Jason Cruz was born in Seattle and raised in the Rainier Valley neighborhood. He attended Kennedy High School in...
Above the Law – Thinking Like a Lawyer
Step Inside The Octagon — Law And MMA
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.
Joe Patrice: Hello everybody and welcome to another edition of Thinking Like a Lawyer, I am Joe Patrice from Above the Law. My co-host, who is not in front of me, because he’s been dispatched to some kind of weird warzone, at least based on the sound quality, Elie Mystal, are you out there?
Elie Mystal: I am in my home and I am hot as balls because to record I had to turn off all my — I don’t have air-conditioning on my main floor, so to record I have to turn off all of my fans. So, not only am I using my Rock Band 4 PlayStation mic to record, I am also basically naked.
Joe Patrice: Wow. So, now that all of our listeners have – now I am thinking you are all ready with that visual. So, yeah — so, okay, it’s warm here in New York these days, but we are coping, I am in an office that has air-conditioning, so I am coping much better and fully clothed and everything.
Elie Mystal: I don’t mind nudity.
Joe Patrice: Fair enough, so —
Elie Mystal: That’s not what’s pissing me off today.
Joe Patrice: Oh, oh by all means.
Elie Mystal: So, I just put this article up on Above the Law. What’s really bothering me today, which is the use-mention distinction that at least on my Twitter feed exclusively White intellectuals are using to justify the use of the n-word by White professionals. We put up a post about an Emory law professor who “mentioned” the n-word in connection with a case in his class that allegedly mentioned the n-word, of course the case he was talking about did not actually use the n-word. So he was —
Joe Patrice: Hey, you don’t need to allegedly adhere, this is actually established.
Elie Mystal: Yeah, I am saying he said the case that he was teaching use the n-word which spoiler alert, it did not. So, he just got a free n-word in on there.
One of the hire-ups at the Human Rights Watch she resigned after using the n-word mentioning the n-word according to some people, and it just — it really bothers me that White people think that driving a wedge in between use and mention of the n-word makes one goddamn difference to me, right? Like, you shouldn’t use the n-word, you shouldn’t mention it, you shouldn’t articulate it, you shouldn’t moaning out in anger, just use a different freaking word. It’s not your word to use.
I do not use the n-word. Joe, you can vouch for me here, I think, I don’t use the n-word in public, I don’t use the n-word in private, I don’t use the n-word when six drinks to the wind. It’s not in my lexicon. I could, right?
Joe Patrice: Right.
Elie Mystal: There is a double standard in this country on this particular word and I could use it if I want it to, but I don’t, and if I don’t and I can, you as a White person literally have no excuse to use it or mention.
Joe Patrice: Yeah, it’s remarkably easy to not utilize it and —
Elie Mystal: Joe, when you do debate, for listeners who don’t know, you coach debate —
Joe Patrice: I do.
Elie Mystal: When you are dealing with a critical race theory topic or I am sure that word comes up in some of the literature that you teach —
Joe Patrice: Yeah.
Elie Mystal: Do you mention the n-word to your sometimes African-American students?
Joe Patrice: No. It’s pretty easy not to; in fact, the way in which we keep utilizing the word n-word is actually pretty evident. It’s a thing that exists right there so that you can flag the fact that it exists without saying it. But, yes; no, you don’t.
There are of course difficult questions along the line of, well, if you aren’t saying it but you are introducing evidence from somebody who did, who probably had the right to, is that you erasing their perspective yada-yada and arguments can be had over that, but as a general matter, no, you don’t, you can just not use it.
Elie Mystal: It’s just safer — it’s just — it’s just fundamentally safer to go about your life not using that word.
Joe Patrice: Yeah.
Elie Mystal: All right?
Joe Patrice: I think that’s fair.
Elie Mystal: Not everybody needs to be snooped, okay? Like, not everybody is a goddamn gangster rapper and needs to live that life, you could just live a different kind of life where that word is important — and look, I like to say that I don’t use the word or say the word or mention the word because of kind of a higher intellectual purpose. There is also the fact that I am more twofer from 30 Rock then Tracy Morgan, right?
Joe Patrice: Those double Harvard degrees, yeah.
Elie Mystal: I can’t pull that word off like some of my brothers. However, again, it’s not that hard for me to live my entire life without using the word even as a Black person. So, if it’s not hard for me I fail to understand how a non-Black person could have significant struggles with it.
Joe Patrice: Yeah, I mean —
Elie Mystal: Rants over.
Joe Patrice: Right, yeah, it’s pretty easy, and yeah, we have a really ready to exist marker to suggest to people that this thing happened without saying it.
So, with that let’s transition and let’s talk about unmitigated violence. So yes — so very fascinating way in which this kind of all came up. I was messing around on my Twitter and just seeing what all was out there when I got a —
Elie Mystal: Messing around on Twitter, not using the n-word.
Joe Patrice: Yeah, also true. What I got a fascinating pitch from someone telling me that their lawyer who has some kind of a niche interest in MMA and I was like, well, that’s a thing that’s interesting, that is a world that I would be interested to find out how one marries all of those things. So, our guest today is Jason Cruz who — well, he can tell you himself. So, welcome to the show and how do you get into all this?
Jason Cruz: Hey guys, how are you doing? Long time fan, first time —
Joe Patrice: First time guest.
Jason Cruz: Yeah, definitely.
Elie Mystal: Welcome.
Jason Cruz: Yeah, so I am a lawyer out here in Seattle, Washington. I have been practicing for goodness, almost coming up on 20 years, but I have my own practice but one great thing about having my own practice is I could write about my differing interests. So, one of the things I do is I write about combat sports and the website I write for is called MMAPayout.com and we focus on the business and legal aspects of mixed martial arts, and believe it or not there are a lot of legal issues in martial arts.
Joe Patrice: Oh, I would imagine because it seems like it goes that next — at least sometimes I have watched it, it seems like you’re crossing into a world where people are just trying to kill each other, so I would assume there’s at least some serious legal discussion, that’s before we even get into the business side of it.
Jason Cruz: Yes, did most definitely.
Elie Mystal: Before we jump fully into it, can I ask as an older man?
Jason Cruz: I wouldn’t be that — I wouldn’t kill myself.
Elie Mystal: I am saying me — me — I, I am — I am —
Jason Cruz: Oh you, oh, oh, okay.
Elie Mystal: I have got one foot in the grave. As an older man explain to me why you chose to focus on MMA, which as Joe points out is kind of closer to assault and not the sweet science, see, because I am all about the old and ancient art of boxing and MMA feels a little — again, I’m showing my age MMA is just always feels like the new kind of more violent, more quick version of boxing, what are your feelings on boxing in MMA?
Jason Cruz: Yeah, hey, it’s actually — it’s an interesting story because I grew up sneaking out of my bedtime to watch boxing matches that my dad was watching it at night. So, he was a big boxing fan. So that’s how I kind of got into like the combat sports kind of arena there, I mean, I’m still a big sports fan all around, but I had held my heart there for boxing just I don’t know what about punching another man in the face was interesting, but it was.
And then, flash-forward to maybe in my misspent 20s and I lived in Orange County, California. I was at a bar and I came upon Tito Ortiz v. Chuck Liddell fight, I believe that was, or is it Ken Shamrock, any way — two MMA fighters and it was Orange County’s — it seems to be known for I don’t know something, but anyway, they are big MMA — it is a big MMA community and I started watching it in the mid-2000s and I just grew up on it. And it was funny because the website I write for they had an ad in about 2011 saying, hey, we need a writer, and lo and behold, I answered the blind ad and made it, and I have been a big fan ever since.
Elie Mystal: That’s how I kind of came to Above the Law only, I have not been a big fan of the law ever since.
Jason Cruz: If I can divulge something to you, I remember that whole process and I was considering throwing my hat into the ring of the — what was it, the talent show or the —
Joe Patrice: Yeah, the Idol.
Elie Mystal: ATL Idol.
Jason Cruz: ATL Idol, yes, but obviously you won, so to speak and congratulations, it’s been great.
Elie Mystal: Thank you.
Joe Patrice: Yes, for the —
Jason Cruz: See that’s how old I am. I remember that.
Joe Patrice: Yeah, for the younger listeners, yes. Elie got his job here through a contest. So, someday there will be an oral history about that I’m sure. But yeah — no, so, did you ever — I am not going to say fight MMA but did any of the stuff, did you get into like martial arts, boxing, wrestling, any of the various disciplines that go into MMA, is that part of your interest or was it just literally singing that?
Jason Cruz: It’s funny because it happened after I became a fan. I don’t know why, but like I was really scrawny in high school and people wanting me to be on the wrestling team, but I was like that’s not my thing, I don’t know about doing all that, but after I became a fan in 2000s I became interested in it.
And I did — for a couple of years, I did kickboxing and boxing kind of working out going to an actual MMA gym, and it takes a toll on your body. So, I stopped doing that but I still do jujitsu.
So, it’s a good workout and it’s one of those types of sports that you have to kind of lend yourself to for a while before you could actually get adjusted to it and all of the happenings behind it.
Elie Mystal: It takes a toll on your body has to be one of the biggest understatements of this entire podcast.
Jason Cruz: Yes, yes, it takes a toll on your body, and yeah, you do wake up with a different kind of soreness, I think. I don’t know, it’s like all your body, you don’t realize that you had a bruise on your knee or your shoulder like it would hurt that much, that kind of stuff.
Elie Mystal: So, Jason, where is the line between the sport and criminal assault. I know where the line is in football, I know where the line is in boxing, I don’t know where the line is in MMA.
Jason Cruz: Well, I guess, the question is, if you’re in the criminal assault, maybe you’re doing MMA wrong, but it’s definitely a disciplined sport. One of the things that I noticed when going to the MMA gym and training with guys that like basically kick you and hit you and things like that, everyone’s really calm, everyone is really — I would say 90% of the people I’ve interacted with are very calm.
They’re like, hey, how is it going that kind of thing. But, I mean, so I know gyms now are afraid of CT and things like that, so there’s not a lot of sparring so to speak where you go in and you punch people really in the face now, they do it with pads and things like that and if you progress, you can go to sparring.
Back when I did it, you could just sign a waiver and enter the gym and people see you as fresh meat; but, to get back to my point, I would say, 90% of the people after they hit you and things like that, they are like, hey man, good jump, great job, they pat you on the butt — back that sort of thing.
And I think a little bit of that is the overarching theory that you have to have people to spar with. So you got to be nice to these people so they come back; otherwise, you’re left alone hitting a bay.
Elie Mystal: Don’t slaughter the cow, you need that milk man.
Joe Patrice: Yeah. Wow. So I find this fascinating because you’ve worked in Big Law sorts of places because some of — a lot of our listeners are folks who are starting out in their career or still in law school. So, the idea that somebody could kind of forge a path like you have that works for firms then starts out on your own does some writing on the side, that’s just a fascinating path that I think a lot of folks just kind of need to know, can’t exist for them.
So, I’m glad, you’re here to kind of tell people they know, you can do this.
Jason Cruz: I came out on the other side, yes, I survived.
Joe Patrice: Yeah, exactly. So, let’s talk about MMA and the legal ramifications of it. I mean, Elie has kind of previewed the criminal assault sort of discussion, but there’s a few different kind of things going on with MMA in law, actually several, you write about them, that’s what MMA Payout is for.
But, one thing you originally raised with me was this Conor McGregor case, can you walk us through what’s going on there?
Jason Cruz: I’m sure your Social Feeds know that Conor McGregor is back. It’s hard not to hear a TMZ video or something of Conor McGregor, but he is going to be fighting in October in Las Vegas in what the UFC is calling the biggest fight in history.
But, to take us back to the actual lawsuit that we’re talking about here, in August of 2016, he was said to promote a fight against Nate Diaz. Nate Diaz for those that don’t know is a fighter that just doesn’t really like a lot of people. He’s what you would call rough around the edge, it’s very unrefined, and that’s why people like him, that’s why people like him.
So, anyway, the press conference was a couple of days before the fight and they were at the MGM and they were set on stage to do one of these things where media asked, what’s your game plan to defeat Conor? Well, I’m going to punch him in the face and a lot, that kind of stuff.
So, Conor, doesn’t show up on time. Nate decided to go ahead with the press conference because they can’t wait all day. He shows up maybe 10-15 minutes late. Diaz, who’s there with other fighters is visibly upset that basically he thinks this is a personal diss to him.
So, once Conor sits down, a couple seconds later he gets up and leaves out through basically the crowd, trying to find an exit door off of the stage. Conor doesn’t like it, there was a heated exchange of words and the next thing you know, Conor McGregor and Nate Diaz and whoever was waiting, Nate Diaz was throwing bottles and cans, lobbing them at each other but also in the vicinity of people like over the media around people, things of that nature.
Elie Mystal: Yeah, I know, these dudes sound totally chill and calm.
Joe Patrice: Yeah, once there’s money involved, they don’t need to be nice, they have somebody to spar once there’s money involved, I think.
Jason Cruz: That is correct. This isn’t the Joe down the street, no, no. But, yes, they grew in animosity and also one of the things is you have to promote this vitriol, this hate between one another so you could buy a pay-per-view for 60 bucks. So, they started throwing bottles at each other and the security kind of breaks it up.
Apparently, a security guard at the MGM was struck in the shoulder, back shoulder by one of Conor’s throws, it was a can. And so he claims that due to the can he suffered some injuries so —
Elie Mystal: Oh my God.
Jason Cruz: Yeah, some injury, he suffered some injuries. So, it apparently three months, three or four months after this, he sends a demand letter to Conor McGregor’s representative stating that, hey, you know, I got injured when Conor threw that can at me. I have three grand manacles, but because you made so much money, I am requesting that you give me $228,000, $255,000 plus the $3,000, because the math. And, you do this or I’m going to sue you. Conor McGregor as you would — one would expect says, no, go pound sand, and he sues Conor McGregor.
Flash-forward a little bit here, basically the case gets sent to federal court, it was filed in Clark County, Nevada and moved to federal court by Conor’s attorneys because of the request for the amount of money and also by the way, Conor is not a resident of Las Vegas, Nevada, he just fights there. He’s the resident of Dublin, Ireland.
So plaintiff’s attorneys are personal injury attorneys and so they based on what I’m about to tell you, I would say their familiarity with the federal court system is limited. So, they had before they moved the case to federal court, they brought a motion to compel a deposition of Conor. They moved to obtain documents such as his 1099s, his tax forms, all of his UFC contracts, how much he made from the fight that he was promoting at the time, the tickets that were sold for the fight.
Because they wanted of course being attorneys and discovery, they want to make sure that if a judgment is made against Conor that he can pay, that’s why they need the documents and you can see what’s going to happen here. And move to compel those documents but what happened in the interim of requesting all that information is that they moved the case to federal court.
Well, federal court is a little different as they soon find out because they attempt to move to compel the documents as they would in state court and basically, what happens is they submit a declaration and that was first, that was like the first thing on the page, and they submit some bland factual information about like the meet and confer and what happened is they wanted to depose Conor in September, knowing the fact that he was going to be in Las Vegas for this fight, that I said it was going to happen in October.
Well, Conor’s attorneys say — being savvy attorneys, saying, hey, he’s going to be training so we can’t have you depose him and take a day away from his training. He is trying to be the best fighter in the world, which is actually a quote from the motion.
And another court he said was, he’s training beyond what you could possibly think of or something of that nature, is like, well, how does he know what we could think of his training.
Anyway, the court denies the motion, both motions, motions to compel a depo of Conor McGregor and the motion for all of those documents, citing essentially that they didn’t do it right. They didn’t include appointing authorities or legal analysis and with that, they didn’t even have to look at the motion.
Elie Mystal: Yeah, I’m sure, the Ninth Circuit was ready to throw some beer cans at plaintiffs.
Jason Cruz: It was bad, it was bad, it was one of those things where if you mess up, you hope you don’t mess up that much, but as you can imagine Conor McGregor’s attorneys had a field day in their opposition briefs, they basically called the plaintiff’s attorneys first-year law students.
They cited a website the Self-Help website for the Nevada Federal Court System that this is what you need. I mean, it is — I know you’re supposed to be civil in civil litigation but this was a lot of shade being thrown at plaintiff’s attorneys for not cracking a book of the federal rules for the State of Nevada and checking it out.
So, maybe the shade was appropriate and so that’s where we stand at. The one that Conor McGregor’s attorneys did offer was McGregor to be deposed a week later in Dublin, Ireland knowing that plaintiff’s attorneys aren’t really going to fly for this whole shenanigans.
Anyway, so that’s where it ended up. I’ve actually tried to contact both attorneys on both sides and I haven’t received a response. I know that I would assume that they would want to do something quick.
The one last thing, fact discovery ends October 31st, so the plaintiff’s attorneys are really up a creek.
Joe Patrice: Yeah.
Elie Mystal: Man. Joe, have I told you my theory for a fan liability?
Joe Patrice: Probably, but by all means tell everyone else.
Elie Mystal: You go to a sporting event that should be a constructive waiver for the kinds of crap that ends up in the stands at that sporting event, right?
You go to a baseball game, you have to assume the risk of getting hit by a baseball. You go to a NASCAR event, you have to assume the risk of getting hit by a flying tire or whatever.
You go to an MMA press conference, I feel like some punches and bottle cans are like part of — it should be a part of your effective waiver.
Joe Patrice: I mean okay.
Elie Mystal: Yeah, why not.
Joe Patrice: I do love that you are jumping to the idea that a what’s supposed to be a press conference will inevitably end in a brawl, as opposed to a baseball game where as long as the Mets aren’t playing you can assume someone is going to hit a ball, but with the press conference theoretically it doesn’t have to end in a fight.
Elie Mystal: An MMA press conference, I think — look yeah, if you go see Barack Obama press conference you don’t expect it to end in a fight. You go see a Conor McGregor press conference; you should assume that it’s going to end with somebody throwing a beer can around you.
Jason Cruz: But here is the thing, Elie kind of points out, you should assume that these things are happening.
If you were plaintiff’s attorneys don’t you think you probably would have also filed suit against the MGM, the place that houses this?
Joe Patrice: Yeah, the deeper pocket.
Jason Cruz: And the UFC, the people who are promoting it because they didn’t provide sufficient amount of security, and that’s just what made my mind.
Joe Patrice: More so than not having the points that are announced, that’s the rookie mistake for a personal injury lawyer not adding every single person who might have any money and liability to the case.
Elie Mystal: Because Conor has no reason to really settle, he’s freaking Conor McGregor, but the MGM is going to be like, here’s $5,000 go away.
Joe Patrice: Yeah.
Jason Cruz: I mean, the insurance would kick in, right? You get your insurance lawyers in there and they get coverage and that’s fine, we’ll just pay off the nuisance value.
Elie Mystal: Wow. And I need to go to one of these MMA press conference. I need some — I need some money.
Joe Patrice: Yeah. Well, unfortunately you just recorded something that will go out to the public that says you believe that you’ve assumed all risk by going there.
Oh anyway. All right, it looks like we’re coming close to the end of our show here. Thank you so much Jason for joining us. The website again is MMAPayout. So, if you’re a fan of MMA or just legal business analysis of sports generally, that’s one to add to your list.
Thanks for joining us and the next time something crazy happens in MMA we know where we’re going to call.
Jason Cruz: Awesome. I appreciate being along with both you guys and I’ll keep on listening.
Joe Patrice: Excellent, thanks. And thank you everybody else for listening to the show today. You should subscribe, you should give it ratings, stars, reviews all that sort of thing, it helps us move up the algorithm in the different subscription services so more people listen. You should listen, you follow me on Twitter @JosephPatrice, you can follow Elie @ElieNYC.
You should read Above the Law obviously, you should listen to the rest of the Legal Talk Network podcast offerings. You should listen to The Jabot, which is another, our colleague Kathryn Rubino’s podcast, and yeah, keep your eyes out for announcements on Above the Law that we’re going to be visiting a place, because you should come out and see us and we’ll do a trivia like we did in a recent episode.
Elie Mystal: Austin.
Joe Patrice: Oh, all right, talk to everybody later.
Elie Mystal: He is out.
Joe Patrice: Bye.
Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter, and Facebook.
The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.
The Mansfield Rule is a laudable initiative, but not nearly enough.
Lawyers often run for office -- and their past clients often become talking points.
A chat with former Orrick chief Ralph Baxter about what's next for firms.
Law and Sports Collide This Week.
Some hypothetical legal quandaries to contemplate.
A quick hit recap of the top stories in law.