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The United States Court of Appeals for the Ninth Circuit is now in session.

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Please be seated.

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This is the time and place set for the argument in Hunt versus Zuffa.

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Mr. Hunt, can you hear us?

[00:00:36] Speaker 00:
Yes, Your Honor, I can hear you.

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All right, you may proceed.

[00:00:42] Speaker 00:
Good morning.

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My name is Mark Hunt.

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I'm representing myself.

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Now I please the court.

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My partner Fleur is here to assist me if required.

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The overarching basis of this appeal is in two parts.

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Part one is that the District Court erred in their decisions as summary judgment for the many reasons demonstrated in my briefs and that the District Court should have identified that my former counsel's lawyering was so far outside of the norm

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that it will be found to be inexcusable to have ignored the egregious incompetence, gross negligence, and misconduct.

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Part two is the egregious incompetence, gross negligence, and misconduct by former counsel.

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So Mr. Hunt, I hate to interrupt you, but here today, we cannot rule on whether or not your attorneys

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were competent in representing you.

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So what we're here for today is for you to tell us what evidence there was in the record that supported your argument that there was fraud perpetrated upon you and that you were the victim of a battery in the ring.

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That's where we're focusing today.

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Can I just say one quick thing, Mr. Hunt?

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You know, normally in a civil case, if you think your lawyer let you down, your remedy is to

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deal with your lawyer, and that means that you have remedies.

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You may have remedies.

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I'm not saying you do.

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I offer no opinion on that against your lawyer, but in a civil case, judges don't

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treat parties differently or give them a second bite at the apple because the lawyer that a person chose, hypothetically, may have done a poor job.

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That doesn't mean you don't potentially have a remedy.

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In a criminal case, things can be different because you're dealing with more significant issues involving loss of freedom.

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So I just wanted just to educate you a little bit on that issue.

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So forgive the interruption.

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So Mr. Hunt, could you tell us

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What in the records supports your claim that there was fraud perpetrated against you?

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In the answering brief, all the admissions of collusion, fraud aiding, and abetting, affirmed the hunt was damaged to his detriment, misleading practices,

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derivative aiding and abetting, assisted and encouraging listeners to ban substance use.

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These were all admitted in their submissions, in their answering briefs, sorry.

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Perhaps it would help if we heard from opposing counsel, and then you can come back and respond to what they said.

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Is that agreeable to you?

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Yes, Your Honor.

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I was about to say.

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Go ahead.

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If you have something else you'd like to tell us, please.

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I was just about to reserve the rest of my time for rebuttal.

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All right.

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All right.

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Thank you, counsel.

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I mean, thank you, Mr. Hunt.

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All right.

[00:05:07] Speaker 07:
Good afternoon, your honors.

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May it please the court.

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My name is Colby Williams.

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I represent Zuffa LLC, which also does business as the ultimate fighting championship.

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You may hear me refer to it as the UFC.

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I also represent defendant Dana White, the company's president.

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And I give Mr. Hunt credit for taking on the task of trying to argue pro se in front of an appellate court in this country.

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It's a very difficult task.

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And it's emblematic, I think, of his fighting spirit and his colorful personality that made him such a good fighter.

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But with all due respect, a colorful personality and a great fighting spirit is not enough to undo this summary judgment record.

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Mr. Hunt repeatedly, in his deposition below, admitted that he lacked any evidence to demonstrate a genuine issue of disputed material fact on the three remaining claims against my client, fraud, aiding and abetting, and civil conspiracy.

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I don't have a lot of time.

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Wasn't there a battery claim as well?

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Excuse me?

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Wasn't there a battery claim as well?

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There was, but the direct claim for battery is against Mr. Lesner.

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My clients were only included through the derivative aiding and abetting.

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So I don't have a lot of time.

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I won't go through everything.

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But a few highlights, I think, will demonstrate this fact.

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Let's start with fraud.

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Of course, it has to be proven by clear and convincing evidence.

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The first element of a fraud claim is that there has to be a material statement of or a false statement of material fact.

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The evidence is undisputed that Mr. Hunt communicated solely with Mr. White regarding his participation in UFC 200 and regarding Mr. Lesnar's drug testing.

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Well, Mr. Hunt,

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alleged that he was misled regarding exactly when the fight with Mr. Lesnar was finalized, when the UFC knew that Mr. Lesnar would be the opponent for Mr. Hunt.

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What's your response to that?

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Sure.

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That's a great question, Your Honor.

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June 3rd was when Brock Lesnar signed the bout agreement.

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That's not the question.

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The question is when did

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When was Mr. White aware that Mr. Lesner would be Mr. Hunt's opponent?

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Respectfully, Your Honor, Mr. White's testimony below, and there's no dispute on this because it also came from Brock Lesner's side and his agent, was that you don't have a fight until the bout agreement is signed.

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Because there are a lot of things that can go wrong leading during the negotiations and the undisputed testimony.

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Well, did they tell him that they were negotiating with Lesner?

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They did not tell him, I'm trying to think, they didn't tell him that they were negotiating with Lesnar.

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They were considering a number of opponents.

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Lesnar wasn't the only opponent that they were considering.

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So they were negotiating with several possible opponents at the same time?

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Correct.

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And it was not, and so if Mr. Hunt asked about that, they would not be willing to say who those people were?

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Well, if you look at the direct messages between the parties, Mr. Hunt and Mr. White, there are a number of names that are being discussed.

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Mr. Hunt is asking for certain opponents.

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Mr. White is telling him that he's working on things.

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One of the things that Mr. Hunt complains about in his papers is he says that he asked on May 27th in the direct messages, who am I fighting?

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And that Mr. White said, I don't know.

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But that's not true.

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If you look at the direct messages, all of these are in the record.

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He asked, who am I fighting?

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And Mr. White said, I'm working on it.

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A 100 percent truthful statement because the contract was not done yet.

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Excuse me.

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Yes.

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So one of the issues is always the credibility of the party that's making the statement and whether those statements are true and whether they should be tested under cross-examination.

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So to say that something is not contested doesn't mean that it is true.

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So there may be a failure of proof, there may be no contrary evidence, but it doesn't mean as a matter of factual sort of perfection that something indeed is true.

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Do you understand the point?

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So I took the argument a little bit to mean I didn't believe him.

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Shouldn't I be able to test that?

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Well, Mr. Hunt was asked repeatedly in his deposition, do you have any evidence that any of Mr. White's statements were untrue?

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And he answered, no.

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But with respect to the identity of the opponent, I think something is very important.

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On June the 4th, the bout was announced publicly.

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Mr. Hunt— Right.

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My point is that you don't necessarily have to believe someone when they say this particular fact is true.

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you know, that assertion gets tested by cross-examination.

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But I made my point.

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Go ahead.

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Well, Mr. White was deposed when Mr. Hunt had counsel, and he was examined on that point.

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So he had the opportunity to test Mr. White's credibility and his questions and answers in a deposition.

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I've got six seconds left.

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Do you have any other questions?

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That's all right, because I do want to make sure that we air all of the issues.

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The other issue was the drug testing and the exemption.

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Correct.

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Those were a little troubling, I have to tell you.

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I thought the record reflected that Mr. Lesnar was the one and only recipient of such an exemption.

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Is my recollection of the record correct?

[00:10:41] Speaker 07:
You are correct, Your Honor.

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In view of the fact that Mr. Hunt had repeatedly expressed concern about whether or not Mr. Lesnar was taking some banned substances, was there any misrepresentation regarding the testing of Mr. Lesnar?

[00:11:04] Speaker 07:
I would say absolutely not, Your Honor.

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With respect to the four-month waiver, Mr. Hunt knew about that on June the 8th.

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He asked Mr. White about it.

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Mr. White explained the reason why it was given.

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And Mr. Hunt decided to fight.

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So at a minimum, there was no detrimental reliance.

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He was aware of that.

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There was nothing withheld.

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Now, he, in retrospect, I think, is questioning the reasons for why the exemption was granted.

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But there was no disputed evidence on this whatsoever.

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Mr. Nowitzki, who?

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Well, wasn't there some indication in the record that the four-month extension was

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convenient to allow any banned substances to be dissipated.

[00:11:49] Speaker 07:
Well, that's what Mr. Hunt is saying, but there is no evidence in the record to support that whatsoever.

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Why would there be this one-time, one-time exclusion that had never been done before, has never been done since?

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Isn't there an inference that can be drawn from that?

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Respectfully, I would say no, because Mr. Lesnar was a unique situation, and this was part of the rationale not only decided by the UFC, but also USADA, the independent testing agency, and that was,

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Mr. Lesnar retired three years before the anti-doping policy was enacted by the UFC.

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And so when he came back, this was not a situation where the policy had been enacted.

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He retired to avoid having to be subjected to testing and then tried to come back.

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He was treated as a new athlete.

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Are there other new athletes that come into the UFC?

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And are they exempted?

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New athletes are not subject to the four-month testing requirement.

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Correct, Your Honor.

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They are not.

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That's why he was treated as a new athlete.

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The upshot was that... So you've never had anyone else that retired and came back?

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No.

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You'll see some evidence in the record.

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There was a reference to a fighter named George St.

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Pierre, another very prominent UFC fighter, that was going to potentially be in a similar situation to Mr. Lesnar.

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He ended up not coming back.

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But it was contemplated that he may be in that same situation.

[00:13:09] Speaker 02:
When this testing took place, why did Lesnar get so many tests?

[00:13:14] Speaker 07:
Well, I think, you know, the fact... What was the purpose of that?

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I mean, did somebody ask the doping agency to test extra?

[00:13:22] Speaker 07:
There is no evidence in the record that anyone from the UFC did that.

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USADA is an independent testing agency.

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If you look at the anti-doping policy, it has exclusive testing authority, and so the UFC

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I mean, if they wanted to tell USADA, hey, do this, do that, test more, test less, USADA wouldn't listen.

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USADA is an independent agency that decided when to test Mr. Lesnar, how often to.

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Well, do they have standards?

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USADA does have standards, but I'm not, I can't sit up here and tell you what those standards are.

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We have no insight into the decision-making that USADA employs when deciding.

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You mean the organization wouldn't be aware of what

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the doping agency's policies are?

[00:14:06] Speaker 07:
We have our anti-doping policy that's enacted by the UFC.

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It was done in conjunction with the world anti-doping agency when we created it, and then USADA was retained to administer it as an independent body, but we don't have insight

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into what USADA's internal policies are, other than, you know, we were aware that it was the foremost testing agency in the country.

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Well, Hunt seemed to know that something was up, because he said something like they're testing the SHIT out of him.

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Mr. White said that.

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Oh, correct.

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Mr. White said that.

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Yes.

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So I understood your question to me.

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Do we know what their policies are?

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We are informed about testing that's taking place.

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No question about that.

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We have testimony from Mr. Nowitzki.

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But were all new athletes treated the same way?

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They're all subject to testing.

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But are they subjected to having the same amounts of tests?

[00:15:04] Speaker 02:
Yes.

[00:15:06] Speaker 07:
Your Honor, that's not our decision.

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That's up to USADA.

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But to clarify, and I don't want there to be a misunderstanding on the record, Mr. Nowitzki, our vice president and head of athlete performance, acts as a liaison between USADA

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and the UFC athletes.

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For example, there was testimony that Mr. Nowitzki went and met with Mr. Lester to educate him on what was going to be expected of him and what was required in terms of, for example, whereabouts testing.

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Whereabouts testing means you've got to provide information to USADA that they can find you 24 hours a day, seven days a week, because if they want to show up and give you a random test, they need to know where to find you.

[00:15:41] Speaker 05:
Were the tests random for Mr. Lester?

[00:15:44] Speaker 07:
Absolutely.

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Again, we don't do the testing, but there is no evidence on this record whatsoever to indicate that there was something where Mr. Lesnar got advance notice of testing.

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Absolutely not.

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If you look at the testimony from his agent, who's also an attorney, his name's Brian Stegman, he explained that he was the point of contact for USADA when they would want to test Mr. Lesnar.

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because Mr. Lesner wasn't very technically proficient, so they wanted to make sure that we know someone we can call when we need to show up and test Mr. Lesner, which they did.

[00:16:20] Speaker 05:
Mr. Lesner actually ended up testing positive for banned substance, correct?

[00:16:26] Speaker 07:
He did.

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The record, and this is undisputed,

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The record is that Mr. Lesnar was tested nine times.

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The first six tests all came back negative.

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Those tests were respectively on June 8, June 15, and June 16.

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He was given blood and urine tests on each of those dates.

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Then he was tested again on June 28.

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and on July 9th, fight night.

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The tests from June 28th and July 9th were the ones that came back negative, but nobody knew that until after the fight.

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Negative, positive.

[00:17:00] Speaker 07:
Excuse me, positive.

[00:17:01] Speaker 05:
I apologize.

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Nobody knew that until after the fight.

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The results from USADA came back on the 15th of July and on the 19th of July, and the documentary evidence, it's in the record,

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showed that the UFC did not know that until you saw it and told them.

[00:17:16] Speaker 05:
Mr. Hunt was onto something.

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He expressed fear that Mr. Lesnar would be drug-taking banned substances.

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And actually, it ended up that he was tested positive for banned substance.

[00:17:31] Speaker 07:
Well, I don't know that I can agree with the statement that Mr. Hunt was onto something.

[00:17:35] Speaker 05:
But what I would say is... Well, what he feared came to pass.

[00:17:39] Speaker 07:
Mr. Hunt

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Correct.

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What he feared came to pass.

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He feared that he would be... Tested positive for a banned substance.

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Now, I will say that Mr. Hunt's focus was on him testing positive for steroids, and that is not what he tested for, but I'm not... Well, but there is a link to steroid use.

[00:17:57] Speaker 05:
At least in the record, there was some suggestion that the banned substance that was found is one that

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that is associated with the use of testosterone.

[00:18:09] Speaker 07:
It's a way to generate testosterone in the body.

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That was the testimony, Your Honor.

[00:18:18] Speaker 07:
Anything else I can answer to clarify?

[00:18:20] Speaker 07:
I'm way over my time, but I'm happy to stand up here and answer whatever questions you have.

[00:18:24] Speaker 05:
Well, I just wanted to make sure we fleshed out everything, because Mr. Hunt is appearing a pro se.

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And I wanted to make sure that we ask all the questions that we had, so as the record will be clear about what happened, what his claims were, and what the response is.

[00:18:40] Speaker 02:
As I understood from reading the briefs,

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thinking about the case and looking at what we did before, your whole position is that there were no false statements, there were no misrepresentation, period.

[00:18:51] Speaker 02:
But there's stuff in the record, as Judge Ronson was just saying here, that one could draw an inference that there was a false statement.

[00:18:59] Speaker 07:
Well, Your Honor, I would disagree with that.

[00:19:03] Speaker 07:
I do not believe that to be the case if we're talking about Mr. White's statements.

[00:19:07] Speaker 07:
I think the district court judge went through the record meticulously

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looked at all of Mr. Hunt's theories, whether we were talking about affirmative misrepresentations, alleged omissions, she went through everything and looked at the documentary evidence

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and the testimony of the various witnesses, and found there were no genuine issues of disputed fact, and that all of his statements were, in fact, true.

[00:19:30] Speaker 07:
But that wasn't the only basis for the fraud claim.

[00:19:32] Speaker 07:
It's the only one I referenced because I thought I only had five minutes.

[00:19:35] Speaker 07:
But she also found that Mr. Whitehead- We have as long as we need to.

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100%.

[00:19:40] Speaker 07:
I'm not looking to get out of here.

[00:19:41] Speaker 07:
I'll stay as long as you want.

[00:19:42] Speaker 07:
But in addition to that, she found that Mr. Hunt, nor the UFC,

[00:19:47] Speaker 07:
did not know that any of the statements made were false, which is another element of a fraud claim, also found that Hunt's reliance was not reasonable, and that there was no detrimental reliance, because Mr. Hunt would have done the same thing regardless of any alleged misrepresentation.

[00:20:02] Speaker 06:
But that's a conclusion.

[00:20:03] Speaker 06:
We don't know if that's true.

[00:20:05] Speaker 06:
Mr. Hunt said that, but it's a business of puffery and bravado, so I don't

[00:20:14] Speaker 06:
I don't consider that type of evidence to be particularly persuasive.

[00:20:18] Speaker 07:
You understand what I'm saying?

[00:20:21] Speaker 07:
I understand exactly what you're saying, but what I would say in response, if I might, is that there were two sets of statements that were being analyzed that Mr. Hunt was making on this issue.

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Some were public.

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to the press, to the public, to promote the fight, the smack talk argument.

[00:20:36] Speaker 07:
Many, if not most of his statements were made privately to Mr. White.

[00:20:41] Speaker 05:
So it's still the same principle.

[00:20:43] Speaker 05:
You just said he's a fearless man.

[00:20:48] Speaker 05:
And so he's trying to portray that image, whether it's in private or in public.

[00:20:52] Speaker 05:
That's his image.

[00:20:53] Speaker 05:
And that's what he's going to portray about himself.

[00:20:56] Speaker 05:
So the fact that it was in private doesn't take away from the bravado character of them.

[00:21:02] Speaker 07:
Your Honor, that certainly, I'm not going to argue with that view.

[00:21:06] Speaker 07:
I would differ with that, but I'd like to close if I could.

[00:21:10] Speaker 06:
I think the argument would be that it's not strictly bravado at that point, but it's a desire to communicate to your client

[00:21:25] Speaker 06:
that Mr. Hunt needs this fight and is willing to go along with it, even though he has serious doubts.

[00:21:35] Speaker 06:
So it's sort of a first cousin of bravado.

[00:21:37] Speaker 07:
Well, let me say there's a very important point that I think addresses that.

[00:21:41] Speaker 07:
And I want to make sure that this is clear.

[00:21:43] Speaker 07:
Mr. Hunt acknowledged, and there is no dispute in the record about this, Mr. Hunt did not have to take this fight.

[00:21:51] Speaker 07:
Mr. Hunt did not have to fight Brock Lesnar.

[00:21:53] Speaker 07:
He didn't have to fight at UFC 200.

[00:21:56] Speaker 07:
Fighters are offered fights.

[00:21:57] Speaker 07:
They decide if they want to take them or they don't.

[00:22:00] Speaker 07:
He did not have to take the fight.

[00:22:02] Speaker 07:
He was under no pressure.

[00:22:02] Speaker 05:
There would have been no consequence.

[00:22:04] Speaker 05:
His point was that he wanted to take the fight, but he wanted to fight an opponent who had not been

[00:22:10] Speaker 05:
taking drugs.

[00:22:11] Speaker 05:
So it wasn't an issue of whether he wanted to take the fight or not.

[00:22:15] Speaker 05:
It was he wanted to confirm that the person he was fighting would not be juiced in his terms.

[00:22:20] Speaker 07:
Understood.

[00:22:21] Speaker 07:
But, Your Honor, if he was concerned about Brock Lesnar and whether you consider it puffery, smack talk, or whatever, being made publicly or privately, if he had those concerns and that was what was determining whether he wanted this, he didn't have to take the fight.

[00:22:36] Speaker 02:
When was the last time he could have withdrawn from the fight?

[00:22:38] Speaker 07:
Well, that's a great question because withdrawn probably right up until the fight itself, because remember what also is undisputed in the record.

[00:22:47] Speaker 07:
This was not supposed to be the headline fight by itself.

[00:22:50] Speaker 07:
That was supposed to be a fight between John Jones and Daniel Cormier.

[00:22:54] Speaker 07:
John Jones tested positive for a prohibited substance three days before the event.

[00:22:59] Speaker 07:
And we didn't have to wait to decide whether, you know, what do we do with John Jones?

[00:23:03] Speaker 07:
The UFC yanked it.

[00:23:04] Speaker 07:
Like, that's done.

[00:23:05] Speaker 07:
There is no benefit to the UFC to having fighters

[00:23:09] Speaker 07:
who are alleged to be doping or actually are doping, fight in their events.

[00:23:13] Speaker 07:
That is not something we want.

[00:23:14] Speaker 07:
And so when John Jones tested positive three days before the event, that event was yanked from the card, and Mr. Hunt and Mr. Lesnar's event was elevated to the top of the card.

[00:23:25] Speaker 07:
So right up to the eve is the answer to your question, Your Honor.

[00:23:29] Speaker 07:
And?

[00:23:30] Speaker 05:
There was some suggestion in the record that if Mr. Hunt had not taken this fight, then he would be

[00:23:38] Speaker 05:
less likely to be chosen for future fights?

[00:23:41] Speaker 07:
Well, I think the only evidence I saw of that in the right, and I'm going to use quotes for evidence, came in the reply brief, Your Honor, in which Mr. Hunt, citing to non-record evidence, was referring to a video that his lawyer put on her website talking about the fact that if Mr. Hunt didn't take a certain fight, then he was going to be deemed to be in breach of contract.

[00:24:03] Speaker 07:
Now, that's nowhere in the record at all.

[00:24:06] Speaker 07:
And so I don't know if that's where you're getting that, but the unequivocal testimony that's in the record is he could have rejected the fight without consequence, because remember,

[00:24:15] Speaker 07:
This was the first fight of a six-fight deal.

[00:24:18] Speaker 07:
And so whether he fought Lesnar or he didn't fight Lesnar, he was still going to be under contract for six fights.

[00:24:24] Speaker 07:
And he got paid the same amount regardless of whether he won or lost, which is an important point.

[00:24:31] Speaker 07:
So the fact that it was originally a loss to Lesnar didn't mean any difference in money to Mr. Hunt.

[00:24:37] Speaker 07:
He got paid the same amount.

[00:24:38] Speaker 07:
But the same is true with all of his fights going forward.

[00:24:41] Speaker 07:
He had five more fights.

[00:24:43] Speaker 07:
His purses went up each fight.

[00:24:46] Speaker 07:
He fought all those fights.

[00:24:48] Speaker 07:
We paid him for all those fights.

[00:24:50] Speaker 07:
So there were no damages from a contractual standpoint at all, which I think is an important point for me to close with, unless you have more questions, which is a very important issue that the district court did not reach.

[00:25:01] Speaker 07:
But I think this court can, and I would recommend

[00:25:04] Speaker 07:
to consider it closely is there are no genuine issues of disputed facts regarding his damages.

[00:25:11] Speaker 07:
You remember the last time we were together and in the resulting opinion one of the things this court said is that it might be conceivable that expert testimony could show that a withdrawal would be better than a loss.

[00:25:24] Speaker 07:
We put those questions to Mr. Hunt and his experts and he admitted

[00:25:29] Speaker 07:
He did not lose any fans.

[00:25:30] Speaker 07:
In fact, he admitted that in a competitive loss, you can gain fans.

[00:25:36] Speaker 07:
And he admitted that that had happened to him before in the fight with Bigfoot Silva.

[00:25:41] Speaker 07:
Mr. Silva tested positive for elevated testosterone.

[00:25:45] Speaker 07:
It was a magnificent fight by everyone's account.

[00:25:49] Speaker 07:
And Mr. Hunt acknowledged, I gained a lot of fans from that fight, even though it was a no contest, just like this.

[00:25:57] Speaker 07:
No lost appearances, no lost licenses.

[00:25:59] Speaker 07:
All of the things that this court posited may be possible back on the record after we do discovery and with expert testimony and testimony from everyone else, it doesn't exist.

[00:26:08] Speaker 07:
It's nowhere in the record because Mr. Hunt acknowledged he had no evidence of any damages.

[00:26:14] Speaker 05:
All right.

[00:26:14] Speaker 05:
Thank you, counsel.

[00:26:15] Speaker 05:
Any other questions?

[00:26:16] Speaker 06:
Well, you forgot one point, if I may.

[00:26:18] Speaker 06:
I'm so sorry.

[00:26:18] Speaker 05:
Oh, sure.

[00:26:19] Speaker 06:
I'm not trying to throw a softball, but I don't believe Mr. Hunt testified that he suffered any incrementally worse injuries as a result of this fight.

[00:26:32] Speaker 07:
Well, that's exactly right, too, Your Honor.

[00:26:33] Speaker 07:
And I'm sure Mr. Olson will have something to say about this in the context of the battery claim.

[00:26:38] Speaker 07:
But we took Mr. Hunt through, what do you expect to happen in a UFC fight?

[00:26:43] Speaker 07:
You're going to get hit.

[00:26:44] Speaker 07:
You're going to get punched.

[00:26:45] Speaker 07:
You're going to get taken to the ground.

[00:26:46] Speaker 07:
That is the essence of the sport, is to batter each other.

[00:26:50] Speaker 07:
And he testified that everything he expected is exactly what happened, including being, seven years later, saying the fight was great, the fight was even, and he was incredibly dismissive of Brock Lesnar's punching power, which I think dispels the notion that he was supercharged and all the things that- Is there any evidence in the record that the chlorophene, is that what it's called?

[00:27:11] Speaker 02:
Chlomopene.

[00:27:11] Speaker 02:
Chlomopene, chlomopene.

[00:27:13] Speaker 02:
that it enhanced his strength or his strength or endurance ability?

[00:27:23] Speaker 07:
The closest, and I think the district court pointed this out, the closest Mr. Hunt got to having any evidence on the effect of a performance enhancing drug was from his expert, Mr. Isretel, who was like a school coach.

[00:27:39] Speaker 07:
And all he did is not in the context of Mr. Lesner, he kind of offered an opinion

[00:27:43] Speaker 07:
on the effects of steroids and anabolic steroids, but there is no record evidence that clomapine had any impact on Mr. Lesner's performance at UFC 200, none.

[00:27:55] Speaker 05:
All right, thank you.

[00:27:56] Speaker 05:
Thank you.

[00:27:56] Speaker 07:
Thanks so much.

[00:27:57] Speaker 05:
All right, Mr. Olsen.

[00:28:00] Speaker 05:
We won't keep you as long.

[00:28:10] Speaker 01:
Good afternoon, and may it please the court, David Bradley Olson on behalf of Brock Lesnar.

[00:28:16] Speaker 01:
We need to keep in mind here that Mr. Hunt is required to prove fraud by clearing convincing evidence, and he's required to prove lack of consent as an essential element of his battery claim.

[00:28:26] Speaker 01:
But the two claims are inextricably intertwined because, number one, Mr. Hunt unequivocally consented to a professional mixed martial arts fight with Brock Lesnar.

[00:28:36] Speaker 05:
Well, in all fairness, his position is that he consented to fight

[00:28:39] Speaker 05:
someone who had not ingested any banned substances.

[00:28:44] Speaker 05:
And if in fact he was fighting someone who had ingested banned substances, there was no consent.

[00:28:52] Speaker 01:
Well, what he consented to was a fight with Brock Lesnar.

[00:28:56] Speaker 01:
And the only stipulation, if there was a stipulation, is that Mr. Lesnar be tested.

[00:29:01] Speaker 05:
Well, the law doesn't say that, but battery is

[00:29:06] Speaker 05:
I mean, consent to a battery would be consent to, he put a condition on his consent.

[00:29:11] Speaker 05:
So why doesn't that refute the consent argument?

[00:29:17] Speaker 01:
Well, first, the only condition which I was just mentioning is that

[00:29:23] Speaker 01:
Mr. Lesnar be tested, which he unquestionably was.

[00:29:27] Speaker 01:
The record is absolutely clear on that.

[00:29:28] Speaker 01:
He was tested nine times.

[00:29:30] Speaker 01:
And if you look at the direct messages between Mr. White and Mr. Hunt, all of those direct messages deal only with, I want to see that he's tested.

[00:29:38] Speaker 01:
I want him treated like everybody else.

[00:29:40] Speaker 01:
Well, he was.

[00:29:41] Speaker 01:
That's the only condition that Mr. Hunt ever put on a fight with Mr. Lesnar.

[00:29:46] Speaker 01:
So he did consent to an MMA fight where fighters intend to batter each other.

[00:29:53] Speaker 01:
And his consent is vitiated only if he was somehow defrauded into accepting a match with an opponent who was knowingly and willfully and intentionally doping.

[00:30:05] Speaker 01:
And then who lied and tried to cover it up, which brings us back to the elements of the fraud claim, which Mr. Hunt.

[00:30:13] Speaker 02:
Could you clarify one thing for me in the record?

[00:30:14] Speaker 01:
Yes, sir.

[00:30:15] Speaker 01:
There was the bout agreement.

[00:30:18] Speaker 01:
with the UFC, right?

[00:30:19] Speaker 01:
Mr. Hunt signed a bout agreement with the UFC and Mr. Lesnar signed a separate bout agreement with the UFC.

[00:30:24] Speaker 02:
Was there like a side agreement or a specific agreement dealing with the fight with Lesnar?

[00:30:32] Speaker 01:
I'm not sure I understand that question.

[00:30:33] Speaker 02:
Well, I mean, was there a separate agreement saying, now in such and such a day you're going to fight Lesnar?

[00:30:38] Speaker 01:
That's what the bout agreements are.

[00:30:40] Speaker 01:
The bout agreement Mr. Hunt signed said I would rule it out.

[00:30:41] Speaker 02:
But this bad agreement is for all the fights he was going to do for

[00:30:45] Speaker 01:
That's a promotional and ancillary rights agreement, I believe you're talking about.

[00:30:48] Speaker 01:
That's a broader agreement, like Mr. Hunt's agreement to have six fights, successive fights.

[00:30:53] Speaker 01:
But any individual fight requires a separate bout agreement signed just for that fight.

[00:30:57] Speaker 02:
So every fight that he undertook with UFC, there's a separate bout agreement?

[00:31:03] Speaker 01:
A separate bout agreement for a separate opponent, correct.

[00:31:06] Speaker 02:
OK.

[00:31:07] Speaker 02:
Were there any modifications to this agreement?

[00:31:11] Speaker 02:
Not that I know of, and not that the record shows.

[00:31:16] Speaker 02:
Did Mr. Hunt ask for any?

[00:31:20] Speaker 01:
We, well, I asked him that more than once during his deposition and several times during the written interrogatories and requests for admission and his answer was consistent every time.

[00:31:29] Speaker 01:
No, I never asked for any change or amendment to any agreement.

[00:31:33] Speaker 01:
The only communications he had with the UFC or Mr. White are those direct messages that are all part of the record and those communications stayed only, I want to see Brock Lesnar tested just like everybody else.

[00:31:44] Speaker 05:
Well, in our prior decision, we said that doping is not within the normal scope of organized MMA activity.

[00:31:54] Speaker 05:
So he could not have consented to fighting someone who had banned substances in their system.

[00:32:02] Speaker 05:
What's your response to that?

[00:32:04] Speaker 05:
That's not what he would consent to because that's not within the scope of MMA.

[00:32:09] Speaker 05:
Co-counsel just said that MMA does not want people fighting who have banned substances in their system.

[00:32:16] Speaker 05:
So how could he consent to fighting someone with banned substances in their system?

[00:32:22] Speaker 05:
Well, he consented to an MMA fight.

[00:32:24] Speaker 05:
But that does not include fighting someone who has ingested banned substances.

[00:32:30] Speaker 05:
We said that in our last

[00:32:33] Speaker 01:
decision.

[00:32:35] Speaker 01:
He consented to an MMA fight knowing that fighters oftentimes sign bout agreements which say that they'll abide by the anti-doping policy and then fail a test.

[00:32:45] Speaker 01:
He knew that going in.

[00:32:46] Speaker 05:
That's not what we said in our decision.

[00:32:48] Speaker 05:
We said that he could not consent

[00:32:51] Speaker 05:
to that as part of the MMA fight, because doping is not within the normal scope of organized MMA activity.

[00:32:59] Speaker 05:
So that would not be included within the scope of consent for MMA activity.

[00:33:04] Speaker 01:
But his claim is that he consented to fight Brock Lesnar, and that he was duped into, he was defrauded into fighting a doping fighter.

[00:33:11] Speaker 01:
That's the fraud claim.

[00:33:12] Speaker 01:
I'm talking about the battery claim.

[00:33:14] Speaker 01:
That's what I was talking about, how the fraud and the battery claims are intertwined, because we know he consented to an MMA fight, with knowledge that MMA fighters oftentimes fail drug tests.

[00:33:26] Speaker 05:
That's not what we said.

[00:33:27] Speaker 05:
But that's inconsistent with what we said in our opinion.

[00:33:30] Speaker 05:
We said that that's not within the scope of MMA activity.

[00:33:34] Speaker 01:
I understand what your opinion said.

[00:33:37] Speaker 05:
Well, that's the law for this case.

[00:33:39] Speaker 01:
Which was on a 12b6 motion.

[00:33:41] Speaker 01:
But now we have evidence.

[00:33:42] Speaker 01:
We have facts.

[00:33:43] Speaker 05:
That doesn't change the ruling that consent cannot be for an activity that is outside the normal scope of MMA activity.

[00:33:54] Speaker 05:
So you're telling us that, in other words, he consented to fight with someone who was, could have been under the influence of a banned substance.

[00:34:06] Speaker 01:
He consented to that.

[00:34:09] Speaker 01:
concede that he did not consent to fight someone who knowingly intentionally was doping and was supercharged with... Not supercharged.

[00:34:16] Speaker 05:
If they had just, if they had been using a banned substance.

[00:34:21] Speaker 05:
You're saying that he consented to fight someone who had been using a banned substance.

[00:34:27] Speaker 01:
He did.

[00:34:29] Speaker 01:
The only stipulation he put on it was that there be testing.

[00:34:32] Speaker 01:
There was testing.

[00:34:33] Speaker 01:
Ultimately, a test was failed.

[00:34:35] Speaker 01:
But he did consent to fight Mr. Lesnar, knowing, believing, suspecting, and telling everybody that he was doping.

[00:34:41] Speaker 01:
Excuse me.

[00:34:42] Speaker 05:
He did not consent to fight someone who had been using a banned substance.

[00:34:47] Speaker 05:
The fact that he signed an agreement to fight an MMA does not incorporate consent to fight someone who's been using a banned substance.

[00:34:58] Speaker 01:
But let's look at the facts here, because Mr. Hunt got exactly the kind of fight that he signed up for.

[00:35:03] Speaker 06:
Can I follow up?

[00:35:05] Speaker 06:
So I think that what I'm hearing has a little bit of traction in my mind.

[00:35:12] Speaker 06:
So I think we need to explore it.

[00:35:15] Speaker 06:
If you assume hypothetically

[00:35:20] Speaker 06:
that Mr. Hunt, the scope of his consent was only to fight a clean fighter, regardless of whether the test, the dirty test comes back on the day of the fight after the fight.

[00:35:38] Speaker 06:
and it's later determined that your client, you know, had a banned substance in his body.

[00:35:46] Speaker 06:
Just put all of that aside, assuming, if it's true, just assume this hypothetical, that he did not consent to fight someone who had a banned substance in their body on the day of the fight, just as a hypothetical.

[00:36:08] Speaker 06:
Doesn't that mean that Mr. Hunt's battery claim should survive?

[00:36:13] Speaker 01:
Not at all.

[00:36:14] Speaker 06:
If that hypothetical is true.

[00:36:17] Speaker 01:
Not at all, because that would make this a strict liability claim, which it isn't.

[00:36:20] Speaker 01:
Batteries an intentional torque.

[00:36:22] Speaker 01:
Mr. Lesner had to have been found to have intended to violate the anti-doping policy when he signed that agreement.

[00:36:29] Speaker 01:
But your defense was consent.

[00:36:31] Speaker 06:
That's the fraud part of it.

[00:36:32] Speaker 06:
We're talking about the consent to battery.

[00:36:36] Speaker 06:
Forget fraud.

[00:36:37] Speaker 06:
You say they're inextricably intertwined.

[00:36:39] Speaker 06:
I'd have to think about that.

[00:36:40] Speaker 06:
I'm not sure.

[00:36:42] Speaker 06:
But if the consent indeed is that the opponent will have no banned substance in their body on the day of the fight, just construing it narrowly, how can the consent be valid, period.

[00:37:02] Speaker 01:
because batteries an intentional tort and that would convert a battery to a strict liability offense

[00:37:09] Speaker 06:
It would, if the scope of the content, you're exactly right, it would.

[00:37:15] Speaker 06:
It would do that if the hypothetical is true and there would be no consent to the battery.

[00:37:22] Speaker 06:
So the if is important and it's something I have to think about.

[00:37:26] Speaker 06:
But if my hypothetical is true then I don't see how you avoid the conclusion that the battery was not consented to.

[00:37:35] Speaker 01:
other than your hypothetical is different from the facts of this case.

[00:37:38] Speaker 06:
That could be.

[00:37:39] Speaker 06:
So I simply was using that as a way of sort of testing the structure that we're discussing.

[00:37:49] Speaker 01:
failing drug tests and taking drugs and being found with drugs in your system, the facts here are that Mr. Lesner was found to have an adverse analytical result.

[00:37:59] Speaker 01:
And that result was for nanogram levels of clomaphene in the system.

[00:38:04] Speaker 01:
A nanogram is a billionth of a gram.

[00:38:07] Speaker 05:
But there were consequences to that.

[00:38:12] Speaker 05:
It was deemed to be serious enough that the Nevada Athletic Commission took

[00:38:17] Speaker 01:
Because that is a strict liability regime.

[00:38:21] Speaker 01:
If you're filed with one nanogram in your system, you fail a test.

[00:38:24] Speaker 05:
We have somebody who was with banned substances.

[00:38:27] Speaker 05:
That's the historical fact.

[00:38:30] Speaker 02:
Let me ask you just a few questions about the drug testing results.

[00:38:37] Speaker 02:
There were nine tests of Lesner, correct?

[00:38:41] Speaker 02:
Yes.

[00:38:42] Speaker 02:
And the first six came back negative.

[00:38:45] Speaker 02:
That's correct.

[00:38:46] Speaker 02:
OK.

[00:38:47] Speaker 02:
When did UFC or Mr. Lesner learn that they'd come back negative?

[00:38:54] Speaker 01:
No one at UFC knew, and Mr. Lesner did not know, that there would be an adverse analytical result until July 15.

[00:38:59] Speaker 01:
That wasn't the question.

[00:39:00] Speaker 02:
No, no.

[00:39:00] Speaker 02:
Yeah.

[00:39:00] Speaker 02:
So I'm just talking about the first six.

[00:39:03] Speaker 01:
The first six?

[00:39:04] Speaker 01:
Yes.

[00:39:05] Speaker 01:
I don't have the exact dates in mind, but one was reported two or three weeks before the fight, and the other was about a week before the fight.

[00:39:12] Speaker 02:
And those reports, when you say were reported, were reported to UFC?

[00:39:17] Speaker 01:
Reported by USADA to UFC, and then reported to Mr. Lesnar.

[00:39:20] Speaker 01:
You've passed your test.

[00:39:21] Speaker 01:
It's negative.

[00:39:22] Speaker 02:
OK.

[00:39:23] Speaker 02:
So then there were three more tests, correct?

[00:39:25] Speaker 01:
There was a blood and urine test on the same day, June 28, and then there was another test on the day of the fight, July 9.

[00:39:36] Speaker 01:
And those are the ones, those last three, those are the ones that came back positive on July 15.

[00:39:41] Speaker 02:
On July 15th, and that was after the fight.

[00:39:44] Speaker 01:
Correct.

[00:39:45] Speaker 01:
So there's no evidence that anybody knew Mr. Lesnar would fail a test.

[00:39:48] Speaker 01:
There's no evidence that Mr. Lesnar ingested any banned substance intentionally or knowingly, or that in any way tried to game the system or to cheat.

[00:39:57] Speaker 01:
That's all pure speculation.

[00:39:58] Speaker 02:
Do you know where it is in the record where it shows that before the fight, at the last test, the sixth test, or one of the other tests,

[00:40:07] Speaker 02:
that demonstrates or shows that UFC knew that the test results would come back negative?

[00:40:15] Speaker 01:
I can't point to exactly where in the record, but I know it's in the briefing and the supplemental excerpt of record.

[00:40:20] Speaker 01:
Are you sure?

[00:40:22] Speaker 01:
I'm quite certain of that.

[00:40:25] Speaker 02:
Okay.

[00:40:25] Speaker 02:
Okay, I think I don't have anything else.

[00:40:26] Speaker 05:
All right, thank you, Councilman.

[00:40:27] Speaker 01:
Thank you, Your Honor.

[00:40:28] Speaker 05:
Mr. Hunt, you have five minutes.

[00:40:33] Speaker 00:
Are you sure?

[00:40:38] Speaker 05:
Could you address the consent issue, the fact that counsel for Mr. Lesnar says you consented to fight Mr. Lesnar knowing that there are instances when MMA fighters have ingested banned substances.

[00:40:56] Speaker 05:
What's your response to that?

[00:41:00] Speaker 00:
My response to that, when Lesnar's lawyer suggests I consented to fight a steroid user,

[00:41:07] Speaker 00:
I had several agreements in place that I should have been allowed to rely on.

[00:41:11] Speaker 00:
That included the anti-doping policy.

[00:41:14] Speaker 00:
I also continually relied on White's reassurances that Elisna would be clean.

[00:41:24] Speaker 06:
Can I ask a question?

[00:41:25] Speaker 02:
Of course.

[00:41:26] Speaker 06:
Mr. Hunt, how were you hurt by any of this?

[00:41:33] Speaker 06:
Let's just assume that you're right on some of the theories.

[00:41:38] Speaker 06:
Let's assume you're right on your battery theory.

[00:41:40] Speaker 06:
How are you hurt financially or otherwise?

[00:41:44] Speaker 06:
And you have to answer that based upon what's in the record before us.

[00:41:52] Speaker 00:
Okay.

[00:41:52] Speaker 00:
I'm just going to grab my images record.

[00:41:54] Speaker 06:
By hurt, I mean damaged.

[00:41:56] Speaker 06:
How are you hurt financially and physically?

[00:41:59] Speaker 06:
Period.

[00:42:00] Speaker 06:
Just how are you hurt?

[00:42:02] Speaker 00:
My career was halted as every time I fought a steroid user, it always becomes a non contest.

[00:42:11] Speaker 00:
I don't move forward up in the ranks.

[00:42:12] Speaker 00:
I think I was ranked number five in the world at the time.

[00:42:15] Speaker 00:
But every time I fought a guy that's been doping, like for instance, I broke my hand in 16 screws with another doping opponent.

[00:42:26] Speaker 00:
I've got knocked out by another defending opponent.

[00:42:28] Speaker 06:
But right, we're talking about this one, this one.

[00:42:32] Speaker 06:
How are you hurt on this one?

[00:42:37] Speaker 00:
Well, like I said, my career is halted.

[00:42:40] Speaker 00:
I don't move forward in the ranks.

[00:42:42] Speaker 00:
It becomes a no contest, a blemish on my record.

[00:42:48] Speaker 00:
Sorry, I'll just grab my damages.

[00:42:57] Speaker 00:
And, you know, I've got the intimidation by Colby Williams of my partner, the stalking of my partner.

[00:43:10] Speaker 00:
It's all in the briefings of my future earnings, emotional distress, coercion, battery.

[00:43:18] Speaker 06:
You say your future earnings, but what is in the record that answers that question?

[00:43:27] Speaker 00:
Well, every time I've lost a fight concerning a doper that my company doesn't look out for me, and it doesn't get penalized properly, my... I really said I'm not able to move up, but also my fire, like I said, for wanting to fight, to fight for the world title goes, you know, it gets dissipated.

[00:43:54] Speaker 00:
Is that what you're asking, Your Honor?

[00:43:58] Speaker 00:
yeah I'm just trying to understand in concrete terms you know people go to court they sue they usually want money yeah go ahead that's it I mean this is a civil case Williams attempts to narrow the harm's evidence wasn't presented in fact expert report from Dr. Carrie Hastings was presented and stipulated with a medical diagnosis that's in the facts that's in the records

[00:44:28] Speaker 06:
Okay, thank you.

[00:44:29] Speaker 05:
The opposing council says you had the remaining fights that were on your contract.

[00:44:34] Speaker 05:
This was the first, and that you had the remaining fights.

[00:44:39] Speaker 05:
Is that true?

[00:44:41] Speaker 00:
Well, not all of them I had.

[00:44:43] Speaker 00:
I got pulled off Sydney, the card.

[00:44:49] Speaker 00:
They alleged that I had CTE.

[00:44:51] Speaker 00:
I had to go get checked.

[00:44:54] Speaker 00:
The rest of the fights I had, yes.

[00:44:58] Speaker 05:
Is there anything else you'd like to add before we conclude?

[00:45:02] Speaker 00:
I'd like to add on the false statement of material effect.

[00:45:18] Speaker 00:
We refute these claims.

[00:45:20] Speaker 00:
The phone messages show that Elizabeth Ann White did know from March 2016 that he would be the opponent.

[00:45:28] Speaker 00:
When White was deposed, he answered that he didn't know about the exemption.

[00:45:34] Speaker 00:
This perjury is in opposition to the existence of material evidence that was produced in discovery.

[00:45:42] Speaker 00:
And contrary to Mr. Williams has stated today that his answering brief admits that I was defrauded and harmed

[00:45:52] Speaker 00:
by a collusion, fraud, and aiding and abetting.

[00:45:55] Speaker 00:
Just to highlight some of the admissions, they even highlight that just because I was harmed, maybe White didn't know about it, harms exist, whether White wants to suggest it or not, whether he knew or not.

[00:46:12] Speaker 00:
Also, further, I like the defendant's comments when Lesna tested positive, it was Usada contracted to the USC

[00:46:20] Speaker 00:
performing the test I relied on.

[00:46:23] Speaker 00:
I relied on.

[00:46:27] Speaker 00:
Also, Fire, as you commented on the false statements, I point again to the Defendants Answering Brief, where the Defendants have in fact made admissions to their collusion, fraud, aiding and abetting, and that should Mr. White have contributed to committing the harm.

[00:46:46] Speaker 00:
When William suggests... Oh shit, I lost my purse.

[00:46:49] Speaker 00:
Can you put it back?

[00:46:53] Speaker 00:
When William suggested that I didn't have to take the fight, I have been coerced into fighting on other occasions with threats that I will be in breach of my contract.

[00:47:02] Speaker 00:
Irrespective of when I have been coerced, I have evidenced this with a documentary with my former counsel that stated William attempts to narrow the harms evidenced wasn't presented in fact

[00:47:16] Speaker 00:
That was the expert report by Dr. Carrie Hastings.

[00:47:23] Speaker 00:
A comment regarding the clomiphene found in Lesnar's system is known to be a steroid clearing chemical.

[00:47:29] Speaker 00:
When Lesnar's lawyer suggests that I consented to fight a steroid user, I had civil agreements here.

[00:47:36] Speaker 00:
Anyway, that's basically what I was talking about.

[00:47:44] Speaker 00:
Thank you.

[00:47:44] Speaker 05:
Thank you, Mr. Hunt.

[00:47:46] Speaker 05:
And thank you for appearing from Australia.

[00:47:48] Speaker 05:
That completes our case for today.

[00:47:51] Speaker 05:
The case just argued is submitted for decision, and we are adjourned.