This is part one of a two-article series originally published on the Bloody Elbow Substack newsletter. Paid subscribers get this content in full, ad-free and one day earlier than readers of this site.
The series focuses on the prospects of what a jury trial would look like in the antitrust case filed by retired fighters against the UFC in Las Vegas Federal court. Part one will focus on the jury pool. Part two will focus on the substantive legal & historical issues raised by the trial attorneys.
If the UFC and the fighters don’t settle the case, then what?
How do you convince a jury to vote in your favor if it means admitting that what they love and support is flawed?
That’s the incredibly fascinating problem the attorneys representing retired fighters in their Sherman antitrust lawsuit against UFC are facing now that the 9th Circuit Court of Appeals rejected Zuffa LLC’s appeal last week.
It’s been a very long journey for Cung Le and the hundreds of fighters in the class action lawsuit filed against UFC in December of 2014. Almost nine years.
Under normal circumstances, an antitrust case like this would be ripe for settlement. The amount of time, money, and discovery involved would normally bankrupt clients. It takes millions of dollars in resources to bring a case like this to trial. The great irony for UFC is that if the parties involved in this case had reached this current stage of litigation in year three or four, settlement prospects would have been greater. But nine years later? After all the time and money that has been spent by the Plaintiffs and their legal counsel, settlement prospects have decreased.
It is still more probable than not that we will see some sort of legal settlement in this case. That alone will change the way future business is conducted in Mixed Martial Arts.
However monumental a settlement would be, the higher risk/reward scenario involves both parties going to trial.
How would both sides with high-powered law firms prepare for such a unique Federal court case involving a Las Vegas institution like UFC?
After reading recently unsealed documentary evidence from the Court, I decided to dive deeper into the massive challenges that both sides are facing in a trial scenario.
The Plaintiffs sued both for injunctive relief and damages under the Sherman antitrust act. Injunctive relief means a judge can determine future changes to an industry, such as the way fighter contracts are written. Duke Law has an excellent old-school article on this powerful tool.
Then there are the prospects of a jury determining damages.
The most unpredictable jury pool for an antitrust case
The Las Vegas jury pool that the attorneys will be selecting prospective jurors from makes this UFC antitrust lawsuit explosive and entertaining.
There are the casino workers and Culinary Union members. There are the Chael Sonnen types everywhere in town who love and worship UFC as a local sporting & entertainment pioneer. There’s the specter of Trump’s shadow thanks to UFC’s association with him. Despite a Democrat-leaning split of independent Nevada voters in state and Federal elections, the former President’s electoral prospects look very decent in 2024 against current US President Joe Biden. Then there is the growing professional class of business & legal graduates, both from state schools and those parachuting in from Ivy League schools.
Conventional politics for this case will be entirely scrambled like eggs. Try navigating this psychological & sociological minefield. This is why jury consultants make the big bucks.
If this case boils down to issues such as community standing, emotional civic pride & symbolism, dueling economists and white papers, UFC will likely prevail. If this case boils down to history and evidential discovery, the plaintiffs have a great chance of success.
The degree of difficulty for the attorneys in this UFC antitrust lawsuit is at least a 9 out of 10. This case is only worth hundreds of millions of dollars or potentially even billions in damages. No pressure.
As I started charting out the many different arguments for and against the fighters suing UFC in jury selection alone, I was taken aback by how many difficult roadblocks and affirmative defenses that will be raised in the forthcoming voir dire.
The Big Business of Vegas Sports = Social Policy
It’s been a multi-decade project to make Las Vegas the sports monster that it is. After Pete Rose received a lifetime ban from baseball for his gambling habits, the idea that Las Vegas would one day become a major American sports hub sounded preposterous. Throw in the Tim Donaghy NBA scandal and conventional wisdom would have you had believe that the door was slammed shut.
Instead, Las Vegas is preparing to poach yet another Oakland sports franchise. It’s a sensitive topic for Bay Area sports fans. Brodie Brazil has done the best job of representing the Five Stages of Grief the locals are enduring.
You can’t discuss the current sports boom in Las Vegas without telling the story of UFC. There have been many big boxing fights at the major arenas that have drawn more money than UFC shows. However, UFC was truly the first major sports company to build their empire in Las Vegas and embrace gambling. They hit a home run with reality television, cable television, PPV, and finally network television with FOX to build a monster powerhouse. Without the established global footprint of the UFC, the credibility of Las Vegas sports would not be nearly what it is today.
Once Frank & Lorenzo Fertitta built their sports and entertainment business empire, it opened the doors for local and state politicians to start handing out taxpayer goodies to millionaires and billionaires to bring their sports toys to the desert. Those prospects grew brighter as UFC’s size and scale as a combat sports giant got bigger each day.
This is what the Plaintiffs are going up against. There is a level of prestige and status for the Fertittas among the elites in the business community. As UFC’s legal counsel likes to say in their pleading papers, UFC has First Mover status in Mixed Martial Arts.
Lorenzo & Frank Fertitta selling UFC for $4 billion dollars earned them a lot of respect, even from their enemies.
Company Town Syndrome
How do you convince a jury to vote against a hometown pioneer?
Try finding a resident that hasn’t been directly or indirectly touched by UFC’s economic or cultural impact in Las Vegas. Finding local jurors who don’t have an opinion on UFC is as fraught as finding an attorney that hasn’t been conflicted out by UFC. They’ve hired so many attorneys locally that you would struggle being able to hire local counsel to go against them in a lawsuit. Same concept here with available jurors. Hard to avoid bias or prejudice.
This is a town where Dana White has tipped hundreds of people very handsomely. He’s well known to have supported some, ahem, local establishments generously. He has his own Blackjack table.
The Fertitta’s casino empire remains alive and well. Look at all of the action UFC fights have given to the local sportsbooks. Whether you like Dana White or you don’t, he’s everywhere.
Which means the UFC antitrust lawsuit trial in Federal court will be an extraordinarily high profile case.
A jury may fear community retribution for finding UFC liable. What if a large jury verdict pushes UFC out of Las Vegas to conduct business elsewhere? Be prepared for scare tactics. The idea that Ari Emanuel might relocate or sell UFC from one desert to another desert in Riyadh. It might sound ridiculous to you, but you have to be prepared for big business in Vegas to influence or poison the jury pool. There are hundreds of millions of dollars at stake in this case.
Being known as a juror that voted against UFC in a major trial could absolutely leave you vulnerable both personally and professionally from retribution. Whether it’s a media stooge, a super fan, a private investigator, or even someone in law enforcement who decides to leak your name out to the public after a judgment. Most of the jurors that will be selected will have something to lose — a house, a job, children. The fear of being targeted is going to be a real factor.
If you haven’t lived your life in a company town, small or big, you don’t fully appreciate the microscope residents live under when a major moneymaker has their backs against the wall.
A lot of people have made a lot of money in Las Vegas being tangentially connected to the UFC. From the casinos to gyms to bars to even Rick Harrison’s Gold & Silver Pawn Shop, there hasn’t been someone who hasn’t been touched economically by the UFC and their business efforts to bring customers to the city.
The Cognitive Dissonance of the College Graduates
When we talk about college graduates, we’re not referring to political science or humanities majors here. We’re talking about economists, business administration majors, doctors, accountants, attorneys, and engineers.
In Vegas, UFC is part of an entrenched hometown business ecosystem. It’s an institution. UFC events are where to see and be seen. People aspire to be professionally connected or associated with UFC, especially with the company under the thumb of Ari Emanuel. The poors aren’t buying UFC tickets. Just take a good look at the ticket buyers for UFC 295 at Madison Square Garden.
Young professionals have future aspirations to be part of or associated with a community that includes an Elite institution, especially a publicly-traded one. With the sports boom in Las Vegas, you’re going to see more MBAs and JDs headed towards the desert from all of the major Ivy League schools. That’s where the action is.
It’s the local business class and system that UFC professionally represents in Las Vegas versus fighters asking for more money and opportunities to get punched in the face and limbs dislocated in submission holds. How are UFC fighters using combat sports to change society for the better?
That is the internal conflict that many younger college graduates with white collar office jobs will mentally struggle with if they’re on a jury for this type of case.
How will UFC’s attorneys appeal to these type of graduates? A road map can be extracted from years worth of court pleadings.
UFC will argue that without their genius, there would be no sport. It’s the Zuffa Myth on steroids. The business is so complex and complicated that only a professional managerial class could pull this off. Without the brains in the office, hundreds of fighters wouldn’t have received a paycheck. If UFC was keeping so much money away from the fighters, why didn’t the biggest super-agents from other sports enter into UFC contract negotiations? The argument against the fighters is that they didn’t demonstrate the smarts or the will to impose their agency within a system. They didn’t want to be “partners” in establishing a greater good.
UFC didn’t oppress the fighters. Look at what the UFC system did for equality in sports by promoting Ronda Rousey and Amanda Nunes in major marketing campaigns. How can the system be evil if it’s used to promote societal change?
This kind of surface-level argument may sound silly to you if you know the history of the fight business, but it’s the perfect pitch to younger college graduates who see themselves as educated professionals who have a habit of projecting the values they were taught onto others. I would have done this, so why didn’t X do the same thing?
Chael Sonnen x 1000
After the 9th Circuit Court of Appeals rejected UFC’s appeal over certification in the fighters’ class-action lawsuit, one individual has certainly raised the temperature online in terms of his vociferous defense of the way UFC has paid fighters.
Chael Sonnen has been on the attack. He’s directly confronted one of the attorneys in the case, Rob Maysey. Why should the UFC have to pay fighters more? Do you expect UFC to retroactively pay past fighters more for their fights when the company was losing $35 million dollars? Why should UFC pay fighters a similar percentage of revenue like other pro-sports leagues?
You may find some of his comments funny or offensive, but I find them to be very useful and instructive. Just not for the reasons he thinks.
Mr. Sonnen’s latest argument — that UFC is an entertainment operation first and a sport second — is exactly the kind of argument that the trial attorneys for the fighters should expect to see. If you can convince a jury that UFC fighters are no different than WWE wrestlers, then you can psychologically influence the jurors to see them as entertainers engaged in athletic activity rather than fighters who should be classified as real athletes. If you view fighters as real athletes, you would be more open to seeing them get paid a better percentage of revenue.
This is exactly the kind of prospective juror that the Plaintiff attorneys will encounter during voir dire. You cannot avoid this type of individual. They’re everywhere in Las Vegas. Rather than tuning them out or muting them on Twitter, I would absolutely study everything they say. It’s free clues. New-school law programs may be shielding their students from rigorously studying both sides of an issue but the old-school Socratic method works. Especially with this case, you’re going to have to have a really thick skin.
I would also suggest that the voices from individuals who see themselves as pro-UFC will get louder as we get closer to a trial date. Whether it’s a form of protest, of influencing a jury pool, or working over the media, there is a method to the madness. It’s also, unwittingly, an acknowledgement that people inside the business never thought this antitrust case would get as far as it has in the courts. They’re tipping their hand. Take advantage of the noise.
How does this relate to jury selection? It’s going to be a challenge to avoid prospective jurors who fall into this category.
There is going to be a healthy percentage of locals who believe that they know the fight business better than some of the parties involved in this case. They may be super fans or degenerate gamblers. Perhaps individuals who watch UFC Fight Pass and enjoy Nick Kalikas. Maybe they’re high-action gamblers and follow pros like Luca Fury or Fight Ghost. Hobbyists who train at 10th Planet and are avid listeners of Joe Rogan. Day-traders of or investors in TKO stock.
There will be a couple of jurors in this mold who will not only weasel their way onto this jury, but I guarantee you that one of them will somehow try to become the jury foreman.
But not all hope is lost just yet for the Plaintiffs.
The Culinary Union vs. The Fertittas
This is where the long-standing feud between two major political powerhouses could really come into play. There hasn’t been someone in Vegas who hasn’t been touched — for better and for worse — by UFC and the Fertitta family.
If you’re an old school MMA fan, you know the history between the Culinary Union and UFC. The fights not only in Vegas but also the political fights in Albany to stop UFC’s business advancement to MSG. The CU also petitioned the Federal Trade Commission to investigate the UFC for anti-competitive acts regarding the acquisitions of PRIDE, WEC, and Strikeforce. That letter, in retrospect, is worth your time to read. The FTC responded with a letter of clearance to UFC in 2012.
The American Economic Liberties Project in 2021 published a white paper outlining the FTC’s failure to address the Strikeforce acquisition and how it harmed the market for fighters. That paper was reviewed or featured oversight from Hal Singer, economist for the Plaintiffs in the UFC antitrust lawsuit, and Lina Khan — the current boss at the FTC.
The Culinary Union in Las Vegas is legally and politically sharp. They’re extremely active and a great megaphone to have on your side. They will be motivated to participate in any public relations efforts to boost the Plaintiffs, especially given UFC’s public embrace of former US President Donald Trump.
The fighting between CU and the Fertitta empire continues, as this recent Culinary Union press release demonstrates. On Monday, there were news reports of a massive Culinary Union strike with 35,000 workers preparing to walk out on the week of Formula 1’s long-awaited debut in Las Vegas.
The ghost of Harry Reid looms large. This is exactly the audience that could make or break jury selection for the fighters in the antitrust case.
Union employees may love watching UFC fights but they certainly won’t be receptive to the business tactics UFC has utilized to build their empire. They know labor containment strategy when they see it. Jurors who have some sort of direct or indirect connection to labor will likely be the most attentive and studious ones during a trial. They’ll be taking copious notes and will probably be the best advocates for the Plaintiffs during deliberations.
The three major jury questions facing the Plaintiffs
Whoever gets selected to be on this jury, there will be two or three dominant roadblocks that the Plaintiffs will encounter. Some of it has to deal with substantive issues but most of it deals with questions the attorneys will have to deftly address while allowing the jurors to connect the dots on their own accord.
- ‘It doesn’t affect me.’
This will be the biggest argumentative challenge for the fighters. Why should a juror care about how much a fighters make?
That’s your problem, not mine. You chose to be a fighter. How are you any different than a coal miner? You could have done something more productive in society. You chose to fight in the UFC for the purse they offered you. No one forced you to do this.
Remember the dilemma I mentioned earlier among the potential college graduates who could land on this jury? The fighters are going to have really personalize their struggles to the jury and establish some sort of emotional bond.
That’s always been the traditional model for Fight Business 101 – overcoming hardship. However, the UFC business model has turned that marketing principle upside down on its head. It’s about the company and survival of an industry they made very popular.
- ‘If UFC has to pay more to fighters, I’ll have to pay more for fights.’
This is the Fast Food wage argument on steroids.
“If you raise the minimum wage for fast food workers, you’ll be paying $20 for a Whopper. Then everyone will lose their jobs when AI and robots take over the drive thrus.”
The public face for this argument used to be Andy Puzder. Now there’s an army of TikTokers, Youtubers, and Twitterati who are posting viral videos with expensive fast food receipts.
I would fully expect UFC’s attorneys to take a similar kind of approach at trial. If we increase the revenue split with fighters, you’ll get less superfights and have to pay more for them.
There will be a lot of sympathetic ears for this argument. Why? Dana White’s bête noire, former Showtime Sports executive Stephen Espinoza, recently touted three $20 million boxing gates in six months. The last fight was a lopsided bout between Canelo Alvarez and Jermell Charlo.
Paramount then proceeded to dump Showtime Sports and PBC.
- Vice or Virtue?
No one wants to told that they are broken or what they support is broken.
You can lecture someone about smoking too much or drinking way too much alcohol. Maybe the person on the receiving end will acknowledge they have a problem. Rub it in that person’s face and yell at them about needing to change? You’ll promptly get a very loud F You. That person will do anything to shut down the conversation.
If jurors think that Plaintiffs are scolding or lecturing them for supporting UFC while the company is supposedly taking advantage of fighters, there’s a fair chance that jurors will bury their heads in the sand rather than do something about it. Inertia is a very powerful roadblock to prevent change.
This is going to be a challenge for the attorneys to convince jurors that fighters not getting paid a higher percentage of revenues is a problem for them personally.
Arguing for fighter salaries is different than, let’s say, asking a juror to throw the book at Phillip Morris or Altria over cigarettes and vaping. Yes, everyone knows what cancer sticks are but people still smoke them. Attorneys against those companies convinced juries that even though their personal vice of smoking was bad for them, it wasn’t their fault and therefore they had an opportunity to blame Big Tobacco.
It’s going to be hard to convince jurors that UFC ripped you off because they didn’t pay fighters enough money.
“OK, I know something is wrong here, but what am I supposed to do about it? How am I supposed to figure this out?”
You can only convince jurors to embrace the Hero Arc if they believe the defendant is a big, bad evil corporation. That is going to be a challenging sell in Las Vegas.
If your head is spinning after reading this article, good. It’s supposed to. This is what the attorneys on both sides of this case are preparing for. For a civil antitrust lawsuit, the politics and psychology of this case are remarkably combustible.
If you think the politics of jury selection are harrowing, wait until you see the fight over the substance of the actual antitrust claims.
That is what part two will focus on. Stay tuned.
About the author