UFC Antitrust Case On ‘Fast Track’ For Trial Early Next Year

After taking five-and-a-half years to resolve class certification, the judge in the UFC antitrust lawsuit revealed he intends to turn on the afterburners going forward. At a Monday afternoon status conference, U.S. District Judge Richard Boulware of Las Vegas, NV informed representatives from the UFC and the plaintiff fighters that he’s giving priority to this case going forward and wants to hold a trial in March or April of next year.

For a case that had essentially been in a holding pattern for years, it all the sudden has an exceptionally aggressive schedule going forward, should the UFC be unsuccessful in its appeal efforts. The promotion will file its petition to appeal Boulware’s class certification order on Wednesday, plaintiffs will have 10 days to reply, and then the U.S Court of Appeals for the Ninth Circuit will have 90 days to decide if it will accept the UFC’s petition.

During the conference, it initially seemed as if Boulware was going to pause all case proceedings until after the Ninth Circuit had decided to either accept or reject the petition, but by the end it was clear both cases will move forward until the appeals court hands down a firm decision. There are two antitrust cases currently filed against the UFC. The first, known as Le et al., covers purported UFC anticompetitive conduct from December 2010 through June 2017. The second, Johnson et al., covers essentially the same conduct but from July 2017 to the present.

“Le will be tried next year,” Boulware told participants as Cung Le sat in the gallery listening. “I want to put this case on a fast track for trial.”

When asked how long they anticipated a trial would last, both sides agreed it would take roughly 4-5 weeks. The moment was a breath of fresh air, as one of the few times the two sides have agreed on anything in this almost nine-year-old case.

In a moment that created audible gasps in the courtroom, Boulware informed participants that all court records previously subject to a protective order would be unsealed. “It would be the entire case,” he said. But they won’t be unsealed immediately as each side has until October 31 to present their version of the court record with only limited redactions for fighter health information, phone numbers, and email addresses.

In other notable moments, plaintiffs revealed that when the time comes to discuss injunctive relief, they’ll ask Boulware to eliminate what they believe are restrictive UFC contract clauses “or pair them back substantially.” These are terms in fighter promotional agreements involving contract length, tolling provisions, retirement, and the Champion’s clause that plaintiffs claim served as artificial barriers to entry helping to foreclose rival MMA promoters.

For the Johnson case, plaintiffs said they’ll “seek to vacate” terms added to more recent UFC fighter contracts imposing arbitration for disputes and restricting participation in class action lawsuits. If fighters are contractually prohibited from participating in the Johnson class action, it won’t be much of a case.

Outside of a trial date, the big news is that both Johnson and Le will both start moving forward again. For Johnson, a case that had been paused pending Boulware’s class certification order and the UFC’s inevitable appeal, the sides are to present their discovery plans by Sept. 19. For Le, the UFC’s motions to re-open discovery and for summary judgment are due on October 24.

The timing of the Le deadlines on the same day is a bit peculiar since the UFC wanted to update discovery on third-party competitors such as Bellator and PFL for “merits based” arguments in its summary judgment motion – where the whole case could be dismissed if Boulware were to find that no reasonable juror would ever side with the plaintiffs. Boulware’s timing would seem to hinder that, and at one point UFC attorneys began talking about their due process rights. They want the additional discovery to develop the record around the competitive landscape of MMA, arguing that competition is healthy and barriers to entry are low for other promoters.

While summary judgment is an important threshold where the entire case could go away, after the combination of Boulware’s recent class certification order and today’s hearing it seems as if the UFC chances of prevailing are likely are much lower. Boulware appears to have already made up his mind about issues such as monopsony power, barriers to entry, and foreclosure of competition. And it’s not clear he truly understands what foreclosure of competition is, tending to focus more on fighter career length rather than MMA competitors.

As things stand now, it would seem the UFC’s best and last hope to avoid a fast-tracked trial is to get out of Boulware’s courtroom. This means the Ninth Circuit accepting its appeal petition and prevailing in front of different, more seasoned judges. Boulware was a relatively new federal judge when this case began, and he mentioned on Monday that should his order not be affirmed, the Ninth Circuit would likely either vacate it entirely or send it back to him with questions, probably necessitating additional discovery.

So a trial that should capture the attention of the entire MMA community could happen early next year, unless the UFC’s appeal is accepted. In that case, Le would essentially go back into a holding pattern while the appeal plays out in what Boulware has previously said could be a 2-3 year process. While one would suspect the Johnson lawsuit would pause as well, it wasn’t clear from the conference what Boulware would do to the newly initiated discovery process.

What is clear: The UFC antitrust case is finally moving again… and moving fast.