Povetkin Files Opposition Papers and Cross-Motion for Summary Judgment in Wilder Case

Alexander Povetkin/Wikimedia Commons-Przemek Garczarczyk

Attorneys for top heavyweight contender Alexander Povetkin and his promoter World of Boxing LLC ("WOB"), recently filed opposition papers to the summary judgment filed by WBC Heavyweight Champion Deontay Wilder and his promoter, DiBella Entertainment Inc. ("DBE").  Povetkin and WOB also filed a cross-motion for summary judgment in this lengthy litigation in the Southern District of New York.

The case stems from the aborted WBC Heavyweight title bout scheduled for May 21, 2016 in Moscow, but postponed due to Povetkin testing positive for Meldonium.  In February 2017, a jury trial was held on the sole issue of whether Povetkin had ingested Meldonium after January 1, 2016, the date when WADA placed Meldonium on the banned substance list.  The jury needed little over half an hour to return with a verdict against Povetkin.

District Judge Andrew Carter denied Povetkin's Motion for Judgment as a Matter of Law and Motion for a New Trial in September 2017.  Wilder's attorneys then filed their motion for summary judgment on the remaining causes of action in the case: breach of the bout agreement and release of the escrow funds to Wilder.  (For a more fulsome summary of Wilder's motion see this blog's recap.)

In Povetkin's opposition papers, his attorneys make the argument that the bout agreement was governed by the WBC and its rules at all times and the WBC made a determination at the time of the positive test to postpone the fight and not cancel it.  They further argue that the WBC stated that they would postpone the fight until after they conducted an investigation.  In August 2016, the WBC came back with a decision that they could not definitively determine that Povetkin ingested Meldonium after January 1, 2016 and they cleared Povetkin to participate in an "interim" world title bout.  Povetkin's attorneys argue that because the WBC essentially cleared Povetkin at that time, he could not have breached the bout agreement and that, to the contrary, Wilder, by not flying to Russia for the fight, had been the one who repudiated the bout agreement.

The WBC allowed Wilder to make an optional defense while their investigation took place and Wilder got injured on his way to stopping Chris Arreola.  Povetkin's attorneys argue that Wilder's injury caused him to be unable to fight Povetkin after the WBC cleared him and thus, Wilder breached one of the representations and warranties of the bout agreement.

Povetkin argues that he is entitled to $2,616,589.92 in reliance damages, plus 9% simple interest, as well as $2,566,135 in expectation damages, plus 9% simple interest.

Povetkin further argues that though the jury verdict in this case found that he had indeed ingested Meldonium after January 1, 2016, the WBC ruled on November 7, 2017, after conducting an additional investigation, that it would adhere to their August 2016 ruling stating it was not possible to ascertain if Povetkin ingested Meldonium after January 1, 2016.  Povetkin was reinstated to compete in WBC-sanctioned bouts as of December 6, 2017.  (Povetkin had subsequently tested positive for another PED, Ostarine, when prepping for the "interim" WBC title bout with Bermane Stiverne and was suspended by the WBC indefinitely).

Regarding their counterclaims, Povetkin and WOB's attorneys argued that Wilder and DBE breached the covenant of good faith and fair dealing because of the way they manipulated Povetkin's positive test to avoid participating in the bout yet still want to take home their bout purse from the escrow account.

They additionally argued that WOB was entitled to $2,500,000 in liquidated damages due to breach of the escrow agreement, as the escrow agreement does not provide for a claim of breach of the bout agreement as grounds to freeze the escrowed funds.

See Povetkin/WOB's motion below:

District Judge denies Motions for Judgment as a Matter of Law and for a New Trial in Wilder v. World of Boxing, LLC

Today, District Judge Andrew Carter issued an opinion denying World of Boxing, LLC's Motion for Judgment as a Matter of Law and Motion for a New Trial in the Deontay Wilder v. World of Boxing, LLC ("WOB") case in the United States District Court, Southern District of New York.  Judge Carter remarked in his opinion that WOB was "a defeated combatant unwilling to accept a sound jury verdict."

This case involved the alleged ingesting of the banned substance, Meldonium, by heavyweight contender Alexander Povetkin ahead of his scheduled world title bout against WBC Heavyweight Champion Deontay Wilder, which was slated for May 21, 2016 in Moscow, Russia.  Nine days before the scheduled bout, it was announced that VADA, which conducted the testing for the fight, had determined that Povetkin's April 27 urine sample had tested positive for Meldonium.  Wilder, after receiving this news, cancelled his flight to the site of bout.  Wilder's promoter DBE had negotiated to have Wilder's purse put in escrow ahead of the bout.

Wilder eventually sued WOB for breach of the bout agreement (for failing to deliver Povetkin), breach of the escrow agreement (for failing to instruct the escrow agent to pay Wilder) and requested a declaratory judgment (instructing the escrow agent to release the funds to Wilder).  WOB counter-sued claiming breach of the bout agreement (for Wilder failing to show for the fight), breach of the escrow agreement (for Wilder's improperly instructing escrow agent to not release the funds), breach of the implied covenant of good faith and fair dealing (for Wilder acting to pressure WBC to cancel the bout) and defamation (for Wilder's statements to the press about Povetkin's alleged use of PEDs).

The case was set for an expedited trial on one issue only: whether Povetkin ingested Meldonium on or after January 1, 2016.  The January 1, 2016 date is significant because that is the date WADA put Meldonium on the banned substance list.  Part of Povetkin's argument was that he had legally ingested Meldonium in 2015 and that the positive test in April 2016 was only from remnants of his ingestion when it was legal.  In fact, there were three urine samples that Povetkin gave prior to this positive test (April 7, April 8 and April 11) that showed results similar to positive tests for Meldonium but were determined by VADA not to be Meldonium.  The experts on both sides of the case argued that those three tests supported their side's arguments.

On March 6, 2017, after a three-day trial, the jury took only 32 minutes of deliberation to find that Povetkin had indeed ingested Meldonium on or after January 1, 2016.   WOB filed the motions for Judgment as a Matter of Law and for a New Trial within a week of the verdict.

In the opinion issued today, in regards to the motion for Judgment as a Matter of Law, Judge Carter stated that the jury had heard "two interpretations of complex scientific evidence" and that "Wilder's expert testified that Povetkin's April 7, April 8, and April 11 urine samples contained a compound similar in weight to Meldonium, but [Wilder's expert] was adamant that Meldonium was not present.  [WOB]'s expert testified that Povetkin's April 7, April 8, and April 11 urine samples contained Meldonium, but a compound with similar weight interfered with Meldonium.  The jury was free to choose."  Judge Carter reasoned that even if the jury believed WOB's expert, it could still have found that Povetkin took Meldonium on or after January 1, 2016.  Judge Carter also held that the jury heard Povetkin's testimony that he only took "vitamins" from his trainer and chose to reject his testimony.  Thus, the Court held that the evidence supported the verdict and denied WOB's motion for Judgment as a Matter of Law.

Regarding the Motion for a New Trial, Judge Carter stated that WOB's "attempt to re-litigate expert testimony only underscores that the jury had to pick one expert's theory on Povetkin's samples or the other."  Judge Carter also rejected WOB's attempts to enter newly discovered evidence (a study finding that Meldonium may stay in the blood for up to 147 days and WADA's notice in May 2017 that only Meldonium over 100 ng/ml should be reported (Povetkin tested at 72 ng/ml)).  Carter found that the study was released on the first day of trial and could have been uncovered then and that WADA's notice was not to be considered because the bout agreement was executed in April 2016 under WADA's 2016 standards.  Thus, Judge Carter denied that Motion for a New Trial.

Judd Burstein, Wilder's counsel, has previously stated that once WOB's post-trial motions were denied, he would file a motion for summary judgment seeking damages and serve a motion for sanctions unless WOB dropped the defamation case.  We will continue to track how this case proceeds.

See Judge Carter's opinion below: