Following up on my post,Zuffas-motion-for-summary-judgment-in.html" target="_blank"> Zuffa's Motion For Summary Judgment In Burnett Case Granted, on December 6, 2010 Tufguy Productions, Inc., Ultimate Fighting Productions, LLC, and Zuffa, LLC d.b.a. Ultimate Fighting Productions ("collectively, "defendants") filed a motion for attorney's fees seeking $52,996.00 from Mikey Burnett. Specifically, defendants seek contractual indemnity for legal fees incurred defending against Burnett's claims in connection with his participation on the Ultimate Fighter 4.
As you may recall, on October 20, 2010 Judge Gloria M. Navarro of the United States District Court for the District of Nevada granted defendants Motion for Summary Judgment dismissing Burnett's negligence claim because she held that the waivers in the various agreements Burnett signed in order to participate on the Ultimate Fighter 4 were perfectly valid and enforceable against the negligence claim.
First, Zuffa relies on language from the "Exclusive Promotional and Ancillary Rights Agreement," which, as set forth in the motion, provides in relevant part as follows:
17. Fighter shall indemnify, defend and hold harmless ZUFFA, its subsidiaries and affiliates, and each of their members, managers, directors, officers, employees, representatives, agents and contractors from and against any claims, actions, proceedings, expenses (including attorneys' fees of counsel of indemnified party's choice, as and when incurred) and damages arising from or relating to any negligent or intentional acts or omissions by Fighter or any of Fighter's Affiliates or by the actual or claimed breach of this Agreement or any Bout Agreement by Fighter or any of Fighter's Affiliates or the inaccuracy of any of Fighter's representations, warranties or covenants contained herein or within any Bout Agreement.
28.4 In the event either party engages counsel in connection with the enforcement or interpretation of this Agreement or any provision hereof or the resolution of any dispute arising from or related to this Agreement, the prevailing party shall be entitled to recover from the other party its attorneys' fees and costs, regardless of whether or not an action is filed.
Next, defendants rely on language from the "Ultimate Fighter Applicant Agreement:"
26. As used in this Agreement, the term "Releasing Parties" means and refers to each of me, my heirs, next of kin, spouse, guardians, legal representatives, executors, administrators, successors and assigns.
27. As used in this Agreement, the term "Released Parties" means and refers to each of Producers, Spike TV, Full Circle Entertainment, LLC, and each of their respective parents, subsidiary entities, affiliates, successors and assigns, and the respective directors, officers, members, managers, employees, agents, contractors, partners, shareholders and representatives of each of the foregoing entities.
31. I and other Releasing Parties irrevocably agree to defend, indemnify and hold harmless each of the Released Parties from and against any and all claims by whomever asserted arising out of or in connection with (a) any breach or alleged breach of any agreement, covenant, representation, warranty made by me in this Agreement or (b) my preparation for, participation and appearance in or elimination form the Series or the activities associated with the Series, including without limitation any injury, illness, damage, loss harm or death I may suffer from and any statement, action or omission of mine during or in connection with the Series.
Finally, defendants rely on language from the "Ultimate Fighter Waiver and Release, Assumption of The Risk, and Indemnity Agreement:"
7. RELEASING PARTY HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS THE RELEASEES and each of them FROM ALL OF THE LIABILITY AND LOSSES, DAMAGES, INJURIES, DEBTS, LIABILITIES, EXPENSES (including court costs and attorneys fees), JUDGMENTS, OR COSTS they may incur due to claims, demands, damages or causes of action of any kind brought by RELEASING PARTY, or anyone on behalf of the RELEASING PARTY, against the RELEASEES on account of any injury, including but not limited to, death or damage to property, caused or alleged to be caused in whole or in part by the NEGLIGENCE of the RELEASEES or otherwise arising from or related in any way to the EVENTS and/or his presence in or upon the premises or facilities where the EVENTS are or will be taking place.
8. RELEASING PARTY also HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS THE RELEASEES and each of them FROM ALL OF THE LIABILITY AND ANY LOSSES, DAMAGES, INJURIES, DEBTS, LIABILITIES, EXPENSES (including court costs and attorneys fees), JUDGMENT, OR COSTS they may incur due to RELEASING PARTY's participation in the EVENTS, RELEASING PARTY's breach of any term, condition, representation or agreement contained herein, and/or RELEASING PARTY's tortious or criminal conduct.