LAW360 Problems in the 'Fight of the Century'

As published in LAW360

Problems In The 'Fight Of The Century' Class Actions

Law360, New York (May 19, 2015, 10:10 AM ET)

Ever since this complaint was shouted into the ringside mic after a title fight, complainers from the hard court to Broadway have recycled it. Who hasn’t paid to watch an event and been disappointed? But is this really the stuff of lawsuits? Can aggrieved pay-per-view customers sue Manny Pacquiao and his corporate constellation for his performance in the overhyped “Fight of the Century” against Floyd “Money” Mayweather? Precedent firmly says “no.”

Most of these losing lawsuits have been filed by ticket holders. When the New Jersey Nets traded Julius “Dr. J” Erving to the Philadelphia 76ers immediately before the 1977 season tip-off, season ticket holders sued. The court knocked them out, ruling that a ticket guarantees a seat and nothing more — there’s no guarantee to either a James G. Sammataro satisfactory performance or the right to see specific individuals perform.

This Dr. J doctrine has been applied to knockout out a string of sour ticket holders who cried that: that Roger Goodell’s capricious Bounty Gate suspensions devalued New Orleans Saints’ season tickets; that Spy Gate cheapened the value of Jets-Patriots games; that San Antonio Spurs’ failure to play its aged superstars harmed Miami Heat ticket holders; and that generational incompetence by the Cleveland Browns and Chicago Cubs entitled fans to class action damages. The amusing Cubs ruling stated clearly that the team’s status as “the doormat of the National League [does] not entitle the ticket holder to a refund for the remaining games any more than the star tenor’s laryngitis entitles the opera goer to a refund when the understudy takes over the role.” The Browns ruling noted the impossibility of drawing a workable line: “to allow such a recovery would enable any ticket holder not satisfied with the performance of whatever entertainment the ticket procured to seek a refund for such a subjective and unreasonable response.” Turns out, you’re not entitled to any more from your couch: Pay-per-viewers are only entitled to the right to watch, not the right to watch something worthwhile. Pay-per-view whiners have already been KO’d when they sued after Tyson’s third-round ear-chomping disqualification in the (last) fight of the century against Evander Holyfield. That court ruled that the purchasers merely paid for the right to “view whatever transpired.”

So if the law is so well settled, why have more than a dozen putative class actions been filed in eight states alleging that Manny Pacquiao committed fraud? Something stinks here. Actually, several things stink here.

First and most obviously, there’s a staggering pot of gold here, including a now estimated $400 million in pay-per-view (far exceeding the $300 million target) and $72.2 million from the live gate. Pacquiao’s lackluster hour will net him a fortune somewhere north of $170 million. Under the current class action laws, why not take a stab at it? No one walks away richer than the lawyers if they settle or win.

Second, the lawsuits have huge factual and legal problems beyond the Dr. J doctrine.

The main beef is that Pacquiao failed to make a required pre-fight injury disclosure to the Nevada Athletic Commission by checking “no” on a medical form, signed under the penalty of perjury, inquiring if he has had “any injury to your shoulders, elbows or hands that needed evaluation or examination.” As supporting evidence, the plaintiff’s lawyers point to Pacquiao’s 20 percent punches-landed rate and post-bout comments that his shoulder was roughly 60 percent before the fight and that he expected a fight night injection of the anti-inflammatory Toradol for full range of motion. Guess what? Thirty-seven-year-old pro fighters like Pacquiao with a history of 65 blazing pro fights are known in boxing circles as “shopworn” and are simply going to fight with some substantial wear and tear. One 60 percent shoulder ain’t bad. Further, given how Mayweather’s freakishly adept defense has limited his opponents’ punches-landed to a historically stingy average of 16 percent, Pacquiao’s 20 percent punches-landed rate is, in fact, admirably above the average.

But there’s a third problem at the heart of these lawsuits. After the bout, Pacquiao acknowledged his shoulder difficulties and said that he decided to nonetheless soldier on so as to not disappoint the fans. That’s what a pro pugilist does. On HBO’s boxing, Max Kellerman succinctly nailed it: “He manned up.” Kellerman diagnosed Pacquiao’s dilemma between two bad choices: Fight at less than 100 percent, or postpone the fight for at least a year and maybe forever:

When all the tickets have already been sold, the hotel rooms have been booked, the airfare, etc., the eyes of the boxing world

hoping to see this fight and this event. What did Manny Pacquiao do? He manned up. He said, "If I can get a shot a toradol in my shoulder, I can go through with this fight. I think that gives me the best chance to win."

Should our society tolerate the punishment of fighters for manning up and fighting? At least when ancient Rome was in decline they let the gladiators stomp the sand and do their duty, regardless of the wounds visible or hidden.

To all of the complainers out there:You watched; you were disappointed; OK maybe on some level you was robbed. But take some responsibility here. Man up. This is boxing, the sport with perhaps the richest history in shady dealings, from “palookas” and “tomato cans” paid to “take a dive,” to almost everything Don King has done, including electrifying his hair like the Bride of Frankenstein in order to distract you from his unscrupulous promotions. Against such industry standards, Pacquiao deserves a ticker-tape parade for getting in there and giving what he had. You are not suing about the fraud; you are suing because these fighters just pulled down hundreds of millions of smackeroos each for a non-entertaining fight and it stings you like a sucker punch to the liver. So take a tip from a lawyer: Be more like Mayweather and play some defense. The arena is around your wallet, not in the courtroom. Don’t buy the next pay-per- view and don’t scour StubHub for the best in-person experience. Just don’t complain when you miss something worth watching.

By James G. Sammataro, Stroock & Stroock & Lavan LLP.

James Sammataro is a partner in Stroock's Miami office. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients. Or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [Bio]