still have writing there too.

 

Jason Cruz: Yeah, I have been writing there since 2011, so yes, visit that website as well for up to date stuff.

 

Joe Patrice: Yeah, I got so fixated on the book I forgot about oh, where you can also just read him all the time.

 

Jason Cruz: Oh yeah, that’s okay. It’s okay to be fixated on the book.

 

Joe Patrice: Fair enough, book first and then check him out there.

 

All right. Well, thank you for joining and take care of yourself out in Seattle.

 

Jason Cruz: We will try. Thanks a lot Joe. And you take care out there in New York too.

 

Joe Patrice: Thanks, we will try. And thank you all for listening. If you aren’t already subscribed, you should do that, you should give us reviews, not just the stars, write something, it helps out. Also be listening to the other shows in the LTN network as well as The Jabot, which Kathryn Rubino hosts here at Above the Law.

 

You should be reading Above the Law, if you don’t do that already. Add that along with MMA Payout, and you should be following; I am on Twitter @JosephPatrice and you should — I think that catches up on everything. And thank you to Logikcull for sponsoring this show, and with that, we will talk to you next week.

 

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