[Ed. note: Gregory Monskie is a practicing attorney in the areas of Media & Employment Law, and is now the newest member of the MMAConvert.com team. Gregory will primarily be focusing on the business/legal/contractual topics and issues that arise in MMA. Welcome Gregory.]
While the UFC cleaned up its act inside the cage several years ago, many feel that the UFC continues to fight dirty with its fighters behind the scenes. But are they alone?
On the eve of the debut of upstart promotion Bellator Fighting Championships on April 3 some in the MMA community are already crying foul with respect to the standard contract being offered. With the signing of highly ranked lightweight fighter Eddie Alvarez, Bellator seems to be on its way to a good start. But for those fighters without the star power of Alvarez, it is doubtful they will be able to negotiate some of the more draconian terms.
One issue drawing complaints is that Bellator is locking fighters into a long-term deal. The standard term of the contract offered is eight fights or thirty-six months, whichever is earlier. As the UFC well knows, locking a fighter into a long term deal leaves a promoter with all of the taste and none of the calories, meaning the promoter can release the fighter at any time, but the fighter cannot walk away whenever he wants. Put simply, a fighter is bound to the promotion for the life of the contract, or the life of his usefulness, which ever ends first.
Drawing criticism of many fighters and managers, the Bellator contract secures some ancillary rights as well. For example, Bellator retains the right to register a trademark in the fighter’s name, stage name, or identity in order to carry out the promotional duties of the organization. While some have a visceral reaction to this type of perceived heavy-handedness, it’s not that simple. From the outset, it is necessary that a promotion have some rights with respect to the use of a fighter’s name or likeness for promotional purposes. In fact, many personal service contracts in the entertainment industry have similar clauses. The problems really start where the rights granted are exclusive, i.e. the UFC’s video game contract that led to a momentary snafu with Jon Fitch and AKA. It appears however, that these ancillary rights are limited to promotional purposes only; meaning this probably is not a big deal anyway.
Beyond these promotional rights, it seems a bit puzzling that Bellator would make a grab at the right to register a trademark in a fighter’s name. Before getting to that, however, there are a few things you have to know about trademarks. First, trademark protection doesn’t arise simply when it is registered. Rather, a trademark is protected so long as it is used as a trademark, meaning that a trademark can lapse due to non-use. Another common misconception is that a trademark identifies a particular product, i.e. HERSHEY to chocolate. That’s incorrect. Rather, a valid and enforceable trademark must associate with the source of the product in the mind of the consumer, i.e. SPRITE to Coca-Cola Bottling Co., or UFC to Zuffa.
Now think about a fighter’s name being trademarked by a promoter. If you are thinking to yourself that it doesn’t make much sense, that’s probably because it doesn’t. There is no way that when you hear a fighter’s name you will associate it with the organization for which he fights before the fighter himself. Besides, it’s quite difficult to get a trademark in your own name, let alone for someone to have a trademark in yours. To do so, your name must have what is called “secondary meaning,” which means that it must transcend the name, and be widely recognized as a trademark. Think of Mr. Hershey, Mr. Remington, and Mr. Firestone.
A non-exhaustive search of the United States Patent and Trademark Office records shows that very few fighters have registered trademarks in their name. Chuck “The Iceman” Liddell is one, and although Randy Couture has a several trademarks in his name, via Natural Couture, Inc., they appear to be for merchandising purposes, which the Bellator contract specifically does not cover according to the Payout piece. If the biggest named fighters do not find it useful to register their names, what is the likelihood that Bellator’s right to register a fighter’s name has any real value? And for those skeptics who feel that a promoter retaining a registered trademark in a fighter’s name will have a negative impact on their ability to fight for another promotion, consider that WWE registered a trademark in the name Brock Lesnar on May 2, 2002.
Lastly, what business sense does it make for Bellator to try to use a trademark in a fighter’s name if the fighter is no longer with the organization? If the fighter sucked and got cut, is Bellator really going to use his name to promote the organization? Probably not. If a great fighter fulfilled his contract only to leave for a more reputable promotion, does Bellator have any reason to promote him? Doubtful. Even in a worst-case scenario, trademark law provides for a limited fair use of a trademark, which would likely allow a fighter to continue to use his name even if he doesn’t own the mark and doesn’t fight for Bellator. And because personal service contracts are not transferable, it’s unlikely that these trademarks would be of any value to a successor organization should Bellator be bought out or go under.
At the end of the day, regardless of how one-sided the terms may be, each fighter has to consider his BATNA (Best Alternative to a Negotiated Agreement – props to Roger Fisher and William Ury – Getting to Yes – read it). Without another organization to fight for, is signing the contract worth it to a lesser-known fighter? I suspect so. And we can’t forget that no matter how much we love to stick up for the little guy against the big bad promoter, the market will always dictate a fighter’s value, whether we like it or not.