Case 1:16-cv-04870-ALC Document 22 Filed 08/01/16 Page 1 of 3

Kent A. Yalowitz
Kent.Yalowitz@aporter.com
+1 212.715.1113
+1 212.715.1399 Fax
399 Park Avenue
New York, NY 10022-4690

August 1, 2016
VIA ECF
The Honorable Andrew L. Carter, Jr.
United States District Judge
United States District Court
Southern District of New York
40 Foley Square, Room 435
New York, NY 10007
Re:

World of Boxing LLC et al. v. Wilder et al., No. 16-cv-04870 (ALC)

Related Case: 1:16-cv-04423 (ALC)

Dear Judge Carter:

This firm represents Plaintiffs World of Boxing LLC, Alexander Povetkin and Andrey
Ryabinskiy (World of Boxing or Plaintiffs) in the above-referenced action. The case arises
out of a boxing match that had been scheduled for May 21, 2016. The Complaint alleges that
Plaintiff Povetkin tested positive for a non-disqualifying trace amount of the drug Meldonium,
and that Defendants seized on the test as a pretext to repudiate their contractual obligations and
engaged in a public smear campaign against Plaintiffs.
On July 25, 2016, defendants filed a motion to dismiss. The motion was filed in violation
of Rule 2.A. of Your Honors Individual Practices, which requires a three-page letter and a premotion conference before making a motion to dismiss. In addition, the Defendants motion to
dismiss was filed without a return date.
Given the substantive flaws in the motion, Plaintiffs respectfully request that the Court
deny the motion to dismiss without setting a date for responsive briefing.
First, Defendants submit affidavits and a transcript of a meeting in an effort to dispute
what they call the key allegation in the complaint that they repudiated their contractual
obligations by cancelling their trip to Moscow, where defendant Wilder was to participate in the
boxing match. In their motion to dismiss, Defendants quibble with the Complaint, submitting
affidavits that focus on the timing of their actual return to the U.S. instead of the timing of their
repudiation of their contractual obligations. The Complaint alleges that defendants were
required to travel to Moscow, but instead cancelled their flights and left the World Boxing

Case 1:16-cv-04870-ALC Document 22 Filed 08/01/16 Page 2 of 3

Hon. Andrew L. Carter, Jr.
August 1, 2016
Page 2
Council (WBC) with no choice but to postpone the contest. Complaint 62.1 While
Defendants assert that they did not return to the United States until a day later, they do not
contest the allegation that they announced their refusal to fly to Moscow in violation of their
contractual obligations (and before the WBCs announcement).
Second, Defendants claim that their defamatory statements to the press accusing Povetkin
of illegal drug use were all pure opinion. To begin, there is no federal constitutional privilege
for opinion. Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990).2 Moreover, Defendants
statements were demonstrably false and therefore do not fall into the opinion category anyway.
Defendants claimed that Povetkin:

made a decision to use a banned substance, use[d] a banned substance,

was taking something;

cheat[ed], and went to the depths of cheating;

tr[ied] to cover it up and got caught.

Wilder also said: weve got the evidence to prove it. Some guys like to fight on even
playing grounds and some guys like to cheat. Even after this case was filed, defendants lawyer
told Reuters that Povetkin would be better off to just stop doping, and fight clean.3
Defendants statementswhich directly or indirectly claim that Povetkin was doping
and cheating by taking Meldonium after it became a banned substancewere false.
Povetkin did not take Meldonium after it was banned by the World Anti-Doping Association
(WADA) effective January 1, 2015. Complaint 59.

The allegation is based on the following news report from ESPN:

Wilder and his team have been in Sheffield, England, for the past
two weeks training and adjusting to several hours of time
difference. They were scheduled to fly to Moscow on Sunday
afternoon but did not board their flight and were making plans to
return to the United States despite having not heard from the WBC
on the matter, a member of Wilder's team told ESPN.com.
Hours after Wilder and his team skipped their flight, the WBC,
having little choice with the titleholder preparing to return home,
announced the fight was off and called it a postponement.

While New York law provides such protections, it is not at all clear at this early stage that such
law applies, as it is the plaintiffs domicile (Russia) that will usually have the most significant
interest in the case. Celle v. Fillipino Reporter Enterprises Inc., 209 F.3d 163, 175 (2d Cir.
2000).
3
Jonathan Stempel, Boxing champ Wilder countersued over canceled Povetkin bout, Reuters,
June 23, 2016 (available at: http://www.reuters.com/article/us-boxing-lawsuit-dopingidUSKCN0Z928G).

Case 1:16-cv-04870-ALC Document 22 Filed 08/01/16 Page 3 of 3

Hon. Andrew L. Carter, Jr.
August 1, 2016
Page 3
Instead, Povetkin took Meldonium therapeutically in 2015, before the drug was banned.
Id. As the Complaint sets forth, WADA has announced that Meldonium is excreted from the
body very slowly, so that trace amounts can show up in the body long after ingestion. Complaint
43-44. More recently, WADA decreed that levels below 1.0 micrograms per milliliter are not
disqualifying in tests conducted before September 30, 2016. Povetkins level was 0.07
micrograms, which is far, far below the 1.0 microgram cutoff set by WADA. Complaint 57.
Saying an athlete is doping or using a banned substance is an assertion of fact.
Similarly, calling an athlete a cheater and a liar is actionable and is not opinion. See, e.g.,
McNamee v. Clemens, 762 F. Supp. 2d 584, 601 (E.D.N.Y. 2011) (Roger Clemens accusations
that his former trainer was a liar when accusing Clemens of steroid use cross the line from
general denial to specific accusations reasonably susceptible of a defamatory meaning);
Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 481 (1995) (statement that attorney
presented his client with an affidavit containing facts that were not true was not protected as
opinion); Curry v. Roman, 217 A.D.2d 314, 314-15 (4th Dept. 1995) (statements that party was
crooks, liars, thieves, and swindlers were actionable). As the Supreme Court has
explained,
Even if the speaker states the facts upon which he bases his
opinion, if those facts are either incorrect or incomplete, or if his
assessment of them is erroneous, the statement may still imply a
false assertion of fact. Simply couching such statements in terms
of opinion does not dispel these implications; and the statement,
In my opinion Jones is a liar, can cause as much damage to
reputation as the statement, Jones is a liar.
Milkovich v. Lorain Journal Co., 497 U.S. at 18-19.
Finally, Defendants urge the Court to require Plaintiffs to plead their claims as
counterclaims in an action filed a few days earlier. This Court has broad discretion to
consolidate the actions under Fed. R. Civ. P. 42(a), which would avoid unnecessary motion
practice and third-party pleading. See 9A Wright & Millers Fed. Prac. & Proc. Civ. 2383 (3d
ed.).
Plaintiffs therefore respectfully request that the Court deny Defendants motion to
dismiss without further briefing.
Respectfully submitted,
cc:

ECF Counsel