By Bryanna Fissori
Legal Analyst
Because nothing in boxing can ever exist without controversy, class action complaints have been filed in both the Nevada District Court and California Central District Court to recover damages to potentially tens of thousands of plaintiffs relating to Manny Pacquiao’s failure to disclose his shoulder injury prior to his May 2nd loss to Floyd Mayweather.
In the first suit Pacquiao is named as a defendant along with promotion company Top Rank Inc., managers Bob Arum, Todd Duboef and advisor Michael Koncz. The second only names Manny Pacquiao and the company.
The first two plaintiffs bringing the cause of action against this bunch are Stephane Vanel and Kami Rahbaran. Both reside in Clark County, Nevada purchased tickets and/or pay per view for the event in contention. According to the complaint the “class” also consists of “potentially hundreds of thousands of ticket purchases; pay per view purchasers and persons who wagered on the Mayweather-Pacquiao fight held May 2, 2015 (the “Event”); which were victimized by Defendants’ failure to disclose and to cover up the injuries of Defendant Pacquiao.”
The second Plaintiff is Howard B. Sirota of Hollywood, Florida who has filed in California.
The claims are very similar in concept though the Nevada case does a more through job of using the language of the law in the specific jurisdiction.
Nevada District Court Case
The Nevada case claims that there are several questions of law and fact that the plaintiffs assert would entitle them to relief;
1. Whether Defendants withheld the information that Defendant Pacquiao had been seriously injured prior to the Event;
2. Whether Defendants’ actions violated NRS 598; NRS 41.600; NRS 598A and other causes of action set forth below, including but not limited to the equitable theory of Unjust Enrichment;
3. Whether Defendants were unjustly enriched by its acts and omissions at the expense of Plaintiffs and the class;
4. Whether Plaintiffs and the punitive class sustained damage and loss thereby;
5. The scope, extent and measure of damages and equitable relief that should be awarded and
6. Whether Defendant’s acts and omission entitle Plaintiffs and the Class to treble damages, attorney’s fees, prejudgment interest and cost of suit
There are three causes of action being asserted in the Nevada lawsuit regarding the actions of Pacquiao and his management crew.
Fraudulent Concealment
The Plaintiffs contend that Defendants has full knowledge that Pacquiao had been seriously injured and was in pain from a torn rotator cuff, which would have an obvious affect on his performance in the ring. They also state that the Defendants had a duty to disclose that information.
To comprise all elements to make a case for Fraudulent Concealment there must have been concealment or suppression of a material fact; knowledge of this material fact; the material fact must not have been within reasonably diligent attention, observation, and judgment of the plaintiff; the defendant must have suppressed or concealed this fact with the intention that the plaintiff be misled as to the true condition of the property or situation; the plaintiff must have been reasonably misled; and the plaintiff must have suffered damage as a result of the concealment.
The Plaintiffs believe that because the injury was not disclosed they and the unnamed class members suffered actual losses when they purchased tickets, pay per view showings and placed bets on the bout.
Statutory Consumer Fraud NRS 41.600
This cause of action relates specifically to the Nevada Code, which involves issues of deceptive trade practices, failing to disclose a material fact in connection with a sale of goods and false representation in a transaction.
Plaintiffs believe Pacquiao and the other Defendants “have acted willfully, intentionally, maliciously and fraudulently, with intent to deceive and defraud the Plaintiffs and the Class with great recklessness and carelessness in total disregard of the consequences of their intentional actions upon Plaintiffs and the Class . . .”
Conspiracy to Commit Consumer Fraud
This cause of action alleges that the aforementioned statute violations were committed in knowing agreement amongst the Defendants, “to engage in t predatory, wrongful, fraudulent and deceptive trade practices . . .”
District Court of Central California Case
The California complaint is much less detailed in asserting its claims of Fraud/Intentional Misrepresentation and Unjust Enrichment. The basic assertions of the case are that plaintiffs were expecting the “fight of the century” and because Pacquiao was hurt, fans didn’t know that and it was not the fight of the century, he is not entitled to the money fans paid to watch for the fight. Potential additional plaintiffs could join either of the suits, but of the two the Nevada suit appears on its face to have the higher probability of success.
Paralleled with Historical Fraud Controversies and Gambling Fraud in Boxing
The sport of boxing has historically been plagued with accusations of fraud in matches. One of the more recent controversial decisions also involved Pacquiao after a 2012 loss to Timothy Bradley, which was suspicious enough to spark legislation to battle the issue of distrust in boxing.
Going back much farther in time to 1965 when a young Cassius Clay threw the famous “Phantom punch” that dropped Sonny Liston, this controversy is still a talking point for classic boxing fans. There certainly had to have been a number of bets placed in Liston’s favor at that time, as well as rumored mob influences.
The examples are endless and could arguably parallel that of the Plaintiffs in the current case given that the results of the match may have been shrouded in unfair dealings, which caused harm to those who bet on the bout.
Surprisingly, neither of the cases currently in question against Pacquiao and others expressly state a claim for gambling fraud. That in itself may speak to an inability to prove intent on the part of the Defendants. In Nevada this would fall under NRS 465.070.
Neither set of Plaintiffs are asserting that the fight was “fixed,” but allude to the belief that the odds were not as they were made to seem. They will likely have to prove that had they known the fact of Pacquiao’s injury that they would have not purchased tickets, pay per view showings or placed particular bets.
Issue of Pre-Fight Medical Disclosure
It is true that on the pre-fight medical questionnaire issued by the Nevada State Athletic Commission (NSAC), Pacquiao’s form has the box checked stating that he has no injuries to his shoulders.
In a recent interview Pacquiao’s advisor Michael Koncz stated, “Number one, Manny didn’t check the box, I checked it. It was just an inadvertent mistake. If I was trying to hide anything, would I have listed all the medications on the sheet that he intended to use? We weren’t trying to hide anything. I just don’t think I read the questionnaire correctly.
“I’m going to take full responsibility for what happened. The wrong box was checked. But I think part of the responsibility also lies with the commission. Wouldn’t you ask a question about all these medications (on the questionnaire)? The bottom line is that we weren’t trying to hide anything. If we had wanted to, we could have done the injection at the hotel before the fight and nobody would have known but we didn’t want to hide anything.”
This is an issue that will be taken up with the NSAC, but may be relevant so far as what steps would have been taken had the injury been disclosed. If the answer were that it would have changed little to none of the events that followed, this would bode well for the Defendants’ case. Currently the issue is being reviewed by the Nevada attorney general’s office.
Motions to Dismiss on the Way
Pacquiao’s attorney, Daniel Petrocelli told media that he expects the lawsuit will be dismissed, when addressing the Nevada case.
“It claims Pacquiao was injured [immediately] before the bout and that’s not true,” said Petrocelli, “he was injured [nearly a month] before the bout, was examined by doctors and cleared to fight, and he was examined by the commission right before he fought.”
This alludes to the contention that if the commission did in fact clear Pacquiao to fight, and he had no legal obligation to tell the public of his injury then no fraud was committed. The Defendants are also likely to assert that no fighter enters the ring and 100% and disclosure of injuries could potentially alert the fighter’s opponent of weaknesses and thus provide an unfair advantage.
