Thoughts on UFC 249 and waiver controversies

Underground
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UFC 249 took place this weekend. The first major sport to get back to business following the Covid-19 public health related lockdown. A bold and controversial move. Despite one athlete being removed from the card after he and his cornermen tested positive for Covid-19 the event appears to have been a success with even the President of the US cutting a promotion cheering on the return of sports.
 
Being first to put on a sports event in the midst of an ongoing pandemic comes with heightened scrutiny. One the tools the UFC used to pull this event off was an “Event Participation Agreement” that Zuffa, the UFC’s parent company, required those in attendance to sign.  Or as MMA manager and California based lawyer Sam Spira called it “the most oppressive release and waiver in the history of civilization.“
 
There were layers of issues revealed as this matter came to light.  Here is a summary along with my thoughts on some of them –
 
Non Disparagement or Something More?
 
It all started with a tweet. Boxing promoter Stephen Espinoza noted that the lack of any participant criticism about health and safety protocols at UFC 249 was due in part to a heavy handed contract noting “It’s because they were required to sign a document which says that they can lose their whole purse and bonuses if they say anything negative about the COVID protocols.“
 
This brought a quick reply from UFC president Dana White who told Yahoo Sports Kevin Iole “It’s called an anti-disparagement clause and if I know what that is, that scumbag (Espinoza) is a lawyer and you would think he should know what that is…If a fighter says something that isn’t true — if he says we didn’t test anyone for this — that would [violate the agreement],” he said. “But if he said something that was true, his opinion, then that is different.”.
 
At the UFC’s post fight press conference White doubled down with this stance and his attack on Espinoza noting “First of all, there’s something in the contract for disparagement. There’s a disparagement clause in there that’s in all of our contracts. Isn’t that creepy little f*cker a lawyer? Isn’t that creepy little f*cking goofball a lawyer?  Does he not know what disparagement means? If you disparage the company. I’m not even a f*cking lawyer, and I know the answer to that question. It’s disparagement. It would be like if you came out and said, ‘They never tested me, the UFC never tested me for the coronavirus.’ But if you came out and had something critical to say about the testing that was true, that wouldn’t be disparagement.”
 
White’s stance does not tell the whole story. As the New York Times reported UFC 249 fighters could lose significant amounts of money if they “suggest or communicate” that the event is being held “without appropriate health, safety or other precautions.”
 
Frankly the whole clause speaks for itself. Yes it prohibits defamation and disparagement. The UFC does not need a contract for such legal protection. The common law prohibits such conduct by default. The controversy arises by what comes next with the contract stating “the Participant 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.“
 
Here is the full clause:
 
The Participant shall not, and shall cause its affiliates, agents and representatives not to, defame or disparage any of the Released Parties in any medium whatsoever in connection with the Activities. Without limiting the generality of the foregoing, the Participant 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.
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Media Silence
 
Fighters had to sign the agreement. But, as ESPN’s Marc Raimondi reported, “media in attendance” did as well.
 
When media landed the job to report on the first major sports event in a pandemic the controversy speaks for itself that signing a contract with the promotion they are covering to “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” is problematic. Health and safety protocols are of key public interest. These can resonate well outside the bubble of fans seeking coverage of the sport. It is hard to understand why any media in attendance would agree to such restrictions.
 
No Promises as to Safety
 
It is clear that the UFC took extraordinary health and safety measures over and above those that would be in place for a typical event. However, from an official perspective, no promises were made about these. The contract notes that,
 
“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…with respect to the Activities…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…or compliance with social distancing and other guidelines issued by the Center for Disease Control and Prevention (the “CDC”) or any other regulatory or self-regulatory organizations in respect of COVID-19 and that the Participant is engaging in the Covered Matters at the Participant’s own risk.”
 
Even Grandma Should Waive Her Rights
 
The broad contractual language of whose rights were purportedly waived was also noteworthy.
 
Fighters had to waive their right to sue “for any injury, illness, damage, loss or harm to any Releasing Party… 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 Activities, including, but not limited to, in connection with any of the Accommodations”
 
The contract asked that the Participant not only waive these rights for themselves but also waive these rights “on behalf of the Participant’s spouse, domestic partner, children, parents, grandparents, step-parents, step-children”.
 
A party to a contract cannot waive the rights of non parties and enforcement against this broad would be a problem but the heavy handed ask stands out.
 
Even Gross Negligence
 
Waivers often cover claims of negligence. This contract went further and sought to protect the UFC of even gross negligence. Specifically it included “any claims based on negligence or gross negligence that they may have against the Released Parties, as a result of any injury,
illness, damage, loss or harm to any Releasing Party or such Releasing Party’s property, or the Releasing Party’s death or disability, whether in connection with COVID-19.“
 
Consideration?
 
Normally a contract has something to offer for both parties. Here the parties waiving their rights gave up a lot. What did they gain in return? As the contract explains they were given the ability “TO ATTEND, PROVIDE SERVICES AT AND/OR PARTICIPATE IN UFC 249 AND OTHER EVENTS AND ACTIVITIES RELATED THERETO.”
 
Fighters under contract with the UFC have already contracted to participate at various events that the promoter will put on. One can question whether a contract this one sided that strips further rights is offering anything further in return for a combatant already under a promotional agreement.
 
via Combat Sports Law blog
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Thanks for posting.

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Talk about singing your life away...

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Bullshit

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No, wait Dana is a hero and such a good guy I thought?! He did this all for the fans, the fighters and the sport!! Everything is totally safe and the virus is a hoax. LOL What a fucking clown. Making fighter's families sign this shit is pathetic.

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I laughed watching for press conference when Dana call him a "creepy little fucker" with that incredulous look on his face. 

Dana makes me laugh sometimes, I'm okay admitting.

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Why did Dana get so triggered about it if he stands behind it? What are similar precedents of this nature? Even regarding “disparaging” talk about any corporation?

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I left a company and they tried to get me to sign something similar to pay out a severance. I didn't sign it because I got another job that paid me a 25% increase in base salary alone. Below is the language in one of the provisions on the contract that they wanted me to sign:

"In consideration of the Severance Payments and for other good and valuable

consideration described herein, receipt of which is hereby acknowledged, Employee of his own

free will, voluntarily releases and forever discharges the Company from any and all actions or

causes of action, suits, claims, charges, complaints, contracts, agreements and promises,

whatsoever, in law or in equity, that Employee, Employee’s heirs, executors, administrators,

successors and assigns have, may have or may in the future have upon, or by reason of any

matter, cause or thing whatsoever against the Company whether known or unknown, including,

but not limited to, any and all matters arising out of Employee’s employment at the Company or

Employee’s termination of employment, and including, but not limited to, any alleged violation

of Title VII of the Civil Rights Act of 1964, as , the Fair Labor Standards Act, the Family and

Medical Leave Act, the Americans With Disabilities Act, the Age Discrimination in

Employment Act, and any other federal, state or local civil or human rights or employment law,

or any other alleged violation of any local, state or federal law, regulation or ordinance, and/or

public policy, contract or tort law, that he ever had, now has or may have in the future, excepting

any obligations under this Agreement."

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cyberc92 - 

I left a company and they tried to get me to sign something similar to pay out a severance. I didn't sign it because I got another job that paid me a 25% increase in base salary alone. Below is the language in one of the provisions on the contract that they wanted me to sign:

"In consideration of the Severance Payments and for other good and valuable

consideration described herein, receipt of which is hereby acknowledged, Employee of his own

free will, voluntarily releases and forever discharges the Company from any and all actions or

causes of action, suits, claims, charges, complaints, contracts, agreements and promises,

whatsoever, in law or in equity, that Employee, Employee’s heirs, executors, administrators,

successors and assigns have, may have or may in the future have upon, or by reason of any

matter, cause or thing whatsoever against the Company whether known or unknown, including,

but not limited to, any and all matters arising out of Employee’s employment at the Company or

Employee’s termination of employment, and including, but not limited to, any alleged violation

of Title VII of the Civil Rights Act of 1964, as , the Fair Labor Standards Act, the Family and

Medical Leave Act, the Americans With Disabilities Act, the Age Discrimination in

Employment Act, and any other federal, state or local civil or human rights or employment law,

or any other alleged violation of any local, state or federal law, regulation or ordinance, and/or

public policy, contract or tort law, that he ever had, now has or may have in the future, excepting

any obligations under this Agreement."

Like I have read criticizing the UFC clause, is that legal above? Like can there ever be a clause or whatever that prevents you from being able to sue a company for anything whatsoever?

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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.”

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WaltJ - 

I laughed watching for press conference when Dana call him a "creepy little fucker" with that incredulous look on his face. 

Dana makes me laugh sometimes, I'm okay admitting.

Good for Dana for distracting from the task at hand then.

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Can't believe I bought into Dana's BS. I'M AN EGG

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Wasa-B -
WaltJ - 

I laughed watching for press conference when Dana call him a "creepy little fucker" with that incredulous look on his face. 

Dana makes me laugh sometimes, I'm okay admitting.

Good for Dana for distracting from the task at hand then.

Good for the fighters for consulting contract law attorneys prior to signing contracts and waivers.

If the UFC is such a historically unfair and shitty place to work, maybe people shouldn't be signing contracts, no?

They 100% stack the deck and perpetrate underhanded shit, but the fighters still choose to go there.

Me finding Dana's reaction funny doesn't mean I'm not aware of the gravity of the situation or that I endorse what they did.

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WaltJ - 
Wasa-B -
WaltJ - 

I laughed watching for press conference when Dana call him a "creepy little fucker" with that incredulous look on his face. 

Dana makes me laugh sometimes, I'm okay admitting.

Good for Dana for distracting from the task at hand then.

Good for the fighters for consulting contract law attorneys prior to signing contracts and waivers.

If the UFC is such a historically unfair and shitty place to work, maybe people shouldn't be signing contracts, no?

They 100% stack the deck and perpetrate underhanded shit, but the fighters still choose to go there.

Me finding Dana's reaction funny doesn't mean I'm not aware of the gravity of the situation or that I endorse what they did.

C’mon, man. You know that the UFC has a huge amount of control over the market.

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wiggum - 
WaltJ - 
Wasa-B -
WaltJ - 

I laughed watching for press conference when Dana call him a "creepy little fucker" with that incredulous look on his face. 

Dana makes me laugh sometimes, I'm okay admitting.

Good for Dana for distracting from the task at hand then.

Good for the fighters for consulting contract law attorneys prior to signing contracts and waivers.

If the UFC is such a historically unfair and shitty place to work, maybe people shouldn't be signing contracts, no?

They 100% stack the deck and perpetrate underhanded shit, but the fighters still choose to go there.

Me finding Dana's reaction funny doesn't mean I'm not aware of the gravity of the situation or that I endorse what they did.

C’mon, man. You know that the UFC has a huge amount of control over the market.

Indeed. And when signing with giant companies, it’s basically a “take it or leave it” situation. With smaller companies, you can negotiate. Here can the fighters except for the biggest names?

I seriously despise that it’s almost the norm that giant companies can pull such shit. No you are not forced to sign but come on.

BTW the contract seems and IS one sided, but no doubt the fighters get in return major exposure, promotion, visibility, and for some, a lot of money. It’s just excessive lawyer stuff. I’m sure the UFC treats them well, but then when it’s contract time, the wording is almost humiliating.

If it was worded like Dana said, don’t disparage or say false shit, any sane person would agree. Now it goes way beyond that. Lawyer driven society.

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Sprawl'n'Stall - 
wiggum - 
WaltJ - 
Wasa-B -
WaltJ - 

I laughed watching for press conference when Dana call him a "creepy little fucker" with that incredulous look on his face. 

Dana makes me laugh sometimes, I'm okay admitting.

Good for Dana for distracting from the task at hand then.

Good for the fighters for consulting contract law attorneys prior to signing contracts and waivers.

If the UFC is such a historically unfair and shitty place to work, maybe people shouldn't be signing contracts, no?

They 100% stack the deck and perpetrate underhanded shit, but the fighters still choose to go there.

Me finding Dana's reaction funny doesn't mean I'm not aware of the gravity of the situation or that I endorse what they did.

C’mon, man. You know that the UFC has a huge amount of control over the market.

Indeed. And when signing with giant companies, it’s basically a “take it or leave it” situation. With smaller companies, you can negotiate. Here can the fighters except for the biggest names?

I seriously despise that it’s almost the norm that giant companies can pull such shit. No you are not forced to sign but come on.

BTW the contract seems and IS one sided, but no doubt the fighters get in return major exposure, promotion, visibility, and for some, a lot of money. It’s just excessive lawyer stuff. I’m sure the UFC treats them well, but then when it’s contract time, the wording is almost humiliating.

If it was worded like Dana said, don’t disparage or say false shit, any sane person would agree. Now it goes way beyond that. Lawyer driven society.

Yup. Good fighters don’t have much room to bargain. They need a union and/or the breaking up of the UFC’s monopsony.

Athletes in team sports like baseball don’t deal with this as much because privately owned teams have to compete for athletes.

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MMA managers suck if they aren’t consulting with lawyers before allowing fighters to sign agreements like this.

Bottom line is if fighters didn’t agree, the UFC wouldn’t be able to pull this garbage.

I’m not sure if it’s just a case that the UFC has always been shady and now that they’re as public as ever it’s coming out, or perhaps this is more related to the current owners way of business.

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They cut an entire teams worth of guys when they refused to sign the video game deal.

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Ministry of Truth - MMA managers suck if they aren't consulting with lawyers before allowing fighters to sign agreements like this.

Bottom line is if fighters didn’t agree, the UFC wouldn’t be able to pull this garbage.

I’m not sure if it’s just a case that the UFC has always been shady and now that they’re as public as ever it’s coming out, or perhaps this is more related to the current owners way of business.

Incredibly hard to do unless you are (1) a Conor level star or (2) in a union or association.