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Week In Review

By Chris Helsel

Undisclosed Manny Pacquiao Injury Spurs Slew of Lawsuits

Last weekend's record-shattering Welterweight boxing title fight between Floyd Mayweather and Manny Pacquiao, dubbed "The Fight of the Century," failed to live up to many viewers' expectations. Several of these disappointed customers are now bringing their qualms to their local courthouses.

In the ring, Mr. Mayweather emerged victorious in a 12-round unanimous decision. In the week that has followed, a total of 13 lawsuits have been filed by disgruntled viewers after the revelation that Mr. Pacquiao failed to disclose an existing shoulder injury prior to the bout.

The controversy stems from a prefight questionnaire Mr. Pacquiao filled out for the Nevada State Athletic Commission, on which the Filipino boxer checked the "no" box in response to the question, "Have you had any injury to your shoulders, elbows or hands that needed evaluation or examination?" In fact, Mr. Pacquiao had injured his rotator cuff during training and was receiving treatment, a detail not admitted until after the fight. Following the bout, Mr. Pacquiao indicated that although the injury had been healing well, he reinjured his shoulder during the fourth round, after which time his right hand was mostly ineffective. He estimated that going into the fight, he was fighting at only 60% of where he would normally be.

Mr. Pacquiao had surgery to repair his rotator cuff earlier this week, and is expected to make a full recovery in time for a possible rematch with Mr. Mayweather in about a year's time. No rematch has been officially announced, but both parties have indicated a willingness to entertain the idea.

Of the 13 suits, five seek class certification on behalf of pay-per-view subscribers who feel they were duped. All of the class actions seek more than $5 million in damages and claim that those who paid to witness a fair fight were defrauded under various states' deceptive trades acts.

Paul Mahoney, who paid $99.95 to watch the fight, brought suit in California state court this week, alleging that "Pacquiao's injury unquestionably materially, significantly and negatively affected the quality of the product."

The first suit filed, which was brought on Tuesday in Nevada state court, also seeks compensation for ticket buyers and even gamblers who laid bets on Mr. Pacquiao without knowledge of his ailing shoulder.

Another suit, filed in Illinois, names not only Mr. Pacquiao, his manager and promotion company, but also Mr. Mayweather, his production company, fight producers HBO and Showtime and pay-per-view providers AT&T, Comcast and DirecTV - all of whom, the suit alleges, were implicit in perpetrating the fraud. Said the attorney for the Illinois plaintiffs, "Our state has a law that prohibits concealing or misrepresenting material information with consumers and, within the context of boxing, Manny Pacquiao's shoulder injury is a material fact."

Now, the courts must decide whether consumers pay specifically for a fair fight or whether they simply pony up to see the fight to take place.

For their parts, Mr. Pacquiao and Mr. Mayweather (and the cable companies, and everyone else involved) had great incentive to go forward with the bout despite the injury. The fight produced an estimated $72 million in arena ticket sales, $15 million in closed-circuit ticket sales and $300 million in pay-per-view revenue, with Mr. Mayweather and Mr. Pacquiao themselves expected to rake in $180 million and $120 million, respectively, for their efforts.

In addition to the lawsuits, Mr. Pacquiao also faces possible sanctions from the Nevada Athletic Commission for his failure to disclose the injury.

Finally, the megafight has also garnered another unrelated lawsuit. This one, filed in Missouri, seeks damages from Charter Communications stemming from a cable outage that prevented St. Louis-area pay-per-view subscribers from viewing the fight for which they paid.


National Football League's Wells Report Finds That Patriots QB Brady Was "Probably" Aware of Ball-Deflating Scheme

As discussed in a previous edition of "Week in Review," the New England Patriots (Patriots, club) of the National Football League (NFL, league) came under fire following its 2015 American Football Conference (AFC) championship victory over the Indianapolis Colts in January for allegedly tampering with the game balls used while its offense was on the field. Specifically, the team was accused of deflating the balls below the level allowed under league rules in order to allow star quarterback Tom Brady to achieve a firmer grip.

Now, an exhaustive NFL-ordered report by Paul Weiss partner Ted Wells has found that a preponderance of the evidence suggests that the club did in fact deliberately and improperly manipulate the game balls - and that Mr. Brady was probably in on the scheme.

The issue first came to the NFL's attention one day prior to the game, when Colts general manager Ryan Grigson sent an email to league officials asserting that the Patriots' practice of tampering with game balls was well known. Apparently, the Colts became aware of the issue during the team's 2014 regular season matchup, when a Colts defender who intercepted two of Mr. Brady's passes reported that the balls felt "spongy or soft when squeezed." Mr. Grigson's email contended that "it is well known around the league that after the Patriots' game balls are checked by the officials and brought out for game usage the ballboys for the [P]atriots will let out some air with a ball needle because their quarterback likes a smaller football so he can grip it better." The email also requested that the Patriots' balls be checked for proper inflation throughout the course of the game.

Prior to the game, the referees checked and verified the air pressure of the game balls provided by both teams. According to the report, after the officials' inspection but prior to kickoff, Patriots locker room attendant Jim McNally broke protocol by heading out to the field, alone, with the bag of approved balls. On his way, security video footage shows him ducking into a small bathroom with the bag and remaining inside the locked room for 90 seconds.

At halftime, the balls were re-tested. Ten of the 11 balls provided by the Patriots were found to be under-inflated.

The story broke the next day. In the days that followed, Mr. Brady, Patriots head coach Bill Belichick and team owner Robert Kraft all vehemently denied any wrongdoing, with Mr. Kraft in particular stating that he expected an apology from the league office for the unfounded allegations.

The NFL then commissioned Ted Wells, a prominent litigator based in New York, to conduct an investigation. The 243-page Wells Report was finally released this week. In the report, Mr. Wells identifies Mr. McNally and Patriots equipment assistant John Jastremski as the main culprits in the scheme.

The report points to Mr. Jastremski's cell phone records, which include text message conversations with Mr. Brady and Mr. McNally, as evidence of the ball-tampering scheme. In message to Mr. Jastremski, Mr. McNally refers to himself as "the deflator." In another exchange, Mr. McNally, who was apparently frustrated with Mr. Brady's insistence that the balls be perfect, vowed to Mr. Jastremski that "the only thing deflating Sun(day)... is his passing rating."

During a game in October, Mr. Jastremski texted Mr. McNally to tell him that "Tom (Brady) is acting crazy about balls." The following morning, Mr. McNally wrote to Mr. Jastremski, "Tom sucks...I'm going (to) make that next ball a (expletive) balloon." To this, Mr. Jastremski replied, "Talked to (Mr. Brady) last night. He actually brought you up and said you must have a lot of stress trying to get that done."

When speaking with investigators, Mr. Brady claimed not to know who Mr. McNally was - a narrative that the above texts make very difficult to believe.

Additionally, despite no telephone or text communication between the two during the previous six months, Mr. Brady and Mr. Jastremski traded numerous messages and spoke on the phone six times over a three-day period immediately after suspicions of ball tampering became public on January 19th. In one exchange, Mr. Brady asks Mr. Jastremski, "You good Jonny boy?" to which Mr. Jastremski responds, "Still nervous; so far so good, though." That same day, Mr. Jastremski and Mr. McNally spoke on the phone for nearly an hour.

Mr. Jastremski's cell phone, which is the property of the Patriots, was made available to investigators by the club. Mr. Brady, however, refused to provide his personal phone records, which was noted with disfavor by the report. The NFL investigators, without subpoena power, could not legally compel Mr. Brady to hand over his phone.

Ultimately, the Wells Report concludes that it is "more probable than not" that Mr. Jastremski and Mr. McNally "were involved in a deliberate effort to circumvent the rules by releasing air from Patriots game balls after the examination of the footballs by NFL game officials at the AFC Championship Game" and that "it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady's knowledge and approval."

The question now is how NFL commissioner Roger Goodell will choose to discipline Mr. Brady and/or the Patriots organization. The NFL proudly goes to great lengths to ensure that the integrity of its on-field product is not compromised, and that no team or player can circumvent the rules to gain an unfair advantage - no matter how slight that edge may be. In keeping with those efforts, the league often issues heavy-handed punishments even for seemingly minor infractions which could affect the public's trust in the integrity of the sport. For instance, in 2007 the Patriots and head coach Bill Belichick were fined a total of $750,000 and stripped of a first round draft pick for illicitly filming the New York Jets' sideline defensive signals.

According to media reports, the NFL is expected to respond to the Wells Report sometime next week. It is expected that the punishment handed down will be stern and swift - and then followed by the inevitable appeal and likely appointment of a neutral arbitrator to finally decide the matter. Possible punishments include fines, loss of draft picks, or suspension. While most pundits are predicting that Mr. Brady will be suspended for four games or so (out of a 16-game season), a league source indicated this week that he could be suspended for up to a full year. "Everything is being considered," said the source.

In addition to his apparent complicity in the ball deflation scheme, Mr. Brady may also face the wrath of the commissioner for his refusal to fully cooperate with the investigation, as noted above. While Mr. Brady's agent explained to the media that the quarterback's decision to withhold his personal phone records was for fear of setting a dangerous precedent, league rules require complete cooperation with investigations. Specifically, the NFL's Policy on Integrity of the Game & Enforcement of Competitive Rules states, "Failure to cooperate in an investigation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline."


Mark Ronson/Bruno Mars Hit "Uptown Funk" Adds Five Writing Credits

Following the March jury verdict awarding the family of Marvin Gaye over $7 million from the "Blurred Lines" writing team for using elements of Mr. Gaye's "Got to Give it Up" without permission, industry commentators expressed concern that the decision might kick off a rash of legal battles over contemporary songs borrowing their sounds from the hits of yesteryear.

Now, in an apparent attempt to avoid similar litigation, another recent chart-topping tune has tacked on additional writing credits to acknowledge the inspiration provided by a golden oldie. On Friday, the record label RCA officially added five writing credits to the recent Mark Ronson smash hit "Uptown Funk," which features Bruno Mars on vocals. The added writers penned the Gap Band's 1979 track "I Don't Believe You Want to Get Up and Dance (Oops, Up Side Your Head)," which features a similar sound to "Uptown Funk." The five new writers join the six already credited, bringing the total to a whopping 11 for the four-minute song.

The decision to award the additional writing credits resembles the January agreement among Sam Smith, Tom Petty and Jeff Lynne to grant the latter two artists writing credits for Mr. Smith's 2014 hit "Stay With Me," which featured a similar chord progression to Mr. Petty's 1989 track "I Won't Back Down."

RCA and representatives for Mr. Ronson declined to comment, but the manager of one of the originally-credited writers described the reason for adding five writers to "Uptown Funk" thusly: "Everyone is being a little more cautious," he said. "Nobody wants to be involved in a lawsuit."


HBO Not Liable for Defamation in Mitre Sports Suit

On Friday, a Manhattan federal jury cleared HBO of defamation claims stemming from a segment on "Real Sports", which accused UK-based soccer ball maker Mitre Sports of exploiting child labor in India.

The segment, entitled "Children of Industry," aired in October 2008 and featured video footage of young Indian children stitching Mitre soccer balls in squalid conditions. According to Mitre, more than a dozen companies produce soccer balls in the region featured in the section - yet only Mitre was named in the HBO exposé. The company also claims that numerous scenes in the segment were staged, with some children even being paid for their "performances."

After the verdict in favor of HBO was announced, jurors noted that they focused heavily on Mitre's boasts regarding its involvement with Sports Goods Foundation of India (SGFI, foundation), a collective whose mission is defined as "the prevention and rehabilitation of child labor in the sporting goods industry." The foundation's project director, Ravi Purewal, stated in a video deposition that SGFI monitors 3,300 families with young laborers to protect against child abuse. The foundation, however, only employs five monitors.

According to one juror, "That's not nearly enough monitors if you really care for the kids. It made us think that the companies in SGFI are more concerned about protecting their profits and that Mitre's more concerned about protecting its reputation (than actually preventing child abuse)."

HBO, which could have faced punitive damages if it had been found liable, celebrated the ruling. "We are delighted with the jury's decision, which confirms what we have said since the beginning of this legal proceeding in the fall of 2008: This case was without merit and the 'Real Sports' reporting was unimpeachable," the company said in a statement.


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This page contains a single entry from the blog posted on May 11, 2015 10:49 AM.

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