Not Revealing Serious Physical Injury Prior to a Boxing Match is Just Strategic
by Jerry Glover
October 5, 2017
It probably goes without saying that from time to time people can get very upset about the outcome of a sporting event whether its football, baseball, tennis, golf, boxing, etc. But what if in, say, a boxing match one of the players comes to the ring with a serious injury he/she has not revealed publicly. That injured fighter goes on to lose the battle. Once the facts about the fighter’s injury become known, should someone who spent a lot of money to attend the match not only have the right to be upset but also the right to sue the fighter? A federal court in California recently said no. Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation, 122 F. Supp. 3d 1372 (C.D. Cal. August 25, 2017).
This case arose from the heavily touted 2015 fight between Manny Pacquiao and Floyd Mayweather. Pacquiao had suffered a serious rotator cuff tear about a month before the fight. It left him with the inability to punch with his right hand. He did not reveal this publicly. When it was revealed he had stopped conducting sparring sessions, his head trainer stated that this was designed to reduce the risk of Pacquiao burning out or peaking too early. When it was reported he was training primarily with his left arm, his trainer said jokingly that “we’re at a point when Manny could beat [Mayweather] with his right arm tied behind his back.” Pacquiao’s team advertised the match as the “Fight of the Century.” His inner circle claimed they had never seem him in better shape, claiming “his speed is faster, his punches are harder.” Right before the fight even Pacquiao claimed he was feeling “good and ready” noting there was nothing unusual about his training regimen. Pacquiao did not reveal his injury on a Nevada State Athletic Commission Pre-Fight Medical Questionnaire completed the day before the fight.
HBO had covered the bought and the training that led up to it. It was claimed that HBO knew about the shoulder injury although HBO never disclosed it.
It was even claimed that Mayweather knew about the injury because he boasted he had a mole in the Pacquiao training camp. But Mayweather did not disclose the injury and, like Pacquiao, continued to promote the fight.
Pacquiao revealed his injury to the boxing commission on the day of the fight. He did so hoping he would get approval for an anti-inflammatory cortisone injection. But the commission denied his request.
To say that the match was lackluster would be an understatement. The court noted that after 12 “long” rounds the three judges declared Mayweather the winner. After the fight Pacquiao revealed his injury to the general public admitting he was “not 100%” during the fight.
The plaintiffs in this lawsuit claimed they were induced to buy tickets, pay-per-view subscriptions and closed-circuit-distributorship rights because of the defendants’ misrepresentations and omissions. Here, plaintiffs alleged violation of various state consumer protection laws that punish unfair or fraudulent business practices.
The district court noted that courts have long been reluctant to recognize a sports fan’s “post-event disappointment” as a legal injury the courts would recognize. The court explained that it relied on what is known as the “license approach” to determine what, if any, legal rights are associated with the purchase of a ticket to see a sporting event. The license approach gives the purchaser of a ticket to a sporting event nothing more than a revocable license to view whatever transpires at the event, regardless of prior promises or representations about the performance. The California court cited a 1994 decision from our own Seventh Circuit (Seko Air Freights, Inc. v. Transworld Sys., Inc., 22 F.3d 773 (7th Cir. 1994)) which concerned the abysmal record of the Chicago Cubs at that time. The Seventh Circuit noted that even if the Cubs “turn out to be the doormat of the National League” that would not entitle ticket holders to a refund for remaining games. The court compared the Cubs losing streak to an opera star with laryngitis whose role is undertaken by an understudy. In that situation, the court noted, opera goers would not be entitled to a refund. But did the level of misrepresentation in the Pacquiao matter constitute a cognizable legal injury?
The court noted a number of sports cases all of which ruled against the plaintiff sports fan using the license approach:
–Another Seventh Circuit Case: Fans sued Formula One race organizers after they failed to disclose publicly that 14 of the 20 cars slated to race would not participate due to disqualifications even though Formula One knew about it in advance. The plaintiffs claimed that with so few cars in the race it became boring. The court held that ticket holders had no right to see an exicting race or one where drivers competed well. Bowers v. Fed’n Internationale de l’Automible, 489 F.3d 316 (7th Cir. 2007).
–Fans sued after the infamous Mike Tyson/Evander Holyfield fight which concluded with Tyson being disqualified for biting off a piece of Holyfield’s ear. The plaintiffs claimed Tyson had a “premeditated plan” to end the fight by disqualification if it looked like Tyson might lose. The court concluded that the plaintiffs received what they paid for—the right to view whatever event transpired. Castillo v. Tyson, 268 A.D.2d 336 (App. Div. 2000).
–And of course, the “Spygate” scandal where the New England Patriots surreptitiously video-recorded their opponents’ sideline signals in violation of NFL rules. Plaintiffs claimed they bought tickets with the condition that the game would be played honestly. But the court held that, at best, the fans possessed nothing more than a contractual right to a seat to watch the game from. The court in this case noted that a ruling any other way would open the floodgates to litigation from fans disappointed with the slightest things if their teams failed to win. Mayer v. Bellichick, 605 F.3d 223 (3d Cir. 2010).
The California court pointed out, however, that some sports cases were not decided under the license approach. In those cases sports teams lied to fans in order to boost season-ticket sales. For example, a court allowed fans to sue the L.A. Rams who misrepresented their plans to relocate the team to another city in order to increase season-ticket sales for what was to be their last season in LA. In Ohio, another court allowed fans to sue the Cleveland Browns who also misrepresented the teams’ intention to relocate to another city just to increase ticket sales. In a third case fans were entitled to damages after a hockey team, in an attempt to boost ticket sales, lied to fans about the team’s financial ability to finish the season but then shut down after only 13 of the 40 home games had been played.
So the court in this case had to decide whether the Pacquiao matter was closer to the cases using the licensing approach and denying fans the right to sue or to those cases where teams had lied or mispresented a material fact in order to boost ticket sales. The court concluded that the license approach should be applied here because the misrepresentations and commissions by the Pacquiao team “implicate the core of athletic competition.” What does that mean? The court explained that the core of athletic competition is implicated if it is related to either a competitive strategy or the quality or outcome of competitive performance and the rule applies no matter who is making the misrepresentation. The court noted that the cases where teams had lied to fans to increase ticket sales did not concern the core nature of athletic competition. They represented business strategy. They did not implicate the quality or outcome of athletic performance, but were concerned with business outcomes.
The district court cited two policy considerations that it believed supported the license approach to this case: the role of sports in American society and the essential nature of competitive sports and sports fans. As to sports’ role in society, the court quoted writer Richard Gilman who noted that sports play a role in “crafting America’s shared civic identity” which fans “suffer with, draw strength from and generally share in the vicissitudes and personas of modern day champions.” The court also noted that the outcome of competitive sports competitions is always at least somewhat uncertain, strategies are ever-changing and the quality of performance at any given event is consistently unpredictable. Consequently, sports fan bear the risk of the unexpected happening, the court concluded.
Apply these rules and policies to the Pacquiao matter the court stated that any misrepresentations and omissions from the competitors or their representatives all implicate the core of athletic competition. Therefore, under the license approach, the plaintiff’s claims were dismissed. The court opined that fans were not without a remedy: they could demand that fighters be more transparent, they could lobby their state athletic commissions to impose more stringent pre-fight medical screenings and disclosure requirement. Or they could simply stop watch boxing altogether.