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Post by The Ultimate Nullifier on Aug 11, 2016 9:26:48 GMT -6
www.pwinsider.com/article/103954/marcus-bagwell-files-wwe-lawsuit-over-allegedly-owed-wwe-network-royalties.html?p=1MARCUS BAGWELL FILES WWE LAWSUIT OVER ALLEGEDLY OWED WWE NETWORK ROYALTIES By Mike Johnson on 2016-08-10 22:24:00 Former WCW star Marcus "Buff" Bagwell filed a lawsuit against World Wrestling Entertainment in the United States District Court of Connecticut on 8/9, suing over what he claims is owed royalties from usage of material featuring his matches on the WWE Network. Bagwell is alleging that he was under contract to WWE* from 1991 to 2001 by virtue of his contracts with World Championship Wrestling and WWE purchasing WCW in March of 2001. In the lawsuit, Bagwell notes that his WCW** deal expired four days after the then-WWF purchased the company. When he was signed by WWE to a new deal in June 2001, Bagwell was signed under the WCW brand*** and name for his new contract, which was executed by WWE's Ed Kaufman. That deal only lasted two months as he was released in August 2001 following his disastrous June 2001 Raw main event against Booker T that pretty much sealed the fate on WCW being a separate brand under WWE ownership. ECW was introduced into the storyline shorty after that with the two companies merging into "The Alliance" before the storyline concluded with the destruction of that group in November 2001. Bagwell's lawsuit claims that the WWE deal "merged" with aspects of his former WCW contractual terms, specifically the 1998 WCW deal that expired in March 2001. According to the filing, the WWE contract stated, "This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and all prior understandings, negotiations and agreements are merged into this Agreement. There are no other agreements, representations, or warranties not set forth herein with respect to the subject matter hereof. . ." Therefore, Bagwell is arguing that WWF are bound by his June 2001 WWE contract in regard to payment of royalties for PPV events and home video material. The lawsuit noted the following language from the contract that WWE has allegedly ignored. It should be noted that the language of WCW below pertains to the WWE-WCW version that existed as of the "Invasion" storyline in WWE. On PPVs: "WCW shall allocate 5% of the Net Receipts paid to WCW with respect to the direct sale by WCW of WCW Pay-Per-Views to a talent royalty pool. Thereafter, WCW shall pro-rate payment to Plaintiff and all other talent appearing in such WCW Pay-Per-Views in the same proportion as was the compensation paid to Plaintiff for his appearances in the pay-per-views to the total amount paid to all talent for their appearances on the pay-per-views." On Home Videos: "The WCW Video Product is a compilation or derivative work of multiple individual WCW Pay-Per-Views in their entirety, such as a collection of videos, e.g., a WrestleMania box set, payment to Plaintiff shall be calculated as follows: 5% of the Net Receipts paid to WCW shall comprise the talent royalty pool, which shall first be pro-rated based on the number of individual videos in the compilation, and then the payment to Plaintiff for each video shall be consistent with the royalty payment to the Plaintiff at the time each individual video was first released." Noting that net receipts would be the gross amount received by WWE, Bagwell is calling into question money allegedly owed to him because the WWE Network, which streams those old WCW PPV events, grossed $154.9 million in the final quarter of 2015. Bagwell is also claiming he is owed money from the Network revenue because of language in his 2001 WWE contract that reads, "“video cassettes, videodiscs, CD ROM, or other technology, including technology not yet created.” The argument is that the streaming technology used for the network falls under that description. The lawsuit claims that when WWE released Bagwell in August 2001, language from that agreement noted that WWE was buying out all of their obligations from the contract, with the exception of royalties that Bagwell would be owed going forward as determined by his contract. The language in the release also noted that Bagwell could not bring legal action against WWE as long as they maintained the terms of his Release agreement. Bagwell is now suing because he alleges WWE has now allegedly breached the agreement by not paying him royalties. Bagwell submitted a first quarter 2016 Royalty Statement sent to him by WWE showing that he was owed no royalties despite the WCW material being featured in the WWE Network's VOD section. What is interesting is that Bagwell acknowledges that under his 1998 WCW deal, he was owed no royalties for PPVs or videotapes. However, he is claiming he is now owed for that material as the WWE contract changed the language regarding that material. The lawsuit also acknowledges that WWE has successfully defended itself against similar claims from the Eddie Gilbert estate, former AWA star Doug "Somers" Somerson and former Global Wrestling Federation performer Stevie Ray (not to be confused with the WCW performer who used the same name) but states that those talents had no contractual right to sue WWE. Bagwell is arguing that due to the alleged breach of contract, he has that right, noting his lawsuit, "is not preempted by the Copyright Act because WWE owns the right to WCW copyrighted works featuring Plaintiff’s intellectual property, subject to royalty payment obligations for the sale of those copyrighted works (WCW Video Products of PPVs and Non PPVs)." The lawsuit also claims that Bagwell's WWE contract allows for him to have his own independent certified accountant audit WWE-WCW's books, citing, "for the purpose of verifying the accuracy thereof, during WCW’s normal business hours and upon reasonable notice. Such audit shall be conducted in a manner that will not unreasonably interfere with WCW’s normal business operations. Wrestler shall not audit WCW’s books and records more than twice during any calendar year and no such audit shall be conducted later than one (1) year after the last statement of royalties is given, delivered or sent to Wrestler. Each audit is limited to seven (7) days in duration. Statements of royalties may be changed from time to time to reflect year-end adjustments, to correct clerical errors and for similar purposes." According to the lawsuit, Bagwell attempted this in June 2016 and was initially told an audit could be done in late July or early August 2016, only to instead be informed by WWE's counsel, K&L Gates, that there would be no audit, as Bagwell's accountant, "asserted a pretextual and invalid audit request to attempt to stealthily obtain that information (WWE network royalty audit)" and that since Bagwell is not paid WWE Network royalties, "there is nothing to audit." Since WWE blocked Bagwell's attempts to audit the records as he was contractually allowed to do, he is now claiming that the company has forfeited any claim that Bagwell did not satisfy any of WWE's prerequisite actions contractually before he filed his lawsuit. The lawsuit is also stating that it is an officially filed dispute of WWE's most recent royalty statement for Bagwell, per the language in his June 2001 WWE contract. The lawsuit is also set up a class action lawsuit for performers in a similar situation (noting a sub-class for talents who signed specific WWE deals in the past when the language in those contracts did not specifically mention the WWE Network material) , noting that exempt from the class would be those who have signed a WWE Legends deal from January 2004 on as language in those deals specifically notes that the company will not pay them royalties for "Internet subscriptions or video on demand fees." The lawsuit also requests the court prevent WWE from placing PPV and non-PPV material on the WWE Network until the class are paid royalties and that the class be paid within 90 days of the end of a financial quarter. Bagwell has requested a trial by jury. WWE has not be served with nor have they commented on the lawsuit. They have until 11/9 to file a motion to dismiss the lawsuit. In April 2016, during an interview with the Two Man Power Trip podcast, WWE's lead counsel Jerry McDevitt commented on why talents from wrestling promotions who's video libraries are now owned by WWE are not owed royalties, stating, "Let me use ECW as an example. ECW if you recall your history went into Chapter 7 bankruptcy. Whenever you go into a Chapter 7 bankruptcy what happens is your assets and your liabilities are marshalled. The bankruptcy trustee tries to sell the assets of the bankruptcy estate to generate some cash to pay off creditors who would be for example any ECW talent that are owed money from ECW and would share any money that is available which is usually not very much because when you are bankrupt you don’t get very much and when somebody goes bankrupt like ECW does it essentially wipes out all the claims of anybody that they would have against ECW for contract royalties or contract claims against ECW. The assets of the company are put up for sale free and clear of all liens and that is part of the whole bankruptcy sale. When you think about it nobody is going to buy assets that carry with it liabilities. So what you had there was this entire film library of ECW that would have been sitting somewhere in a cardboard box right now and not being displayed anywhere, and the WWE decided it would buy and pay money to buy the films and the copyrights that go with those films and obtain from the bankruptcy court a bill of sale giving the WWE in exchange for the money we paid for those the sole right, title and interest to the copyrights of those works. That is why the WWE has the legal right to display them on the Network free and clear of any claims, plain and simple." Notes: *: While the company was known as WWF at the time, we have listed it as WWE to make it easier for readers to follow the story. **: All mentions of WCW denote the wrestling promotion owned by Turner Broadcasting. While describing WWE's version of WCW, we have listed it as WWE-WCW to dileante between the Turner version and the WWE owned version. ***: While Bagwell's 2001 deal with WWE was listed as under WCW, we have listed it as WWE above to make it easier for readers to follow the story.
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Post by The Ultimate Nullifier on Aug 15, 2016 11:21:10 GMT -6
www.wrestlinginc.com/wi/news/2016/0815/616525/5-interesting-things-about-buff-bagwell-wwe-lawsuit-current/5 Interesting Things About Buff Bagwell WWE Lawsuit: Current Contracts, Royalties, Bagwell's WWE Run On August 9, 2016, Marcus "Buff" Bagwell filed a class action complaint against World Wrestling Entertainment, Inc. in Connecticut United States District Court. The chief allegation is that he (and others) are "contractually owed royalty payments from World Wrestling Entertainment (WWE) for certain content that has been sold or licensed by the WWE on the World Wrestling Entertainment Network (WWE Network)". Five things about this lawsuit over royalties: 1. This is very similar to a lawsuit filed by another wrestler in April 2016. On April 6, 2016, Rene Goguen (better known as La Resistance's Rene Dupree) filed a similar suit in Connecticut United States District Court alleging that he had "not received contractually owed royalty payments from World Wrestling Entertainment (WWE) for certain content that has been sold or licensed by the WWE on the World Wrestling Entertainment Network (WWE Network) and on Netflix." Goguen suit was also a Class Action Complaint and was filed by Brendon P. Leydon of Stamford, CT and Clinton A. Krislov & Matthew T. Peterson of Chicago, IL. These are the same attorneys who filed Bagwell's lawsuit. The suit didn't last long at all. Less than a week after the initial complaint, a notice of voluntary dismissal was filed on April 11, 2016 by Goguen's lawyers. What happened? Lead attorney Jerry S. McDevitt told TheWrap, that Goguen had "signed a buyout agreement in 2011" which "waived any claim for future royalties for any kind for any reason". It seems that Goguen was not going to be a good lead plaintiff for this class action. 2. Current WWE contracts are explicit about lack of WWE Network royalties. Modern WWE booking agreements, such as the one signed by Stephanie McMahon-Levesque in October 2013, have clear language that WWE is not paying royalties related to the WWE Network. 7.5 No Royalties Paid to WRESTLER. Except as specifically set forth in Section 7.1 through 7.3 above, WRESTLER shall not be eligible for any payment or royalties with respect to any other goods, services or otherwise including without limitation to the following: television license fees; television subscription fees; internet subscription fees; subscription video on demand fees; magazine subscription fees and/or advertising; and/or distribution fees of any kind paid to PROMOTER by any entity in connection with the exploitation of the Intellectual Property. This sort of language began appearing in booking contracts around 2004 when the WWE launched the "WWE 24/7" service (later rechristened "WWE Classics on Demand"). Prior to that, such as in Brock Lesnar's 2003 contract, there was a much broader definition: 7.5 (a) (i) Royalties/Pay-Per-View Videos Sold By Licensees: PROMOTER shall allocate twenty-five percent (25%) of the Net Receipts paid to PROMOTER by Licensees authorized to reproduce and sell video cassettes, videodisc, CD ROM, or other technology, including technology not yet created (hereinafter referred to as "WWE Video Products"), of WWE pay-per-views in their entirety ("WWE Pay-Per-Views") to a talent royalty pool… Indeed, it was this language from Goguen's 2003 contract which the April lawsuit cited. These changes in booking contract language are likely to limit the scope of which performers would be eligible to join any class action suit over WWE Network royalties. That is why on the second try, they found another lead plaintiff (Bagwell) who only worked for WWE prior to 2004. Specifically, the Bagwell class action suit seeks to cover "WWE Controlled Performers" whose 1992-1998 contract covered WWE Video Products as "video programs" or 1999-2004 contract includes the "technology not created" language. However, people who have signed a "Nostalgia" or "Legends" contract or a booking contract with WWE after January 1, 2004 are excluded. 3. One of these lawyers is also involved with another lawsuit against WWE. Brendon P. Leydon is also one of the lead attorneys on Racketeering (RICO) Act suit that was filed on July 18, 2016 with 55 plaintiffs (Laurinaitis et al v. World Wrestling Entertainment, Inc et al). That suit has 16 counts covering everything from independent contractor misclassification, wrongful death, unconscionable contracts and fraud. This is one of the two so-called CTE (Chronic Traumatic Encephalopathy) suits which WWE is currently battling in Connecticut courts. The other case is the consolidated "Russ McCullough et al v. World Wrestling Entertainment Inc". 4. Buff Bagwell's tenure with WWE only lasted about nine weeks World Wrestling Federation Entertainment, Inc. announced the purchase of World Championship Wrestling (WCW) on March 23, 2001. WWFE had purchased the "global rights to the WCW brand, tape library, and other intellectual property rights." The 2001 Annual report notes that WWFE spent about $2.5 million to acquire the rights and another $1.8 million for "certain related costs". As part of the transaction, WWFE created a wholly owned subsidiary called "WCW, Inc." When WCW folded, WWE did not immediately pick up all of the existing talent contracts. Many of the wrestlers had signed deals which included guaranteed money. In order to hire the talent, WWE would need to negotiate a "contract buyout". As a result of a separate racial discrimination lawsuit (Onoo v . World Championship Wrestling, Inc ., Turner Sports.,) against World Championship Wrestling, we have an idea of some of the big-money deals that had been signed: Goldberg's four-year contract ran through June 2003 with an annual salary between $2.5 million (years 1-3) to $3.5 million (year 4) Ric Flair's three-year contract ran through February 2003 with an annual salary of $500,000 Bret Hart's five-year contract ran through November 2002 at $2.5 million per year Lex Luger's three-year contract ran through April 2002 at $1.4 million (year 2) to $1.6 million (year 3) Diamond Dallas Page's three-year contract ran through February 2002 at $1.35 million (year 3) Sting's three-year contract ran through January 2002 at $1.5 million per year Kevin Nash's five-year contract ran through December 2001 at $1.625 million (year 5) Scott Steiner's three-year contract ran through November 2001 at $750,000 per year According to an internal WCW talent contract database as of May 2000, Buff Bagwell's three-year contract was listed as ending in March 25, 2001 with an annual salary of $400,000. The timing is congruent with the copy of Bagwell's 1998 contract with World Championship Wrestling that was included in his lawsuit, though his compensation amounts were blacked out. Bagwell signed a contract with the WWE-owned subsidiary WCW, Inc. on May 18, 2001. His WWE career did not last long. He only performed twice for WWE – once at a house show on July 1, 2001 and once on July 2, 2001 on Raw is War. On August 7, 2001, World Wrestling Federation Entertainment, Inc. sent Bagwell a letter regarding a "early contract release" which did specify that Bagwell would still continue to receive "royalties due him pursuant to, and as determined by, the Contract." Bagwell's 2001 contract with WCW did include the "other technology, including technology not yet created" language. In addition, Bagwell's lawyers contend that the 2001 booking agreement with WCW, Inc. would merge "all prior understandings, negotiations, and agreements" and thus would cover the royalty obligations from Bagwell's time from 1991 to 2001 in World Championship Wrestling. 5. Bagwell's team tried unsuccessfully to look at WWE's books On June 23, 2016, Bagwell's legal team engaged a certified public accountant to examine WCW's books concerning the lack of WWE Network payments to Mr. Bagwell. Bagwell's 2001 contract specifically allowed for this sort of audit (at the wrestler's expense). However, WWE's reply (through McDevitt's law office K&L Gates) on August 5, 2016 was that this was a "pretextual and invalid audit request" because "there is nothing to audit" regarding WWE Network royalties. Bagwell has been receiving royalties from WWE for certain licensing (such as NWO Back in Black DVD and being in the "WWE: The Attitude Era" book). However, his Q1 2016 quarterly statement amounted to a paltry $64.40.
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Post by The Ultimate Nullifier on Sept 15, 2016 0:26:34 GMT -6
www.wrestlinginc.com/wi/news/2016/0913/617459/former-wwe-and-ecw-star-joins-buff-bagwell-lawsuit-against-the/Former WWE And ECW Star Joins Buff Bagwell's Lawsuit Against The Company Source: Wrestling Observer Newsletter As noted, former WWE and WCW star Marcus "Buff" Bagwell filed a lawsuit against WWE in US District Court of Connecticut last month, claiming that he is owed royalties for his matches that air on the WWE Network. Dave Meltzer reported in the latest issue of The Wrestling Observer that Scott Levy, f.k.a. Raven, has joined the suit as a co-plaintiff. Meltzer noted the last royalty check that Levy received for the second quarter of 2016 totaled $130.83. Bagwell had received royalties for the 2002 Vengeance pay-per-view, even though he wasn't with the company that year and didn't appear on the show. Bagwell's lawyers apparently had other questions that were never addressed regarding his royalties. They are claiming that WWE's bookkeeping is questionable, and that they were not able to audit it. This is not the first time that Levy has been involved in a lawsuit against the company. In 2008, he joined Mike Sanders and Chris Kanyon in a lawsuit against WWE over the classification of wrestlers as independent contractors. That case was ultimately dropped.
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Post by The Ultimate Nullifier on Sept 20, 2016 0:13:22 GMT -6
www.wrestlinginc.com/wi/news/2016/0919/617637/eva-marie-suspension-update/- The Inquisitr has a story here looking at Buff Bagwell's lawsuit against WWE. It noted that section 7.5(d) of the suit is likely where he has his best argument, as it deals with royalties from video appearances after WWE purchased WCW 2001: WCW shall allocate 5 [percent] of the Net Receipts paid to WCW with respect to the direct sale by Plaintiff of all other WCW Video Products other than those set forth in 7.5 (c)(i) and (c)(ii) above, to a talent royalty pool, from which WCW shall pay Plaintiff and all other talent appearing in such WCW Video Products pro-rata among Plaintiff and all other talent so featured.
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Post by The Ultimate Nullifier on Sept 21, 2016 11:05:13 GMT -6
www.pwinsider.com/article/104855/amended-bagwell-lawsuit-against-wwe-filed-over-royalties-former-ecw-world-champ-joins-lawsuit.html?p=1AMENDED BAGWELL LAWSUIT AGAINST WWE FILED OVER ROYALTIES, FORMER ECW WORLD CHAMP JOINS LAWSUIT By Mike Johnson on 2016-09-21 12:33:00 An amended complaint in the lawsuit brought by former WCW and (briefly) WWE performer Marcus Bagwell was filed with the United States District Court of Connecticut on 9/7. Former WWE, WCW and ECW star Scott "Raven" Levy has joined the lawsuit as a plaintiff. Bagwell initially sued on 8/9, alleging that he is owed royalties from usage of material featuring his matches on the WWE Network. Levy had once attempted to sue WWE over the independent contractor status that professional wrestlers under contract to the company are designated as, claiming they should instead be employees, several years back, but the lawsuit was dismissed. In the amended lawsuit, Levy and Bagwell are alleging that they are "have not received contractually owed royalty payments from World Wrestling Entertainment, Inc. (“WWE”) and/or WCW, Inc. (“WCW-WWE”) for certain content that has been sold or licensed by WWE or WCW-WWE on the World Wrestling Entertainment Network and for the nonpayment of all categories of royalties within 90 days following the end of the fiscal quarter." Bagwell and Levy claim that they are filing as a class lawsuit on behalf of similar performers, alleging that the class is owed in the area of $5 million. The argument that the pair are using is that the WWE Network should be providing royalties to talents, based on their contracts, with the argument being that the Network has essentially has replaced DVD royalties and that the language of the contracts at the time Bagwell and Levy were used by WWE allowed them to receive a certain percentage from DVD royalties. WWE contracts also noted that the royalties would be included on "technology yet to be created." The argument is that the streaming technology used for the network falls under that description. The lawsuit notes that the WWE Network grossed $159.4 million in 2015, but that in the case of Levy specifically, he is only being paid royalties on material that is sold on DVD even if it also appears on the Network - using the "True Story of Wrestlemania" and "Ladies and Gentlemen, My Name is Paul Heyman" as examples. It also cites that when Levy was released by WWE, the buyout involved noted that WWE no longer owed Levy, language from that agreement noted that WWE was buying out all of their obligations from the contract, with the exception of royalties that Levy would be owed going forward as determined by his contract. Bagwell's side of the lawsuit remains very much the same from his initial August filing. In the lawsuit, Bagwell alleged that he was under contract to WWE* from 1991 to 2001 by virtue of his contracts with World Championship Wrestling and WWE purchasing WCW in March of 2001. In the lawsuit, Bagwell notes that his WCW** deal expired four days after the then-WWF purchased the company. When he was signed by WWE to a new deal in June 2001, Bagwell was signed under the WCW brand*** and name for his new contract, which was executed by WWE's Ed Kaufman. That deal only lasted two months as he was released in August 2001 following his disastrous June 2001 Raw main event against Booker T that pretty much sealed the fate on WCW being a separate brand under WWE ownership. ECW was introduced into the storyline shortly after that with the two companies merging into "The Alliance" before the storyline concluded with the destruction of that group in November 2001. Interesting to note that in the amended lawsuit, Bagwell is claiming that WWE and WWE's version of WCW were two separate corporations but while he was signed to the latter, he was only receiving checks and orders from WWE itself. The lawsuit notes, "The corporate veil of WWE should be pierced because WWE actively and pervasively controlled WCW-WWE and intermingled the activities of the two corporations engaged in the same enterprise, while disregarding the separate nature of the corporate entities." Bagwell also claims that the WWE deal "merged" with aspects of his former WCW contractual terms, specifically the 1998 WCW deal that expired in March 2001. According to the filing, the WWE contract stated, "This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and all prior understandings, negotiations and agreements are merged into this Agreement. There are no other agreements, representations, or warranties not set forth herein with respect to the subject matter hereof. . ." So, Bagwell is arguing that WWF are bound by his June 2001 WWE contract in regard to payment of royalties for PPV events and home video material. The lawsuit noted the following language from the contract that WWE has allegedly ignored. It should be noted that the language of WCW below pertains to the WWE-WCW version that existed as of the "Invasion" storyline in WWE. On PPVs: "WCW shall allocate 5% of the Net Receipts paid to WCW with respect to the direct sale by WCW of WCW Pay-Per-Views to a talent royalty pool. Thereafter, WCW shall pro-rate payment to Plaintiff and all other talent appearing in such WCW Pay-Per-Views in the same proportion as was the compensation paid to Plaintiff for his appearances in the pay-per-views to the total amount paid to all talent for their appearances on the pay-per-views." On Home Videos: "The WCW Video Product is a compilation or derivative work of multiple individual WCW Pay-Per-Views in their entirety, such as a collection of videos, e.g., a WrestleMania box set, payment to Plaintiff shall be calculated as follows: 5% of the Net Receipts paid to WCW shall comprise the talent royalty pool, which shall first be pro-rated based on the number of individual videos in the compilation, and then the payment to Plaintiff for each video shall be consistent with the royalty payment to the Plaintiff at the time each individual video was first released." Noting that net receipts would be the gross amount received by WWE, Bagwell is calling into question money allegedly owed to him because the WWE Network, which streams those old WCW PPV events, grossed $154.9 million in the final quarter of 2015. Bagwell is also claiming he is owed money from the Network revenue because of language in his 2001 WWE contract that reads, "“video cassettes, videodiscs, CD ROM, or other technology, including technology not yet created.” Again, the argument is that the streaming technology used for the network falls under that description. The lawsuit claims that when WWE released Bagwell in August 2001, language from that agreement noted that WWE was buying out all of their obligations from the contract, with the exception of royalties that Bagwell would be owed going forward as determined by his contract. The language in the release also noted that Bagwell could not bring legal action against WWE as long as they maintained the terms of his Release agreement. Bagwell is now suing because he alleges WWE has now allegedly breached the agreement by not paying him royalties. Bagwell submitted a first quarter 2016 Royalty Statement sent to him by WWE showing that he was owed no royalties despite the WCW material being featured in the WWE Network's VOD section. What is interesting is that Bagwell acknowledges that under his 1998 WCW deal, he was owed no royalties for PPVs or videotapes. However, he is claiming he is now owed for that material as the WWE contract changed the language regarding that material. It also noted that he has received royalties for "NWO: Back in Black" on DVD, but not for the same material streaming via the WWE Network. Bagwell and Levy also allege that WWE failed to pay him within 90 days of the end of a financial quarter on numerous occasions. In the case of Bagwell, he even alleges he received royalties for the WWE Vengeance 2002 PPV, an event he did not appear on during a time period he was not even under contract to WWE. The lawsuit also acknowledges that WWE has successfully defended itself against similar claims from the Eddie Gilbert estate, former AWA star Doug "Somers" Somerson and former Global Wrestling Federation performer Stevie Ray (not to be confused with the WCW performer who used the same name) but states that those talents had no contractual right to sue WWE. Bagwell is arguing that due to the alleged breach of contract, he has that right, noting his lawsuit, "is not preempted by the Copyright Act because WWE owns the right to WCW copyrighted works featuring Plaintiff’s intellectual property, subject to royalty payment obligations for the sale of those copyrighted works (WCW Video Products of PPVs and Non PPVs)." The lawsuit also claims that Bagwell's WWE contract allows for him to have his own independent certified accountant audit WWE-WCW's books, citing, "for the purpose of verifying the accuracy thereof, during WCW’s normal business hours and upon reasonable notice. Such audit shall be conducted in a manner that will not unreasonably interfere with WCW’s normal business operations. Wrestler shall not audit WCW’s books and records more than twice during any calendar year and no such audit shall be conducted later than one (1) year after the last statement of royalties is given, delivered or sent to Wrestler. Each audit is limited to seven (7) days in duration. Statements of royalties may be changed from time to time to reflect year-end adjustments, to correct clerical errors and for similar purposes." According to the lawsuit, Bagwell attempted this in June 2016 and was initially told an audit could be done in late July or early August 2016, only to instead be informed by WWE's counsel, K&L Gates, that there would be no audit, as Bagwell's accountant, "asserted a pretextual and invalid audit request to attempt to stealthily obtain that information (WWE network royalty audit)" and that since Bagwell is not paid WWE Network royalties, "there is nothing to audit." Since WWE blocked Bagwell's attempts to audit the records as he was contractually allowed to do, he is now claiming that the company has forfeited any claim that Bagwell did not satisfy any of WWE's prerequisite actions contractually before he filed his lawsuit. The lawsuit is also stating that it is an officially filed dispute of WWE's most recent royalty statement for Bagwell, per the language in his June 2001 WWE contract. The lawsuit is also set up a class action lawsuit for performers in a similar situation (noting a sub-class for talents who signed specific WWE deals in the past when the language in those contracts did not specifically mention the WWE Network material) , noting that exempt from the class would be those who have signed a WWE Legends deal from January 2004 on as language in those deals specifically notes that the company will not pay them royalties for "Internet subscriptions or video on demand fees." The lawsuit also requests the court prevent WWE from placing PPV and non-PPV material on the WWE Network until the class are paid royalties and that the class be paid within 90 days of the end of a financial quarter. Bagwell and Levy have requested a trial by jury. WWE has until 10/8 to respond. In April 2016, well prior to this lawsuit being filed, during an interview with the Two Man Power Trip podcast, WWE's lead counsel Jerry McDevitt commented on why talents from wrestling promotions who's video libraries are now owned by WWE are not owed royalties, stating, "Let me use ECW as an example. ECW if you recall your history went into Chapter 7 bankruptcy. Whenever you go into a Chapter 7 bankruptcy what happens is your assets and your liabilities are marshalled. The bankruptcy trustee tries to sell the assets of the bankruptcy estate to generate some cash to pay off creditors who would be for example any ECW talent that are owed money from ECW and would share any money that is available which is usually not very much because when you are bankrupt you don’t get very much and when somebody goes bankrupt like ECW does it essentially wipes out all the claims of anybody that they would have against ECW for contract royalties or contract claims against ECW. The assets of the company are put up for sale free and clear of all liens and that is part of the whole bankruptcy sale. When you think about it nobody is going to buy assets that carry with it liabilities. So what you had there was this entire film library of ECW that would have been sitting somewhere in a cardboard box right now and not being displayed anywhere, and the WWE decided it would buy and pay money to buy the films and the copyrights that go with those films and obtain from the bankruptcy court a bill of sale giving the WWE in exchange for the money we paid for those the sole right, title and interest to the copyrights of those works. That is why the WWE has the legal right to display them on the Network free and clear of any claims, plain and simple." PWInsider.com received the following statement from McDevitt shortly after the initial lawsuit was filed by Bagwell last month: "Since the first purported class action case was brought on behalf of Billy Jack Haynes almost two years ago, this pack of class action lawyers have filed by my count 14 different complaints or amended complaints. All of them have been full of patently false allegations, and none of them have gone anywhere. They haven't got a penny, and the judge is in the process of deciding whether to throw other ones out. Bagwell's lawsuit is much the same. It is based on clearly false facts, and would embarrass a first year law student because of the ignorance of basic contract law principles. Bagwell was never promised a penny by anybody for the use of WCW archival footage. Not by Turner and not by WWE, and he knows it. Like I did before with [Rene] Dupree's bad faith lawsuit, I will be demanding they withdraw this latest suit next week. If they don't, we will move to dismiss, ask for sanctions, and seek to recover counsel fees from Bagwell." Obviously, Bagwell has not withdrawn the lawsuit, so we will continue to follow where the legal process takes all parties. Notes: *: While the company was known as WWF at the time, we have listed it as WWE to make it easier for readers to follow the story. **: All mentions of WCW denote the wrestling promotion owned by Turner Broadcasting. While describing WWE's version of WCW, we have listed it as WWE-WCW to dileniate between the Turner version and the WWE owned version. ***: While Bagwell's 2001 deal with WWE was listed as under WCW, we have listed it as WWE above to make it easier for readers to follow the story. The lone exceptions is language from the lawsuit, which has not been edited by PWInsider.com.
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Post by The Ultimate Nullifier on Oct 15, 2016 22:21:36 GMT -6
www.pwinsider.com/article/105396/bagwell-vs-wwe-lawsuit-update.html?p=1BAGWELL VS. WWE LAWSUIT UPDATE By Mike Johnson on 2016-10-15 15:01:00 United States District of Connecticut Judge Janet C. Hall ruled on 10/11 that the lawsuit brought against WWE by former WCW and WWE performer Marcus Bagwell over allegedly owed royalties from usage of material featuring his matches on the WWE Network will not be transferred over to the jurisdiction of Judge Vanessa L. Bryant and will not be folded into the currently ongoing WWE concussion-related lawsuits. In her ruling, Judge Hall decreed that the two cases "are not related." WWE had requested the transfer, citing that the concussion-related lawsuit was similar to the ones brought by a number of former WWE performers, covered similar ground (employee vs. independent contractor allegations) and featured the same attorneys representing the plaintiffs, and that Judge Bryant had been overseeing the other previous lawsuits that WWE felt were similar and had consolidated them. Bagwell initially sued on 8/9, alleging that he is owed royalties from usage of material featuring his matches on the WWE Network. On 9/7, an amended lawsuit was filed with former WWE, WCW and ECW star Scott "Raven" Levy joining the lawsuit. Levy had once attempted to sue WWE over the independent contractor status that professional wrestlers under contract to the company are designated as, claiming they should instead be employees, several years back, but the lawsuit was dismissed. In the amended lawsuit filed last month, Levy and Bagwell alleged that they "have not received contractually owed royalty payments from World Wrestling Entertainment, Inc. (“WWE”) and/or WCW, Inc. (“WCW-WWE”) for certain content that has been sold or licensed by WWE or WCW-WWE on the World Wrestling Entertainment Network and for the nonpayment of all categories of royalties within 90 days following the end of the fiscal quarter." Bagwell and Levy claim that they are filing as a class lawsuit on behalf of similar performers, alleging that the class is owed in the area of $5 million. The argument that the pair are using is that the WWE Network should be providing royalties to talents, based on their contracts, with the argument being that the Network has essentially has replaced DVD royalties and that the language of the contracts at the time Bagwell and Levy were used by WWE allowed them to receive a certain percentage from DVD royalties. WWE contracts also noted that the royalties would be included on "technology yet to be created." The argument is that the streaming technology used for the network falls under that description. The lawsuit notes that the WWE Network grossed $159.4 million in 2015, but that in the case of Levy specifically, he is only being paid royalties on material that is sold on DVD even if it also appears on the Network - using the "True Story of Wrestlemania" and "Ladies and Gentlemen, My Name is Paul Heyman" as examples. It also cites that when Levy was released by WWE, the buyout involved noted that WWE no longer owed Levy, language from that agreement noted that WWE was buying out all of their obligations from the contract, with the exception of royalties that Levy would be owed going forward as determined by his contract. Bagwell's side of the lawsuit remains very much the same from his initial August filing. In the lawsuit, Bagwell alleged that he was under contract to WWE* from 1991 to 2001 by virtue of his contracts with World Championship Wrestling and WWE purchasing WCW in March of 2001. In the lawsuit, Bagwell notes that his WCW** deal expired four days after the then-WWF purchased the company. When he was signed by WWE to a new deal in June 2001, Bagwell was signed under the WCW brand*** and name for his new contract, which was executed by WWE's Ed Kaufman. That deal only lasted two months as he was released in August 2001 following his disastrous June 2001 Raw main event against Booker T that pretty much sealed the fate on WCW being a separate brand under WWE ownership. ECW was introduced into the storyline shortly after that with the two companies merging into "The Alliance" before the storyline concluded with the destruction of that group in November 2001. Interesting to note that in the amended lawsuit, Bagwell is claiming that WWE and WWE's version of WCW were two separate corporations but while he was signed to the latter, he was only receiving checks and orders from WWE itself. The lawsuit notes, "The corporate veil of WWE should be pierced because WWE actively and pervasively controlled WCW-WWE and intermingled the activities of the two corporations engaged in the same enterprise, while disregarding the separate nature of the corporate entities." Bagwell also claims that the WWE deal "merged" with aspects of his former WCW contractual terms, specifically the 1998 WCW deal that expired in March 2001. According to the filing, the WWE contract stated, "This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and all prior understandings, negotiations and agreements are merged into this Agreement. There are no other agreements, representations, or warranties not set forth herein with respect to the subject matter hereof. . ." So, Bagwell is arguing that WWF are bound by his June 2001 WWE contract in regard to payment of royalties for PPV events and home video material. The lawsuit noted the following language from the contract that WWE has allegedly ignored. It should be noted that the language of WCW below pertains to the WWE-WCW version that existed as of the "Invasion" storyline in WWE. On PPVs: "WCW shall allocate 5% of the Net Receipts paid to WCW with respect to the direct sale by WCW of WCW Pay-Per-Views to a talent royalty pool. Thereafter, WCW shall pro-rate payment to Plaintiff and all other talent appearing in such WCW Pay-Per-Views in the same proportion as was the compensation paid to Plaintiff for his appearances in the pay-per-views to the total amount paid to all talent for their appearances on the pay-per-views." On Home Videos: "The WCW Video Product is a compilation or derivative work of multiple individual WCW Pay-Per-Views in their entirety, such as a collection of videos, e.g., a WrestleMania box set, payment to Plaintiff shall be calculated as follows: 5% of the Net Receipts paid to WCW shall comprise the talent royalty pool, which shall first be pro-rated based on the number of individual videos in the compilation, and then the payment to Plaintiff for each video shall be consistent with the royalty payment to the Plaintiff at the time each individual video was first released." Noting that net receipts would be the gross amount received by WWE, Bagwell is calling into question money allegedly owed to him because the WWE Network, which streams those old WCW PPV events, grossed $154.9 million in the final quarter of 2015. Bagwell is also claiming he is owed money from the Network revenue because of language in his 2001 WWE contract that reads, "“video cassettes, videodiscs, CD ROM, or other technology, including technology not yet created.” Again, the argument is that the streaming technology used for the network falls under that description. The lawsuit claims that when WWE released Bagwell in August 2001, language from that agreement noted that WWE was buying out all of their obligations from the contract, with the exception of royalties that Bagwell would be owed going forward as determined by his contract. The language in the release also noted that Bagwell could not bring legal action against WWE as long as they maintained the terms of his Release agreement. Bagwell is now suing because he alleges WWE has now allegedly breached the agreement by not paying him royalties. Bagwell submitted a first quarter 2016 Royalty Statement sent to him by WWE showing that he was owed no royalties despite the WCW material being featured in the WWE Network's VOD section. What is interesting is that Bagwell acknowledges that under his 1998 WCW deal, he was owed no royalties for PPVs or videotapes. However, he is claiming he is now owed for that material as the WWE contract changed the language regarding that material. It also noted that he has received royalties for "NWO: Back in Black" on DVD, but not for the same material streaming via the WWE Network. Bagwell and Levy also allege that WWE failed to pay him within 90 days of the end of a financial quarter on numerous occasions. In the case of Bagwell, he even alleges he received royalties for the WWE Vengeance 2002 PPV, an event he did not appear on during a time period he was not even under contract to WWE. The lawsuit also acknowledges that WWE has successfully defended itself against similar claims from the Eddie Gilbert estate, former AWA star Doug "Somers" Somerson and former Global Wrestling Federation performer Stevie Ray (not to be confused with the WCW performer who used the same name) but states that those talents had no contractual right to sue WWE. Bagwell is arguing that due to the alleged breach of contract, he has that right, noting his lawsuit, "is not preempted by the Copyright Act because WWE owns the right to WCW copyrighted works featuring Plaintiff’s intellectual property, subject to royalty payment obligations for the sale of those copyrighted works (WCW Video Products of PPVs and Non PPVs)." The lawsuit also claims that Bagwell's WWE contract allows for him to have his own independent certified accountant audit WWE-WCW's books, citing, "for the purpose of verifying the accuracy thereof, during WCW’s normal business hours and upon reasonable notice. Such audit shall be conducted in a manner that will not unreasonably interfere with WCW’s normal business operations. Wrestler shall not audit WCW’s books and records more than twice during any calendar year and no such audit shall be conducted later than one (1) year after the last statement of royalties is given, delivered or sent to Wrestler. Each audit is limited to seven (7) days in duration. Statements of royalties may be changed from time to time to reflect year-end adjustments, to correct clerical errors and for similar purposes." According to the lawsuit, Bagwell attempted this in June 2016 and was initially told an audit could be done in late July or early August 2016, only to instead be informed by WWE's counsel, K&L Gates, that there would be no audit, as Bagwell's accountant, "asserted a pretextual and invalid audit request to attempt to stealthily obtain that information (WWE network royalty audit)" and that since Bagwell is not paid WWE Network royalties, "there is nothing to audit." Since WWE blocked Bagwell's attempts to audit the records as he was contractually allowed to do, he is now claiming that the company has forfeited any claim that Bagwell did not satisfy any of WWE's prerequisite actions contractually before he filed his lawsuit. The lawsuit is also stating that it is an officially filed dispute of WWE's most recent royalty statement for Bagwell, per the language in his June 2001 WWE contract. The lawsuit is also set up a class action lawsuit for performers in a similar situation (noting a sub-class for talents who signed specific WWE deals in the past when the language in those contracts did not specifically mention the WWE Network material) , noting that exempt from the class would be those who have signed a WWE Legends deal from January 2004 on as language in those deals specifically notes that the company will not pay them royalties for "Internet subscriptions or video on demand fees." The lawsuit also requests the court prevent WWE from placing PPV and non-PPV material on the WWE Network until the class are paid royalties and that the class be paid within 90 days of the end of a financial quarter. Bagwell and Levy have requested a trial by jury. WWE has until 11/9 to respond to the lawsuit. There is a conference regarding the case set for 11/4 at 3 PM. In April 2016, well prior to this lawsuit being filed, during an interview with the Two Man Power Trip podcast, WWE's lead counsel Jerry McDevitt commented on why talents from wrestling promotions who's video libraries are now owned by WWE are not owed royalties, stating, "Let me use ECW as an example. ECW if you recall your history went into Chapter 7 bankruptcy. Whenever you go into a Chapter 7 bankruptcy what happens is your assets and your liabilities are marshalled. The bankruptcy trustee tries to sell the assets of the bankruptcy estate to generate some cash to pay off creditors who would be for example any ECW talent that are owed money from ECW and would share any money that is available which is usually not very much because when you are bankrupt you don’t get very much and when somebody goes bankrupt like ECW does it essentially wipes out all the claims of anybody that they would have against ECW for contract royalties or contract claims against ECW. The assets of the company are put up for sale free and clear of all liens and that is part of the whole bankruptcy sale. When you think about it nobody is going to buy assets that carry with it liabilities. So what you had there was this entire film library of ECW that would have been sitting somewhere in a cardboard box right now and not being displayed anywhere, and the WWE decided it would buy and pay money to buy the films and the copyrights that go with those films and obtain from the bankruptcy court a bill of sale giving the WWE in exchange for the money we paid for those the sole right, title and interest to the copyrights of those works. That is why the WWE has the legal right to display them on the Network free and clear of any claims, plain and simple."
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Post by The Ultimate Nullifier on May 8, 2017 17:01:11 GMT -6
www.pwinsider.com/article/109479/many-aspects-of-bagwell-raven-lawsuit-against-wwe-concerning-wwe-network-royalties-allowed-to-move-forward-complete-details.html?p=1MANY ASPECTS OF BAGWELL & RAVEN LAWSUIT AGAINST WWE CONCERNING WWE NETWORK ROYALTIES ALLOWED TO MOVE FORWARD, COMPLETE DETAILS By Mike Johnson on 2017-05-08 13:09:00 The United States District Court for the District of Connecticut issued a 30-page ruling on 5/5 regarding World Wrestling Entertainment's motion to dismiss the lawsuit brought against the company by former WWE and ECW wrestlers Marcus Bagwell and Scott Levy over allegedly owed royalties from usage of material featuring their matches on the WWE Network, dismissing some aspects of the lawsuit but allowing the majority to live on. Bagwell initially sued on 8/9/16, alleging that he is owed royalties from usage of material featuring his matches on the WWE Network. Levy had once attempted to sue WWE over the independent contractor status that professional wrestlers under contract to the company are designated as, claiming they should instead be employees, several years back, but the lawsuit was dismissed. The pair are alleging that they are "have not received contractually owed royalty payments from World Wrestling Entertainment, Inc. (“WWE”) and/or WCW, Inc. (“WCW-WWE”) for certain content that has been sold or licensed by WWE or WCW-WWE on the World Wrestling Entertainment Network and for the nonpayment of all categories of royalties within 90 days following the end of the fiscal quarter." Bagwell and Levy claim that they are filing as a class lawsuit on behalf of similar performers, alleging that the class is owed in the area of $5 million. The argument that the pair are using is that the WWE Network should be providing royalties to talents, based on their contracts, with the argument being that the Network has essentially has replaced DVD royalties and that the language of the contracts at the time Bagwell and Levy were used by WWE allowed them to receive a certain percentage from DVD royalties. WWE contracts also noted that the royalties would be included on "technology yet to be created." The argument is that the streaming technology used for the network falls under that description. The lawsuit filing last year noted that the WWE Network grossed $159.4 million in 2015, but that in the case of Levy specifically, he is only being paid royalties on material that is sold on DVD even if it also appears on the Network - using the "True Story of Wrestlemania" and "Ladies and Gentlemen, My Name is Paul Heyman" as examples. It also cites that when Levy was released by WWE, the buyout involved noted that WWE no longer owed Levy, language from that agreement noted that WWE was buying out all of their obligations from the contract, with the exception of royalties that Levy would be owed going forward as determined by his contract. CLAIMS AGAINST WCW, INC. ARE DISMISSED In the lawsuit, Bagwell alleged that he was under contract to WWE* from 1991 to 2001 by virtue of his contracts with World Championship Wrestling and WWE purchasing WCW in March of 2001. In the lawsuit, Bagwell notes that his WCW** deal expired four days after the then-WWF purchased the company. When he was signed by WWE to a new deal in June 2001, Bagwell was signed under the WCW brand*** and name for his new contract, which was executed by WWE's Ed Kaufman. That deal only lasted two months as he was released in August 2001 following his disastrous June 2001 Raw main event against Booker T that pretty much sealed the fate on WCW being a separate brand under WWE ownership. ECW was introduced into the storyline shortly after that with the two companies merging into "The Alliance" before the storyline concluded with the destruction of that group in November 2001. Bagwell has claimed that WWE and WWE's version of WCW were two separate corporations but while he was signed to the latter, he was only receiving checks and orders from WWE itself. The lawsuit noted, "The corporate veil of WWE should be pierced because WWE actively and pervasively controlled WCW-WWE and intermingled the activities of the two corporations engaged in the same enterprise, while disregarding the separate nature of the corporate entities."In the 5/5 ruling, Judge Janet Hall, who is presiding over the case, dismissed any claims against WCW, Inc., the company WWE created and signed talents under during the time period they intended to launch and operate World Championship Wrestling as a separate company from WWE in 2001 when they purchased WCW from Turner Broadcasting. Hall's decision was based on the idea that according to corporate paperwork for WCW, Inc. in the State of Delaware, where it was incorporated, it was officially merged into WWE's corporate company in August 2011. Therefore WCW, Inc. doesn't exist and cannot be sued. Hall has ruled that if there were any liabilities found on WCW, Inc.'s end over the course of the case, WWE would be responsible for them as the surviving company in the merger. So, Bagwell can no longer sue WCW, Inc. as it doesn't exist and WWE has effectively replaced it. COURT DOES NOT DISMISS ROYALTY ALLEGATIONS...AND SHOOTS DOWN WWE CLAIMS THAT THE NETWORK SUBSCRIPTIONS ARE NOT EQUAL TO VIDEO SALE In their lawsuit, Bagwell and Levy alleged that WWE failed to pay them royalties within 90 days of the end of a financial quarter on numerous occasions. In the case of Bagwell, he even alleges he received royalties for the WWE Vengeance 2002 PPV, an event he did not appear on during a time period he was not even under contract to WWE. Their lawsuit also acknowledges that WWE has successfully defended itself against similar claims from the Eddie Gilbert estate, former AWA star Doug "Somers" Somerson and former Global Wrestling Federation performer Stevie Ray (not to be confused with the WCW performer who used the same name) but stated that those talents had no contractual right to sue WWE. Bagwell has argued that due to the alleged breach of contract, he has that right, noting his lawsuit, "is not preempted by the Copyright Act because WWE owns the right to WCW copyrighted works featuring Plaintiff’s intellectual property, subject to royalty payment obligations for the sale of those copyrighted works (WCW Video Products of PPVs and Non PPVs)."' In their lawsuit, Bagwell and Levy claimed they were owed royalties for WWE subscription sales of content they would be featured on. Bagwell also claimed that the WWE deal "merged" with aspects of his former WCW contractual terms, specifically the 1998 WCW deal that expired in March 2001. According to the 2016 lawsuit filing, the WWE contract stated, "This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and all prior understandings, negotiations and agreements are merged into this Agreement. There are no other agreements, representations, or warranties not set forth herein with respect to the subject matter hereof. . ." So, Bagwell was arguing that WWF are bound by his June 2001 WWE contract in regard to payment of royalties for PPV events and home video material. The lawsuit noted the following language from the contract that WWE has allegedly ignored. It should be noted that the language of WCW below pertains to the WWE-WCW version that existed as of the "Invasion" storyline in WWE. On PPVs: "WCW shall allocate 5% of the Net Receipts paid to WCW with respect to the direct sale by WCW of WCW Pay-Per-Views to a talent royalty pool. Thereafter, WCW shall pro-rate payment to Plaintiff and all other talent appearing in such WCW Pay-Per-Views in the same proportion as was the compensation paid to Plaintiff for his appearances in the pay-per-views to the total amount paid to all talent for their appearances on the pay-per-views." On Home Videos: "The WCW Video Product is a compilation or derivative work of multiple individual WCW Pay-Per-Views in their entirety, such as a collection of videos, e.g., a WrestleMania box set, payment to Plaintiff shall be calculated as follows: 5% of the Net Receipts paid to WCW shall comprise the talent royalty pool, which shall first be pro-rated based on the number of individual videos in the compilation, and then the payment to Plaintiff for each video shall be consistent with the royalty payment to the Plaintiff at the time each individual video was first released." Noting that net receipts would be the gross amount received by WWE, Bagwell is calling into question money allegedly owed to him because the WWE Network, which streams those old WCW PPV events, grossed $154.9 million in the final quarter of 2015. Bagwell is also claiming he is owed money from the Network revenue because of language in his 2001 WWE contract that reads, “video cassettes, videodiscs, CD ROM, or other technology, including technology not yet created.” Again, the argument is that the streaming technology used for the network falls under that description. The lawsuit claims that when WWE released Bagwell in August 2001, language from that agreement noted that WWE was buying out all of their obligations from the contract, with the exception of royalties that Bagwell would be owed going forward as determined by his contract. The language in the release also noted that Bagwell could not bring legal action against WWE as long as they maintained the terms of his Release agreement. Bagwell is now suing because he alleges WWE has now allegedly breached the agreement by not paying him royalties. Bagwell had submitted a first quarter 2016 Royalty Statement sent to him by WWE showing that he was owed no royalties despite the WCW material being featured in the WWE Network's VOD section. What was interesting is that Bagwell acknowledges that under his 1998 WCW deal, he was owed no royalties for PPVs or videotapes. However, he is claiming he is now owed for that material as the WWE contract changed the language regarding that material. It also noted that he has received royalties for "NWO: Back in Black" on DVD, but not for the same material streaming via the WWE Network. WWE has argued that a WWE Network subscription is not due a royalty payment to talent, arguing that unlike a DVD or a VHS tape, there was no sale of a physical copy of content to a consumer and that paid subscribers to the WWE Network were not buying content, but licensing the right to view it via their subscription. In her response to the motion, Judge Hall noted, "In any event, there can be little doubt that WWE is selling something to subscribers to the WWE Network. WWE understandably avoids using the word “sale”— or any variation thereof—in describing its interaction with WWE Network customers. Put colloquially, however, WWE sells subscriptions to the WWE Network, enabling subscribers to view content (both pay-per-view and non-pay-per-view videos) to which they would not otherwise have access. Nothing in the Booking Contract, copyright law, or any portion of Connecticut state law so limits the term “direct sale” as to unambiguously foreclose plaintiffs’ claims. That being the case, WWE’s arguments for dismissal that are grounded in the argument that “direct sale” does not—as a matter of law—cover the provision of streaming video on the WWE Network are not persuasive." Hall also wrote that the court was "unpersuaded" by WWE's argument that WWE Network subscriptions did not fall under the category of "Video Products" as defined in a WWE Booking Contract. WWE is claiming that the term "technology yet created" refers to future physical content, i.e. if a new home video product was released (i.e. the creation of DVDs replacing VHS, etc.) not streaming technology. Hall wrote, "Similarly, WWE’s and the plaintiffs’ use of broad phraseology in defining technologies to be covered by the royalty provisions strongly suggests that, at the very least, there remains ambiguity as to whether streaming videos on the WWE Network qualifies as a Video Product." Hall also noted that while the Plaintiffs have claimed that the WWE Network is using the Internet to distribute "Video Products", WWE's language in their booking contracts does not provide a precise reason as to why that claim should be dismissed, noting that there is no mention of the Internet in the language of the contracts and that if that term had been included, "The contract would be nonsensical if “Internet” were included in Paragraph 7.5(a)’s definition of “Video Products,” as it does not appear there has yet been any effort by WWE to effectuate “direct sale ” of the Internet."
The court also noted that under the State Law of Connecticut, plaintiffs in lawsuits “will not construe a contract’s language in such a way that it would lead to an absurd result.” - something that WWE has argued would happen since there is no proper way of calculating royalties on material viewed via the WWE Network. Judge Hall, disagreed with the idea that the lawsuit would indeed "lead to an absurd amount", noting, "There are likely several plausible ways to calculate the royalty payments plaintiffs demand. For example, it might be that the proper way to perform the royalty calculation is to determine the number of times a specific video on the WWE Network is viewed as compared to the total number of video views, divide the gross sales derived from the WWE Network in that proportion, and create the talent royalty pool to be paid to the wrestlers appearing in the specific video from 5% of that value. To be clear, the court is not holding here that a particular method of calculating any royalty obligation on the part of WWE is the correct way, but rather offers a plausible method to show that plaintiffs’ interpretation of the Booking Contracts does not appear to render them unworkable."
The Judge also noted that due to the fact that WWE has in the past paid Bagwell royalties from materials that fall under what would have been the WCW, Inc. umbrella "plausibly suggest that WWE has some way of calculating royalties derived from WCWI works." WWE has claimed that Bagwell was paid "erroneously" at times in the past - obviously referencing at least the royalties paid to Bagwell for the 2002 Vengeance PPV, a show he didn't appear on and wasn't even under contract to WWE for.
Regarding whether WWE owed Bagwell royalties from his time under WWE contract for WCW material, the court noted that all agreed Bagwell was not owed anything from his WCW contracts, but that it is conceivable that Bagwell's 2001 deal with WWE could have created a "new entitlement to royalties" for the old WCW material. Judge Hall noted, "WWE has not directed the court’s attention to any provision of the Booking Contract that explicitly limits the royalty entitlement only to money derived from videos produced by WWE or WCW, Inc." She also wrote, "Notwithstanding the fact that plaintiffs’ original contract with WCWI did not pay them royalties, there is no reason WWE could not subsequently contract with plaintiffs to pay royalties on WCW videos, precisely as plaintiffs have alleged." So, WWE's attempts to dismiss that claim was denied.
COURT DOES NOT DISMISS WWE'S CLAIMS THAT BAGWELL AND RAVEN SHOULD NOT BE ALLOWED TO AUDIT WWE BOOKS
The 2016 lawsuit filing against WWE claimed that Bagwell's WWE contract allows for him to have his own independent certified accountant audit WWE-WCW's books, citing, "for the purpose of verifying the accuracy thereof, during WCW’s normal business hours and upon reasonable notice. Such audit shall be conducted in a manner that will not unreasonably interfere with WCW’s normal business operations. Wrestler shall not audit WCW’s books and records more than twice during any calendar year and no such audit shall be conducted later than one (1) year after the last statement of royalties is given, delivered or sent to Wrestler. Each audit is limited to seven (7) days in duration. Statements of royalties may be changed from time to time to reflect year-end adjustments, to correct clerical errors and for similar purposes."
According to the lawsuit, Bagwell attempted to do exactly that in June 2016 and was initially told an audit could be done in late July or early August 2016, only to later be informed by WWE's counsel, K&L Gates, that there would be no audit, as Bagwell's accountant, "asserted a pretextual and invalid audit request to attempt to stealthily obtain that information (WWE network royalty audit)" and that since Bagwell is not paid WWE Network royalties, "there is nothing to audit."
Since WWE blocked Bagwell's attempts to audit the records as he was contractually allowed to do, he is now claiming that the company has forfeited any claim that Bagwell did not satisfy any of WWE's prerequisite actions contractually before he filed his lawsuit. The lawsuit is also stating that it is an officially filed dispute of WWE's most recent royalty statement for Bagwell, per the language in his June 2001 WWE contract.
The lawsuit also noted that Levy did not even attempt to file a claim for an audit on his own, as Bagwell's experiences led him to believe that WWE would not allow anyone to audit the financials.
Judge Hall ruled that since it is not clear yet whether Bagwell is indeed owed royalties or not, it is impossible to rule out that he would be allowed to audit the company's financials in regard to whether those royalties have been properly paid out or not.
In regard to Levy, Hall wrote, "Levy’s suggestion that any request to audit the royalty records would be fruitless is convincing. To be sure, though WWE argues that Bagwell is not owed any royalties—and any royalties he has received are entirely in error —it does not make so broad an argument regarding Levy’s entitlement to royalties. While WWE clearly contends that Levy is not entitled to royalty payments from the WWE Network, it does not appear to dispute that his Booking Contract entitles him to some royalties, presumably from sales of WWE-produced content. Nevertheless, WWE’s position with respect to Bagwell’s audit request makes clear that it would not permit anyone to audit, at the very least, the portion of its books related to the WWE Network. Those records being the records relevant to the claims asserted in the FAC, the court is unpersuaded by WWE’s suggestion that Levy must make an attempt sure to be rejected."
COURT RULES WWE DOES NOT HAVE LIABILITY OVER ANYTHING DERIVED FROM TURNER-OWNED WCW ERA
WWE did get the court to side with them when it came to the idea that WWE would be financially responsible for any liabilities the court may find in regard to royalties owed to the talents from their time with World Championship Wrestling when WCW was under the Turner Broadcasting umbrella. Bagwell's lawsuit had alleged that as the company that purchased WCW, WWE also maintained any liabilities that came with the company.
WWE argued that the plaintiffs had not alleged that WCW owed them any royalty obligations not had they claimed any factual reasoning that would lead the court to make an exception to the idea that by purchasing WCW, WWE would be responsible for the "obligations of the corporation from which it made the purchase." The court ruled that any potential liability would be in regard to booking contracts signed with WWE or WCW, Inc. after WWE had purchased WCW. Hall wrote, "The fact that Bagwell had received some royalty payouts from WWE does not render plaintiffs' successor liability claims plausible, in the fact of a lack of any dispute that plaintiffs' WCWI contracts did not entitle them to royalties."
COURT ALLOWS ALLEGATION OF WWE'S 'BREACH OF FIDICUARY DUTY' TO MOVE FORWARD
Bagwell and Levy have alleged that WWE breached their fiduciary duty to them by not "honestly" accounting for the royalties they are owed. While WWE attempted to shoot that claim down, stating that the nature of the Booking Contracts the talents signed invalidated those claims. The court did not agree that the examples they presented were within line with Bagwell and Levy's allegations. Judge Hall wrote, "This is more than a “mere contractual relationship”: plaintiffs relied on the accuracy of the royalty statements they received from WWE, with little means of regularly verifying WWE’s compliance with the Booking Contracts."
WWE's attempts to get a claim that they allegedly violated Connecticut Unfair Trade Practices Act was also unsuccessful at this juncture.
COURT SHOOTS DOWN UNJUST ENRICHMENT CLAIM
In regard to a claim that WWE is unjustly enriching themselves from the content featuring Bagwell and Levy to move forward, WWE has claimed they own the copyrights on that material. WWE requested a dismissal of those claims, citing, "(1) because no claim for unjust enrichment may lie where there is an express contract between the parties that covers the same subject matter as the unjust enrichment claim; (2) because if there was no contract between the parties, plaintiffs are not otherwise entitled to royalties for the sale of copyrighted works; and (3) because plaintiffs incorporated allegations as to the enforceability and validity of an express contract between the parties, with which the unjust enrichment claim is legally inconsistent."
The court noted that the unjust enrichment claim was made by plaintiffs under the idea that should their other arguments not work, they may be entitled to a claim of unjust enrichment. The court claimed that that meant they were misconceiving the idea of what the meant, writing, "In this case, plaintiffs do not appear to dispute the existence, validity, and enforceability of their Booking Contracts. That being the case, plaintiffs have no claim for unjust enrichment for failure to pay royalties, even if the Booking Contracts do not contain a contractual right to royalties. So long as those contracts are valid and enforceable, an unjust enrichment claim aimed at the same subject matter is not cognizable."
So, that claim was thrown out.
Interesting to note, however, that elsewhere in Judge Hall's ruling, she noted, "Plaintiffs represent that their unjust enrichment claim “fall outside the scope of copyright because the claim is not that WWE wrongfully distributed the videos; it is different, that WWE wrongfully retained monies not belonging to them by failing to pay WWE Network royalties to plaintiffs and withholding royalty payments owed longer than 90 days following the end of the fiscal quarter.” Ultimately, however, the court need not and does not decide whether this unjust enrichment claim is preempted, as it is subject to dismissal on other grounds." So, until other aspects of the case, meaning the royalty issue, are worked out, it is impossible for the court to dismiss this claim."
WHAT HAPPENS NOW?
The court is allowing 14 days for Bagwell and Levy to file a second amended lawsuit and if they do, WWE will then get 14 days to respond. The court warned it will not allow any extensions on those deadlines.
ADDITIONAL BACKGROUND AND NOTES
The lawsuit Bagwell and Levy lawsuit was designed to set up a class action lawsuit for performers in a similar situation (noting a sub-class for talents who signed specific WWE deals in the past when the language in those contracts did not specifically mention the WWE Network material) , noting that exempt from the class would be those who have signed a WWE Legends deal from January 2004 on as language in those deals specifically notes that the company will not pay them royalties for "Internet subscriptions or video on demand fees." The lawsuit also requests the court prevent WWE from placing PPV and non-PPV material on the WWE Network until the class are paid royalties and that the class be paid within 90 days of the end of a financial quarter.
In April 2016, well prior to this lawsuit being filed, during an interview with the Two Man Power Trip podcast, WWE's lead counsel Jerry McDevitt commented on why talents from wrestling promotions who's video libraries are now owned by WWE are not owed royalties, stating, "Let me use ECW as an example. ECW if you recall your history went into Chapter 7 bankruptcy. Whenever you go into a Chapter 7 bankruptcy what happens is your assets and your liabilities are marshalled. The bankruptcy trustee tries to sell the assets of the bankruptcy estate to generate some cash to pay off creditors who would be for example any ECW talent that are owed money from ECW and would share any money that is available which is usually not very much because when you are bankrupt you don’t get very much and when somebody goes bankrupt like ECW does it essentially wipes out all the claims of anybody that they would have against ECW for contract royalties or contract claims against ECW. The assets of the company are put up for sale free and clear of all liens and that is part of the whole bankruptcy sale. When you think about it nobody is going to buy assets that carry with it liabilities. So what you had there was this entire film library of ECW that would have been sitting somewhere in a cardboard box right now and not being displayed anywhere, and the WWE decided it would buy and pay money to buy the films and the copyrights that go with those films and obtain from the bankruptcy court a bill of sale giving the WWE in exchange for the money we paid for those the sole right, title and interest to the copyrights of those works. That is why the WWE has the legal right to display them on the Network free and clear of any claims, plain and simple."
PWInsider.com received the following statement from McDevitt shortly after the initial lawsuit was filed by Bagwell in 2016: "Since the first purported class action case was brought on behalf of Billy Jack Haynes almost two years ago, this pack of class action lawyers have filed by my count 14 different complaints or amended complaints. All of them have been full of patently false allegations, and none of them have gone anywhere. They haven't got a penny, and the judge is in the process of deciding whether to throw other ones out. Bagwell's lawsuit is much the same. It is based on clearly false facts, and would embarrass a first year law student because of the ignorance of basic contract law principles. Bagwell was never promised a penny by anybody for the use of WCW archival footage. Not by Turner and not by WWE, and he knows it. Like I did before with [Rene] Dupree's bad faith lawsuit, I will be demanding they withdraw this latest suit next week. If they don't, we will move to dismiss, ask for sanctions, and seek to recover counsel fees from Bagwell."
Notes:
*: While the company was known as WWF at the time, we have listed it as WWE to make it easier for readers to follow the story.
**: All mentions of WCW denote the wrestling promotion owned by Turner Broadcasting. While describing WWE's version of WCW, we have listed it as WWE-WCW to dileniate between the Turner version and the WWE owned version.
***: While Bagwell's 2001 deal with WWE was listed as under WCW, we have listed it as WWE above to make it easier for readers to follow the story. The lone exceptions is language from the lawsuit, which has not been edited by PWInsider.com.
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Post by The Ultimate Nullifier on Sept 26, 2017 12:57:42 GMT -6
www.pwinsider.com/article/112547/updates-on-the-bagwellraven-vs-wwe-lawsuit-regarding-wwe-network-a-potential-ripple-effect-of-the-case-and-more.html?p=1UPDATES ON THE BAGWELL/RAVEN VS. WWE LAWSUIT REGARDING WWE NETWORK, A POTENTIAL RIPPLE EFFECT OF THE CASE AND MORE By Mike Johnson on 2017-09-26 14:06:00 Some updates on the lawsuit Scott "Raven" Levy and Marcus "Buff" Bagwell in regard to their allegations that WWE owes them royalties from usage of material featuring their work in matches and segments from WCW and WWE on the WWE Network, allegedly breaching their contracts by failing to pay direct sales royalties as well as WWE allegedly not paying within a 90 day window following the end of each financial quarter. As previously reported on PWInsider.com, WWE has argued there is no direct sale involved in WWE Network subscriptions because there is no physical product being sold to a consumer, just that they are granted a license to watch material on the WWE Network as long as their subscription is active. Bagwell and Levy have argued against that stance. Levy specifically has argued that talent should be paid for the WWE Network under the same royalty rate that they would receive contractually, from PPV and video sales. Levy's attorneys have argued that his June 2000 contract with WWE provides a royalty from material featuring his work via a direct sale, with direct sale defined as "...including without limitation, at the arena, via mail order sales or directly on television, or via the Internet...." and that WWE has direct sales of their content via WWE Network subscriptions yet fails to pay royalties on those sales. Levy noted in the lawsuit that according to the language of his contract, WWE would pay royalties on "“video cassettes, videodiscs, CD ROM, or other technology, including technology not yet created.” and that the streaming technology of the Network falls under the "technology not yet created." Bagwell made similar claims about WWE failing to pay royalties on material on the WWE Network that features WCW and WWE content featuring his work, also alleging that by selling WCW content but not paying him his royalties, WWE breached an agreement both parties signed when he was released by WWE following a short tenure there in 2001. Levy is also arguing that once WWE purchased the WCW and ECW video libraries, those libraries should fall under the promised royalty rate that he was promised contractually from WWE for direct sale of WWE events and that when he was released by WWE in 2013, the agreement to release him noted WWE had completely bought Levy out of any claims against them or any money owed "other than the obligation to pay Levy the royalties due to him pursuant to, and as determined by, the Contract", which would be the aforementioned June 2000 contract. Bagwell is also alleging that WWE has failed to pay royalties within 90 days, was late in paying royalties and has not paid any royalties since February 2014 when the WWE Network launched. The non-payment of royalties is another breach of his contract, Bagwell alleges. The lawsuit also alleges that WWE breached its fiduciary duty to Levy and Bagwell because WWE was in a superior position when it came to knowledge of finances and money owed to the talents. The most recently amended version of the lawsuit carried over the allegation that Bagwell's WWE contract allows for him to have his own independent certified accountant audit WWE-WCW's books, citing, "for the purpose of verifying the accuracy thereof, during WCW’s normal business hours and upon reasonable notice. Such audit shall be conducted in a manner that will not unreasonably interfere with WCW’s normal business operations. Wrestler shall not audit WCW’s books and records more than twice during any calendar year and no such audit shall be conducted later than one (1) year after the last statement of royalties is given, delivered or sent to Wrestler. Each audit is limited to seven (7) days in duration. Statements of royalties may be changed from time to time to reflect year-end adjustments, to correct clerical errors and for similar purposes." According to the lawsuit, Bagwell attempted to do exactly that in June 2016 and was initially told an audit could be done in late July or early August 2016, only to later be informed by WWE's counsel, K&L Gates, that there would be no audit, as Bagwell's accountant, "asserted a pretextual and invalid audit request to attempt to stealthily obtain that information (WWE network royalty audit)" and that since Bagwell is not paid WWE Network royalties, "there is nothing to audit." Since WWE blocked Bagwell's attempts to audit the records as he was contractually allowed to do, he is now claiming that the company has forfeited any claim that Bagwell did not satisfy any of WWE's prerequisite actions contractually before he filed his lawsuit. The lawsuit also claims that WWE has violated the Connecticut Unfair Trade Practices Act "by failing to account for millions of dollars in owed WWE Network royalties and failed to pay royalties due within 90 days following the end of the quarter." The lawsuit alleges that by doing so, WWE was "immoral, oppressive, unscrupulous, and caused substantial injury" to Bagwell, Levy and other professional wrestlers who signed similar contracts. The lawsuit also alleges that WWE Network, Inc. a subsidiary of WWE, has licensed video material to other licensees without the knowledge of Levy and Bagwell and that doing so was a breach of contract when it came to their royalty payments. At a case conference on 8/30, it was noted that some of the aforementioned allegations would be withdrawn by Levy and Bagwell, but thus far, it's not clear if any actually have been, so we are including them in our reporting. Over the course of the summer, Levy and Bagwell changed attorneys, which slowed the progress of the case as the former attorneys, according to court filings, refused to release material that the plaintiffs would need for the case. Bagwell and Levy have claimed that they are filing as a class lawsuit on behalf of similar performers, alleging that the class is owed in the area of $5 million and have requested a jury trial. According to documents filed on 9/25, that class would include another 253 former WWE performers who's work may fit similar parameters. Bagwell and Levy have requested details on "the amount of money collected or received by WWE for video product royalty payments made and the methodology for the calculation of those royalty payments, and the amount of money actually paid to Performers with the applicable kind of booking contracts for video product royalties and the methodology for calculating those royalties." WWE, who have already provided over 4,600 pages of materials, stated yesterday that they would be willing to provide that material in relation to Bagwell and Levy but not for every performer who may be part of the potential class action, noting they are not Plaintiffs (yet) and that releasing that material was outside the scope of what the court had allowed thus far in the Discovery portion of the case. In their 9/25 filing, WWE stated they were willing to do that, but to have that information only limited to Bagwell and Levy, not any other members of a potential class lawsuit. The material they do release would be via confidential, "for your eyes only" releasing and presumably, not to be released publicly. Bagwell and Levy have requested that information in regard to another 253 performers who may fit the same parameters as the circumstances of their allegations, being that they are seeking to bring a class action lawsuit against WWE. They are claiming, according to the filing yesterday that the information would be "relevant to demonstrate the requisite commonalty and typicality of the class." A good portion of yesterday's filing dealt with WWE arguing why certain documentation and information was not necessary for the lawsuit, including a requested breakdown of the organization of the WWE Network when it came to executives and those who worked on the advertising and marketing of the Network. WWE noted that the amount of information being requested was not only cumbersome due to its amount but that much of what was being requested was outside the scope of what the court had approved as being within fair game of the discovery. Attorneys for Levy and Bagwell also requested that WWE release all contracts featuring "all versions of standardized or prototype contracts entered into between You and Performers where the definition of Video Products includes “other technology, including technology not yet created” language as set forth in Levy’s 2000 Booking Contract." WWE stated that they were released 12 contracts with similar wording as part of the case but would not go beyond that as it was beyond the scope that the court was allowing. WWE also argued that a request for contracts “made available or offered to any Performer” was overbroad and needless. WWE also argued that a request for records for every year the company provided royalties to performers, including the total money paid out was "overbroad, unduly burdensome and not limited to information or documentation that is relevant to any party’s claims or defenses and not proportional to the needs of the case" because that would mean WWE would have to deliver all of their recorded related to years 1996 to present. WWE is producing records related to how talents were paid royalties for video products. WWE also stated there were no contracts that related to the “payment of royalties” to WWE talents “for any revenue generated by the WWE Network” because WWE has never agreed to pay such royalties. So, the two sides are now going through the tedious nature of requesting information from the other to build their arguments. Given the nature of the case, it appears this is going to drag on for some time and there may already be a ripple effect from it on the WWE Network. PWInsider.com had confirmed with numerous sources that WCW Thunder was set to debut on the Network's VOD Vault section this month, but with just four days remaining, it has been nowhere to be seen. We are told that the episodes had been prepared to be added and are sitting there, waiting to go. Instead, World Class Championship Wrestling episodes have been uploaded and it would appear that they are in Thunder's place. It could be that WWE has put the brakes on utilizing content that would feature Bagwell and strengthen his claims to potential royalties should the case not go WWE's way. If that is the case, one would suspect that plans to begin adding episodes of WWE's Sunday Night Heat, which featured Raven over the course of that series' lifespan, may also be scuttled. One would then think any material from the GWF utilizing Bagwell (as the Handsome Stranger) or Levy (as Scotty the Body) would also be unavailable to be added. Currently, material from WWE and WCW TV and PPVs featuring each talent as well as ECW content featuring Levy as Raven are available on the WWE Network. Unless WWE wishes to start editing around talents (which would certainly ruin the entertainment value of watching the show from an episodic nature; How do you showcase the NWO when Buff Bagwell is on screen as part of the group, for example?), it may be that WWE has handicapped themselves, legally, from using that material, until this situation is resolved, for fear of having to pay out royalties for it, should the legal process not go in their direction, if and when this is all resolved. WWE had previous shied away from using Stampede Wrestling content after discovering that Bret Hart owned the rights to his matches from that library and that, although they own the physical library, they would need to come to terms with Hart to use the footage he is featured on. WWE responded by pulling several hours of Stampede that had been uploaded to the WWE Network and to date, has only utilized specific matches that did not feature Hart.
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Post by The Ultimate Nullifier on Oct 3, 2017 19:27:47 GMT -6
www.pwinsider.com/article/112678/bagwell-and-raven-withdraw-claims-in-lawsuit-against-wwe.html?p=1BAGWELL AND RAVEN WITHDRAW CLAIMS IN LAWSUIT AGAINST WWE By Mike Johnson on 2017-10-03 16:57:00 Some updates on the lawsuit Scott "Raven" Levy and Marcus "Buff" Bagwell in regard to their allegations that WWE owes them royalties from usage of material featuring their work in matches and segments from WCW and WWE on the WWE Network, allegedly breaching their contracts by failing to pay direct sales royalties as well as WWE allegedly not paying within a 90 day window following the end of each financial quarter. On 9/29 attorneys representing Bagwell and Levy filed a notice with court that the pair are withdrawing certain claims that they alleged in the most recent version of their lawsuit. After information was exchanged between the parties, Bagwell and Levy stated that they would not be pursuing claims as a class action on "behalf of individuals who are parties to the following contracts and are part of the following alleged subclasses in this matter: (1) Titan Sports, Inc. d/b/a World Wrestling Federation Booking Contract fromthe signing period of January 1, 1993 until December 31, 1993; and (2) WCW, Inc. Booking Contract from the signing period of March 24, 2001 until January 1, 2004." The only class Bagwell and Levy are pursuing going forward are individuals who are parties to a WWE Booking Contract from the signing period of January 1, 1999 to until January 1, 2004. The filing also stated that there would be no class claims on behalf of Bagwell. There is slated to be a conference call regarding the case on 10/6. For more details on the case, click here. www.pwinsider.com/article.php?id=112547UPDATES ON THE BAGWELL/RAVEN VS. WWE LAWSUIT REGARDING WWE NETWORK, A POTENTIAL RIPPLE EFFECT OF THE CASE AND MORE By Mike Johnson on 2017-09-26 14:06:00 Some updates on the lawsuit Scott "Raven" Levy and Marcus "Buff" Bagwell in regard to their allegations that WWE owes them royalties from usage of material featuring their work in matches and segments from WCW and WWE on the WWE Network, allegedly breaching their contracts by failing to pay direct sales royalties as well as WWE allegedly not paying within a 90 day window following the end of each financial quarter. As previously reported on PWInsider.com, WWE has argued there is no direct sale involved in WWE Network subscriptions because there is no physical product being sold to a consumer, just that they are granted a license to watch material on the WWE Network as long as their subscription is active. Bagwell and Levy have argued against that stance. Levy specifically has argued that talent should be paid for the WWE Network under the same royalty rate that they would receive contractually, from PPV and video sales. Levy's attorneys have argued that his June 2000 contract with WWE provides a royalty from material featuring his work via a direct sale, with direct sale defined as "...including without limitation, at the arena, via mail order sales or directly on television, or via the Internet...." and that WWE has direct sales of their content via WWE Network subscriptions yet fails to pay royalties on those sales. Levy noted in the lawsuit that according to the language of his contract, WWE would pay royalties on "“video cassettes, videodiscs, CD ROM, or other technology, including technology not yet created.” and that the streaming technology of the Network falls under the "technology not yet created." Bagwell made similar claims about WWE failing to pay royalties on material on the WWE Network that features WCW and WWE content featuring his work, also alleging that by selling WCW content but not paying him his royalties, WWE breached an agreement both parties signed when he was released by WWE following a short tenure there in 2001. Levy is also arguing that once WWE purchased the WCW and ECW video libraries, those libraries should fall under the promised royalty rate that he was promised contractually from WWE for direct sale of WWE events and that when he was released by WWE in 2013, the agreement to release him noted WWE had completely bought Levy out of any claims against them or any money owed "other than the obligation to pay Levy the royalties due to him pursuant to, and as determined by, the Contract", which would be the aforementioned June 2000 contract. Bagwell is also alleging that WWE has failed to pay royalties within 90 days, was late in paying royalties and has not paid any royalties since February 2014 when the WWE Network launched. The non-payment of royalties is another breach of his contract, Bagwell alleges. The lawsuit also alleges that WWE breached its fiduciary duty to Levy and Bagwell because WWE was in a superior position when it came to knowledge of finances and money owed to the talents. The most recently amended version of the lawsuit carried over the allegation that Bagwell's WWE contract allows for him to have his own independent certified accountant audit WWE-WCW's books, citing, "for the purpose of verifying the accuracy thereof, during WCW’s normal business hours and upon reasonable notice. Such audit shall be conducted in a manner that will not unreasonably interfere with WCW’s normal business operations. Wrestler shall not audit WCW’s books and records more than twice during any calendar year and no such audit shall be conducted later than one (1) year after the last statement of royalties is given, delivered or sent to Wrestler. Each audit is limited to seven (7) days in duration. Statements of royalties may be changed from time to time to reflect year-end adjustments, to correct clerical errors and for similar purposes." According to the lawsuit, Bagwell attempted to do exactly that in June 2016 and was initially told an audit could be done in late July or early August 2016, only to later be informed by WWE's counsel, K&L Gates, that there would be no audit, as Bagwell's accountant, "asserted a pretextual and invalid audit request to attempt to stealthily obtain that information (WWE network royalty audit)" and that since Bagwell is not paid WWE Network royalties, "there is nothing to audit." Since WWE blocked Bagwell's attempts to audit the records as he was contractually allowed to do, he is now claiming that the company has forfeited any claim that Bagwell did not satisfy any of WWE's prerequisite actions contractually before he filed his lawsuit. The lawsuit also claims that WWE has violated the Connecticut Unfair Trade Practices Act "by failing to account for millions of dollars in owed WWE Network royalties and failed to pay royalties due within 90 days following the end of the quarter." The lawsuit alleges that by doing so, WWE was "immoral, oppressive, unscrupulous, and caused substantial injury" to Bagwell, Levy and other professional wrestlers who signed similar contracts. The lawsuit also alleges that WWE Network, Inc. a subsidiary of WWE, has licensed video material to other licensees without the knowledge of Levy and Bagwell and that doing so was a breach of contract when it came to their royalty payments. At a case conference on 8/30, it was noted that some of the aforementioned allegations would be withdrawn by Levy and Bagwell, but thus far, it's not clear if any actually have been, so we are including them in our reporting. Over the course of the summer, Levy and Bagwell changed attorneys, which slowed the progress of the case as the former attorneys, according to court filings, refused to release material that the plaintiffs would need for the case. Bagwell and Levy have claimed that they are filing as a class lawsuit on behalf of similar performers, alleging that the class is owed in the area of $5 million and have requested a jury trial. According to documents filed on 9/25, that class would include another 253 former WWE performers who's work may fit similar parameters. Bagwell and Levy have requested details on "the amount of money collected or received by WWE for video product royalty payments made and the methodology for the calculation of those royalty payments, and the amount of money actually paid to Performers with the applicable kind of booking contracts for video product royalties and the methodology for calculating those royalties." WWE, who have already provided over 4,600 pages of materials, stated yesterday that they would be willing to provide that material in relation to Bagwell and Levy but not for every performer who may be part of the potential class action, noting they are not Plaintiffs (yet) and that releasing that material was outside the scope of what the court had allowed thus far in the Discovery portion of the case. In their 9/25 filing, WWE stated they were willing to do that, but to have that information only limited to Bagwell and Levy, not any other members of a potential class lawsuit. The material they do release would be via confidential, "for your eyes only" releasing and presumably, not to be released publicly. Bagwell and Levy have requested that information in regard to another 253 performers who may fit the same parameters as the circumstances of their allegations, being that they are seeking to bring a class action lawsuit against WWE. They are claiming, according to the filing yesterday that the information would be "relevant to demonstrate the requisite commonalty and typicality of the class." A good portion of yesterday's filing dealt with WWE arguing why certain documentation and information was not necessary for the lawsuit, including a requested breakdown of the organization of the WWE Network when it came to executives and those who worked on the advertising and marketing of the Network. WWE noted that the amount of information being requested was not only cumbersome due to its amount but that much of what was being requested was outside the scope of what the court had approved as being within fair game of the discovery. Attorneys for Levy and Bagwell also requested that WWE release all contracts featuring "all versions of standardized or prototype contracts entered into between You and Performers where the definition of Video Products includes “other technology, including technology not yet created” language as set forth in Levy’s 2000 Booking Contract." WWE stated that they were released 12 contracts with similar wording as part of the case but would not go beyond that as it was beyond the scope that the court was allowing. WWE also argued that a request for contracts “made available or offered to any Performer” was overbroad and needless. WWE also argued that a request for records for every year the company provided royalties to performers, including the total money paid out was "overbroad, unduly burdensome and not limited to information or documentation that is relevant to any party’s claims or defenses and not proportional to the needs of the case" because that would mean WWE would have to deliver all of their recorded related to years 1996 to present. WWE is producing records related to how talents were paid royalties for video products. WWE also stated there were no contracts that related to the “payment of royalties” to WWE talents “for any revenue generated by the WWE Network” because WWE has never agreed to pay such royalties. So, the two sides are now going through the tedious nature of requesting information from the other to build their arguments. Given the nature of the case, it appears this is going to drag on for some time and there may already be a ripple effect from it on the WWE Network. PWInsider.com had confirmed with numerous sources that WCW Thunder was set to debut on the Network's VOD Vault section this month, but with just four days remaining, it has been nowhere to be seen. We are told that the episodes had been prepared to be added and are sitting there, waiting to go. Instead, World Class Championship Wrestling episodes have been uploaded and it would appear that they are in Thunder's place. It could be that WWE has put the brakes on utilizing content that would feature Bagwell and strengthen his claims to potential royalties should the case not go WWE's way. If that is the case, one would suspect that plans to begin adding episodes of WWE's Sunday Night Heat, which featured Raven over the course of that series' lifespan, may also be scuttled. One would then think any material from the GWF utilizing Bagwell (as the Handsome Stranger) or Levy (as Scotty the Body) would also be unavailable to be added. Currently, material from WWE and WCW TV and PPVs featuring each talent as well as ECW content featuring Levy as Raven are available on the WWE Network. Unless WWE wishes to start editing around talents (which would certainly ruin the entertainment value of watching the show from an episodic nature; How do you showcase the NWO when Buff Bagwell is on screen as part of the group, for example?), it may be that WWE has handicapped themselves, legally, from using that material, until this situation is resolved, for fear of having to pay out royalties for it, should the legal process not go in their direction, if and when this is all resolved. WWE had previous shied away from using Stampede Wrestling content after discovering that Bret Hart owned the rights to his matches from that library and that, although they own the physical library, they would need to come to terms with Hart to use the footage he is featured on. WWE responded by pulling several hours of Stampede that had been uploaded to the WWE Network and to date, has only utilized specific matches that did not feature Hart.
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Post by The Ultimate Nullifier on Dec 8, 2017 13:35:52 GMT -6
www.pwinsider.com/article/114074/bagwellraven-lawsuit-against-wwe-dismissed-paving-way-for-halted-material-to-finally-be-added-to-wwe-network.html?p=1BAGWELL/RAVEN LAWSUIT AGAINST WWE DISMISSED, PAVING WAY FOR HALTED MATERIAL TO FINALLY BE ADDED TO WWE NETWORK By Mike Johnson on 2017-12-08 13:02:00 Yesterday, the United States District Court of Connecticut officially dismissed the lawsuit brought by Marcus Bagwell and Scott "Raven" Levy against World Wrestling Entertainment over allegations that WWE owes them royalties from usage of material featuring their work in matches and segments from WCW and WWE on the WWE Network. The lawsuit, filed in August 2016, was dismissed with prejudice, which means that neither party would be allowed to bring claims against WWE again. There is no word yet what led to the dismissal, but court filings indicated the two sides had been speaking about a potential settlement. Bagwell and Raven had alleged that WWE had breached their contracts of both Bagwell and Levy by failing to pay direct sales royalties to material that was included on the WWE Network's streaming service. WWE's contracts define material they provide royalties for as content that fall under direct sales, defined as "...including without limitation, at the arena, via mail order sales or directly on television, or via the Internet...." Levy and Raven argued that WWE Network subscriptions would fall under that description, while WWE argued that unlike a DVD, which they do provide royalties for, there is no sale of physical media with a WWE Network subscription, just a license that a subscriber rents, allowing them to view the content offered. Levy had argued that talent should be paid for the WWE Network under the same royalty rate that they would receive contractually, from PPV and video sales. He also argued that once WWE purchased the WCW and ECW video libraries, those libraries would now fall under the promised royalty rate that he was promised contractually from WWE for direct sale of WWE events and that when he was released by WWE in 2013, the agreement to release him noted WWE had completely bought Levy out of any claims against them or any money owed "other than the obligation to pay Levy the royalties due to him pursuant to, and as determined by, the Contract." Bagwell made similar claims in the lawsuit, alleging WWE failed to pay royalties on material on WCW and WWE content featuring Bagwell that was available on the WWE Network. Bagwell had also alleged that WWE, by selling WCW content, without paying him his royalties, had breached an agreement the parties signed when Bagwell released by WWE in 2001 after a short, uneventful run. Bagwell had also alleged that WWE had failed to pay him royalties within 90 days, was late in paying royalties and has not paid any royalties since February 2014 when the WWE Network launched. The non-payment of royalties was another alleged breach of Bagwell's contract, The lawsuit also alleged that WWE breached its fiduciary duty to Levy and Bagwell because WWE was in a superior position when it came to knowledge of finances and money owed to the talents. Bagwell had claimed that his WWE contract allowed him to have his own independent certified accountant audit WWE-WCW's books, citing, "for the purpose of verifying the accuracy thereof, during WCW’s normal business hours and upon reasonable notice. Such audit shall be conducted in a manner that will not unreasonably interfere with WCW’s normal business operations. Wrestler shall not audit WCW’s books and records more than twice during any calendar year and no such audit shall be conducted later than one (1) year after the last statement of royalties is given, delivered or sent to Wrestler. Each audit is limited to seven (7) days in duration. Statements of royalties may be changed from time to time to reflect year-end adjustments, to correct clerical errors and for similar purposes." Bagwell has alleged that he had attempted to do exactly that in June 2016 and was initially told an audit could be done in late July or early August 2016, only to later be informed by WWE's counsel, K&L Gates, that there would be no audit, as Bagwell's accountant, "asserted a pretextual and invalid audit request to attempt to stealthily obtain that information (WWE network royalty audit)" and that since Bagwell is not paid WWE Network royalties, "there is nothing to audit." Since WWE blocked Bagwell's attempts to audit the records as he was contractually allowed to do, he claimed that the company had forfeited any claim that Bagwell did not satisfy any of WWE's prerequisite actions contractually before he filed his lawsuit. After the lawsuit was filed and early attempts to have it dismiss failed on WWE's part, WWE sources indicated that plans to add WWE Sunday Night Heat and WCW Thunder were both stalled, even though the complete runs of each series were prepared and ready to be added to the WWE Network's Video on Demand component. Both Levy and Bagwell were featured on those series and adding new material could add to potential damages should the courts not rule in WWE's favor. We are told that WWE also looked into whether it was feasible to remove content featuring the two from the Network. We are told that the company took the issue so seriously, they put research into whether it was worth removing all signs of Levy and Bagwell from the Network's VOD component, despite the amount of manpower and money it would require. Yesterday's dismissal prevents the company from having to move forward with such moves and opens up the floodgates, so to speak, for that content to be added to the WWE Network in 2018. It also closes the door, for now at least, on the issue of whether talents should be due royalties for material featured on the WWE Network.
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Post by The Ultimate Nullifier on Dec 8, 2017 13:36:41 GMT -6
www.f4wonline.com/wwe-news/bagwell-raven-wwe-royalties-lawsuit-dropped-agreement-reached-247651BAGWELL & RAVEN WWE ROYALTIES LAWSUIT DROPPED AS AGREEMENT REACHED BY DAVE MELTZER | @davemeltzerwon | DEC 8, 2017 10:34 AM A lawsuit filed by Marcus "Buff" Bagwell and Scott "Raven" Levy against WWE attempting to open the door for wrestlers to get royalties for appearances on the WWE Network was dropped officially yesterday in an agreement between the lawyers for both sides. WWE had filed a lawsuit against Levy claiming he had made false statements about a prior lawsuit, where Levy and several other former wrestlers had sued to attempt to get employee status for wrestlers claiming they were not independent contractors. In that case, it was thrown out due to the statute of limitations from when the deals were in place to when the lawsuit was filed having expired. Levy, on a Chris Jericho podcast, had apparently said that Vince McMahon had paid off a judge. The agreement was made between lawyers that both lawsuits were to be dropped. However, in the settlement agreement, WWE retained the rights to refile the lawsuit against Levy if he were to ever sue WWE again on any contractual matters. After recent depositions by WWE of Bagwell and Levy, their lawyers opened up settlement talks regarding dropping of the case. Levy and Bagwell were represented by Klint Bruno and Matthew Peterson of Chicago and William H. Clendenen Jr. of New Haven. The WWE was represented by Jerry McDevitt of Pittsburgh, Jeffrey Mueller of Hartford, and Jonathan Tropp of Stamford.
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Post by The Ultimate Nullifier on Dec 8, 2017 18:38:48 GMT -6
www.pwinsider.com/article/114077/more-on-dismissal-of-ravenbagwell-wwe-lawsuit.html?p=1MORE ON DISMISSAL OF RAVEN/BAGWELL WWE LAWSUIT By Mike Johnson on 2017-12-08 18:46:00 As previously reported on PWInsider.com, the lawsuit that Marcus Bagwell and Scott "Raven" Levy brought against WWE regardong allegedly owed royalties related to the WWE Network was dismissed yesterday by the United States District Court of Connecticut. PWInsider.com has learned that there was no settlement as part of the dismissal of the lawsuit. We are told that Bagwell and Levy agreed to drop the lawsuit after they have been deposed by WWE attorneys and agreed to the stipulation that they could not bring a new lawsuit against the company. We are told that at no time did WWE attempt to settle the lawsuit.
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