Hit Me Baby, One More Time

It may have been premature to dub the Mayweather–Pacquiao bout on 2 May 2015 the ‘Fight of the Century’, when we had only seen slightly more than fourteen percent of the century and zero percent of the fight; and given the scandal of Pacquiao’s rotator-cuff injury, it seems as though the pundits were definitely wrong. At least the 20th century waited 74 years before declaring its best boxing match.

Nevertheless, it seems that Pacquiao’s fight is far from over. No less than thirty-two class-action lawsuits have been filed against him, his promoters, Top Rank, and his manager, Michael Koncz. In each of these lawsuits, the plaintiffs are respectively claiming at least five million US dollars compensation (the maximum allowed in class-action lawsuits in the USA) from the defendants for supposedly duping pay-per-view watchers, fans who bought tickets to the fight and even gamblers who bet on Pacquiao. The general logic seems to be that the members of the class of people being represented would not have paid to see the fight or bet on Pacquiao had he disclosed his injury.

Prior to the fight, Pacquiao signed a Nevada Athletic Commission medical questionnaire wherein he declared that he had not suffered any injuries to his shoulder or any other part of his body that may affect his performance in the fight or put his health at risk. It seems most likely that the medical questionnaire was not a tripartite agreement and that it only created a legal relationship between team Pacquiao and the Nevada Athletic Commission. The plaintiffs clearly believe otherwise, but team Pacquiao also alleges that his shoulder injury was in fact known to the organisers of the fight through other means of disclosure. For this reason alone, the lawsuits against Pacquiao should apparently fall flat. But this would be boring, so let us assume then that Pacquiao’s medical questionnaire also created an obligation to the public, that he did lie to the fight organisers and that there is in fact a cause of action as the plaintiffs have argued. Would the class of people being represented not have purchased tickets or pay-per-view hours (both of which were excessively priced, of course) or bet on Pacquiao had they known of the injury?

The question above would certainly be hard to answer for the people who want their money back for their tickets and pay-per-view hours. Who wouldn’t pay to see Mayweather fight, even if his opponent was at a disadvantage? Their case would be difficult to prove, and it appears as though the best argument for the spectators lies in a statement by Texan plaintiffs that they did not get their money’s worth as “[t]he fight was not great, not entertaining, not electrifying. It was boring, slow and lacklustre”. Therefore, they want their money back? A similar lawsuit was brought, unsuccessfully, against pop band Milli Vanilli when disappointed fans realised that the vocalists had been lip-syncing through their live shows. But everyone knows that Britney Spears lip-syncs and her shows still sell out; and in Las Vegas too, no less. Therefore, it seems as though the Britney Spears defence should work for Pacquiao.

However, would the gamblers who bet on Pacquiao still have bet on him had they known of the injury? Almost definitely not, or at least not as much, so it is fair to assume that this argument may be valid. Nevertheless, this assumption could prove to be wrong as well. One of the many problems with gambling is that it is not enforceable. In many countries, including South Africa and the USA, gambling agreements are against public policy and, while not prohibited by law, they are not enforceable through the law, which is why you pay for your chips upfront at the casino. A problem now arises for the gamblers, because while Pacquiao may have ruined their gambling agreements, these agreements do not actually exist in the eyes of the law. Therefore, the only remaining avenue would be delict. However, for a delictual claim, one would still need to prove unlawfulness.

Is it unlawful to not disclose all the facts to people who would potentially bet on you? Here too, it would be reasonable for Pacquiao to be in the clear because his medical questionnaire probably only created a duty to the Nevada Athletic Commission. If there were a legal duty between an athlete and gamblers, this logic would require a separate ‘Gambling Assurance Form’ (or something similar) that one would need to sign to let potential gamblers know, roughly, what their odds were in betting on you. Not only does this seem very impractical, but such an undertaking, given its link to gambling, would probably not be legally enforceable anyway. If it were, then gamblers who bet on Mayweather could just as easily sue for damages because they would have bet more money on him, and thus won more, had they known that his opponent was injured.

But the blame needs to lie somewhere, probably. Perhaps the most likely culprits are the fight organisers. In the end, they are the ones that handle most of the money, authorise and oversee the betting and ensure compliance with the rules. The organisers must hold some responsibility to the viewing and betting public before setting the ticket and pay-per-view prices and opening up the floor to the bookies. Should that responsibility not flow further than taking Pacquiao’s word when he ticked the box on the right? Was it reasonable to accept all that money and put Pacquiao in a ring with the world’s other greatest boxer, who just happens to be undefeated and have twelve centimetres more reach on his jab, without even performing an independent medical examination? Maybe not.

Given the many legal hurdles in place, the lawsuits against Pacquiao and his team seem likely to suffer from a technical KO, which makes the very large plaintiff turnout surprising. But while some are clearly disappointed with the entertainment value of the fight itself, it is hard to ignore how much interest and social debate these two fighters have stirred up without so much as a blood-nose in the ring. The Fight of the Century? Perhaps not. And the title of Court Case of the Century has already been clinched by an athlete of our own. Maybe the best the plaintiffs can hope for is a rematch and a few complimentary Britney Spears tickets.

Matthew du Plessis – Practitioner

Kim Rademeyer – Partner