By Shawn Schatzle, Esq. of Havkins Rosenfeld Ritzert & Varriale
On December 7, 2013, Mark Hunt engaged in one of the most thrilling heavyweight bouts in the history of mixed martial arts. Hunt, a New Zealand-born kickboxer known for his iron-clad chin and otherworldly knockout power, waged war against Brazilian behemoth Antonio Silva in a back-and-forth classic in a main event fight from Brisbane, Australia. Hunt landed punches, elbows, knees and kicks on Silva, who kept pushing forward. For his part, the Brazilian mixed up his attacks as well, landing brutal strikes throughout the contest, including a fourth-round knee that would have put other men to sleep. Hunt refused to be put away. The bout ultimately went to the scorecards, with the judge’s declaring a draw. In this instance, the crowd seemed satisfied with what is generally considered an anticlimactic conclusion; the bout was so exciting, and so closely contested, that it seemed unfair to declare either one the victor. In a rematch in Melbourne approximately two-years later, Hunt proved himself to be the better man by finishing the Brazilian with devastating strikes in the first round.
Hunt has made a career out of defying the odds to score resounding victories. During his kickboxing days, he lost a decision in a bout to Ray Sefo in 2001 that served as a qualifier for the K-1 World Grand Prix Finals. When Sefo was later injured and unable to compete in his next qualifier bout, Hunt replaced the man who had just beaten him. He then battered Sefo’s scheduled opponent with strikes, earning a spot in the tournament. Hunt later won three fights in a row to become the 2001 K-1 World Grand Prix champion, which included a victory over Jérôme Le Banner, who had defeated him the prior year.
Beginning in 2006, Hunt’s career took a turn for the worse. He suffered five straight losses in mixed martial arts, all via finish in the first-round while competing in Japan. As a result, he had become something of a punchline in the sport, with the general consensus being that it was time for him to hang up the gloves. His contract with PRIDE Fighting Championship was ultimately picked up by the Ultimate Fighting Championship (“UFC”) as part of its purchase of the Japanese promotion in 2007. The UFC initially offered Hunt a buy-out of his contract instead of offering him a fight; the promoters effectively told him that they would prefer he stay at home instead of compete in the Octagon. Undeterred, Hunt refused a buy-out and forced the UFC to offer him a bout. After losing his first content to an unheralded opponent, the New Zealander scored four victories in a row over increasingly difficult competition. Three of those men were knocked unconscious by Hunt in highlight-reel sequences. He ultimately worked his way to fighting for the interim UFC heavyweight championship in November of 2014, in a losing effort against perennial contender Fabricio Werdum.
In the summer of 2016, Hunt’s fan-favorite status as an action fighter made him an ideal opponent for the returning Brock Lesnar, a former UFC heavyweight champion. Lesnar, a collegiate wrestler who first gained national recognition as a professional wrestler for World Wrestling Entertainment (“WWE”), had last fought in mixed martial arts in 2011. He subsequently retired from the sport and returned to his pro wrestling roots. When the UFC sought to put together a mega-card for its bi-centennial event UFC 200, scheduled for July 9, 2016 in Las Vegas, the stars aligned for Lesnar’s return to the sport. He was matched up with Hunt in a bout that was not technically the main event, but was the main attraction for fans. It was announced that Lesnar’s bout would be a “one off,” meaning he was not planning any prolonged return to mixed martial arts but was instead planning on competing in one bout and then returning to professional wrestling.
After Lesnar’s 2011 retirement from mixed martial arts, the UFC’s drug testing rules underwent a drastic overhaul. The organization had previously left doping protocols to the individual state athletic commissions that oversaw its events. Ultimately, in 2015, it entered into an agreement with the United States Anti-Doping Agency (“USADA”), which oversees drug testing for the United States Olympic Committee, among other organizations. The UFC had primarily retained USADA to oversee year-round, random, out-of-competition testing of its athletes for performance enhancing drugs (“PEDs”).
Various protocols were put into place to facilitate USADA’s testing of the UFC’s athletes. Among these, retired fighters who sought to return to competition were required to be placed into the pool for random testing for a period of four months prior to a scheduled bout. The purpose of this protocol was to avoid a situation where a fighter could declare retirement, be excluded from the testing pool and then declare an imminent return to the sport, while secretly doping during the retirement period. However, a rule was put in place allowing the UFC to waive the four-month testing requirement under “exceptional circumstances.”
Lesnar, a massive draw in both professional wrestling and mixed martial arts, signed his UFC 200 bout agreement approximately one month before the July 2016 event. The UFC elected to waive the four-month drug testing requirement, largely on the basis that the USADA protocols were not in place when Lesnar retired in 2011. In reality, it appeared as though the organization sought an athlete with drawing power to appear on the card, and Lesnar fit the bill. Regardless, the former collegiate wrestler passed multiple drug tests throughout June of 2016 prior to the bout. He then defeated Hunt by decision in a relatively lackluster affair. However, shortly following the bout, it was announced that Lesnar had tested positive for PEDs in a test administered on June 28, 2016 — 11 days prior to the July 9 bout. The results were not received by USADA until after Lesnar had beaten Hunt.
The bout was ultimately rendered a “No Contest” by the Nevada State Athletic Commission (“NSAC”) and Lesnar was suspended from competition by both NSAC and USADA. He subsequently appealed the determination, before reaching a settlement involving a $250,000 fine and a one-year suspension. He has since returned to WWE.
The UFC 200 event garnered over 1,000,000 buys on pay-per-view and earned over $10,000,000 at the gate, rendering it a massive financial success for the UFC. Lesnar earned a reported purse of $2,500,000, not including any potential bonuses, compared to Hunt’s purse of $700,000.
Hunt was outraged by the fact that he had been beaten by someone who he deemed a “cheater.” It was not the first time that one of Hunt’s opponents tested positive for PEDs; at least six of his UFC opponents have testified positive at one time or another, including Lesnar and Silva. Hunt initially advocated for harsher penalties for doping violations, and began demanding that the UFC begin implementing a clause in future fight contracts that would fine athletes their entire bout purses in the event of a failed test. When the UFC apparently did not concede to his requests, he opted to pursue legal action.
In a Complaint filed in the United States District Court of Nevada in January of 2017 against Lesnar, the UFC and the organization’s President, Dana White, Hunt alleged that the named defendants “affirmatively circumvented and obstructed fair competition for their own benefit.” He asserted causes of action for negligence, breach of contract, fraud, conspiracy, unjust enrichment and a violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), among others. He effectively alleged that the UFC and Lesnar conspired to allow Lesnar to cheat prior to the UFC 200 bout, or that the UFC was otherwise aware of Lesnar’s alleged doping and allowed him to compete regardless. He sought damages, including for personal injuries and for financial harm to his brand.
In response to the Complaint, White and the UFC filed a motion to dismiss, followed by a similar motion from Lesnar. All of the named defendants effectively argued that Hunt’s Complaint was subject to dismissal at the pleading stage. They argued that he had failed to allege his fraud cause of action with the requisite specificity for multiple reasons, including the fact that there were purportedly no specific false representations upon which Hunt relied. They also argued that the RICO statute was not designed to provide redress for the circumstances at issue and that, regardless, Hunt failed to adequately plead the requisite elements of a RICO claim, including the existence of a “criminal enterprise” and a “pattern of racketeering activity.” The UFC specifically argued that there was also an “utter dearth of specific allegations” against White.
After Hunt submitted opposition to the motion and the named defendants were given an opportunity to reply, the parties ultimately appeared for oral argument before Judge Jennifer A. Dorsey on May 22, 2017. The UFC’s counsel began by arguing that the RICO statute was “intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff.” He also noted a lack of proximate cause between any claimed injury and the alleged conduct. He specifically highlighted the fact that Hunt had continued to fight for the UFC after the Lesnar bout, and had actually earned higher purses than what he was paid for UFC 200. This was not in dispute, as Hunt was paid a $750,000 purse for a subsequent bout against heavyweight contender Alistair Overeem. In opposition, counsel for Hunt claimed that there was an ongoing course of conduct by the UFC and White “whereby they … knowingly pitted cheating fighters against clean fighters.” He argued that the UFC defrauded Hunt, as well as fans, when they allegedly knew Lesnar had been doping but allowed him to compete. He also argued that Hunt sustained damages in the form of lost promotional opportunities.
Ultimately, following oral argument, Judge Dorsey rendered a decision from the bench. She dismissed Hunt’s breach of contract and statutory fraud claims with leave to amend, while dismissing his negligence cause of action with prejudice in light of the fact that it overlapped with his breach of contract claims. She also held that the negligence cause of action was barred by an assumption of risk provision in Hunt’s bout agreement. She cautioned that effectively all of the claims against White were “incredibly thin at this point,” but allowed leave to amend. She also dismissed the RICO claim as an “overenthusiastic use of [the statute]” and because the “facts as pled [did not] permit [the court] to infer proximate cause,” with leave to amend. However, she noted that the pleading standards were “a high hurdle” and she was not sure that Hunt could meet them, even if he were to file an amended pleading.
Hunt then filed a First Amended Complaint to set forth additional allegations to support many of his causes of action. For example, he set forth concrete financial harm to help constitute the type of damages allowed under the RICO statute. He set forth the substance of text messages that he received from White that purportedly evidenced White’s personal involvement in the alleged illegal scheme. He also added a cause of action for battery against Lesnar, effectively arguing that he consented to the risks inherent in competing against a clean fighter, but that he did not consent to the increased risks of competing against a fighter who had taken PEDs. As such, Hunt argued that the bout with Lesnar was beyond the scope of their agreement to compete in a combat sport, and that Lesnar should therefore be held liable for battery.
Lesnar, White and the UFC responded to the First Amended Complaint by once again filing motions to dismiss. They largely reiterated arguments set forth in their original motions. For example, they again noted that Hunt had failed to plead facts sufficient to support his various causes of action. In his motion, Lesnar also vehemently argued that Hunt’s claims were entirely speculative. He noted that Hunt had effectively claimed that Lesnar would not have been allowed to compete if he had not been giving the testing exemption, and that Hunt would have been Lesnar or would not have been beaten by Lesnar as badly as he had, but for the testing exemption. Lesnar also argued that any alleged physical or financial injuries could not be traced to the UFC 200 bout, as Hunt had numerous prior and subsequent combat sports contests. They requested that the First Amended Complaint be dismissed without leave to amend.
Hunt has opposed the motions to dismiss his First Amended Complaint, arguing that he has cured any purported deficiencies in his RICO claims by alleging loss to his “business or property”; that proximate causation exists between the alleged injuries conduct and his damages; and that White directed the alleged RICO enterprise. He also argued that his allegations relating to various communications with White before the Lesnar bout support a viable fraud claim, among other opposition arguments. Judge Dorsey has not yet rendered a decision on the motions to dismiss the First Amended Complaint.
Practically speaking, Hunt has helped to shine a light on some of the issues with the UFC’s doping protocols. Since the filing of Hunt’s action, USADA and the UFC have announced changes to the protocols, which largely make them more specific. Effective April 1, 2017, athletes who are new to the drug testing pool must be in the pool for at least one-month before competing in a bout, although this required can be waived “if an athlete is replacing someone on an upcoming card because of injury or other reasons.” As for athletes who have previously been in the drug testing pool but removed themselves from it due to retirement or other reasons, they are required to be in the testing pool for six months before they can compete.
Hunt’s claims raise interesting legal questions. The majority of Hunt’s claims could ultimately be subject to dismissal, whether at the pleading stage or after discovery has been held. From a broad perspective, it will be difficult to establish that the UFC and White knew that Lesnar was doping and conspired with him to conceal it, or otherwise turned a blind eye. There may be no evidence to support that claim, as it would seem likely that the UFC and White would not risk the credibility of the entire sport of mixed martial arts to give one fighter an edge over another. Moreover, there would seem to be little reason for the UFC and White to pull strings behind the scenes to give Lesnar an edge. If anything, it might have been preferable from a promoter’s perspective for Hunt to have won. It was clear when the bout was announced that Lesnar was only planning a return to the sport for one-night; a Hunt victory could have allowed the UFC to promote him in higher profile, and perhaps championship, bouts.
Hunt’s claims against Lesnar may carry more legal weight than those against the UFC and White, although that remains to be seen. Holding a doping fighter liable to his opponent for fraud or battery would seemingly open up the litigation floodgates. This would become especially murky in circumstances where athletes unknowingly ingest banned substances, or where a doping violation is announced only to be overturned on appeal. With that said, there would seem to be a potentially viable argument that a fighter on PEDs is potentially stronger or faster than he or she otherwise would have been, and that such factors constitute elevated risks beyond those inherent to combat sports, although it would be very difficult to determine damages without speculating.
With that said, it remains to be seen how Hunt’s claims will ultimately play out in court. One thing is for certain, though: he will not go down without a fight.
