i am apprised by the clerk that everybody is here on all the argued cases so i'm going to dispense with reading the calendar and thank you for your timely presence but let me before we begin also thank judge berman judge berman is sitting with us from the southern district and we are very grateful for the help of our district court judges in dealing with our busy calendar so thank you and i think we are now ready to begin the st cases wylder of the world  after his last test we thought he was going to get caught and before the fight so at that point in time the w b c there's no there's no legitimate spew here it called off the fight and it said repeatedly that the literally no admissable evidence to support that claim and they'd have to determine that the w b c live repeatedly about the reasons why it called off that fight the fight what's really important here is the fight was governed by a contract drafted by the w b c but between private individuals and the w b c while it is a private organization it specifically included a broad mandatory form selection clause in exclusive for the southern district of new york so the remedies that hasn't really been raised in this case i'm raising it well the w b c his if you're raising exhausted remedies there are subs going to citizens by the w b c that are in the record where they specifically said it's going to allow the get a fair shake with a jury trial there's a lot of issues regarding the fact that mr rubin ski at all the guard he is paid a lot of money for w b c events and we felt the w b c included a provision that gave us a mandatory arbitration does seem to delegate to b c the authority to make determinations regarding things like postponement and also the what how anti doping problem should be investigated and and what should flow from from those allegations well and i think you know i was referring to also generally the case law that allows there to be substantial discretion to private organizations what happened here which is crucial is in the record eighty fi and fifty six is an october th two thousand and sixteen decision from the w b c were specifically ruled that for the void in some doubt the w b c here by states that the w b c ruling was not intended to convey and should not be trial which the judge directed the trial go forward and specifically cited the october th decision in directing a one issue trial so the district court said we're going to go because the w b c has said that we're open we're going to we're go decision there's no heaven is the appeal that decision we should have been allowed to rely on the decision to go forward for this trial not waste the jury's time it would also start to have a situation if the w b c wants to have it both ways so if you have a forum selection clause we should be allowed to litigate in the southern district should have a situation where they were they just become an appellate court to the jury and notify the jury spent five days on trial in this matter generally speaking you don't let this is not a situation where we st went the w b c didn't like the decision and then went to the courts that had that's in the n f l k case that's in the crouch case all of those cases the charles o finley case they specifically  their rights to go to the court that didn't happen here there's a contract drafted by the b c the says we can come to this court then they pull a bait and switch after the trial that's why go back to my original question would you use the expression having  generally in their rules it's pacifically but claims brought against them that's the mandatory hybrid this is this is a this was a bad agreement between private parties they said if you private parties have a dispute about this agreement you can come to the southern you have to go to the southern district of new york and we did that and to to do that to go to trial and to rely upon a decision saying we're going to let the jury decide this and then when we have a decision it literally says when we issue this decision we're going to get paid two hundred and rejected they make the same arguments that they did in the post trial to the w b c and so far as we can tell tell that it was ex parte we had no opportunity to know what they're doing to the w b c what they're saying but i understand that you have a lot of concerns about what motivated the w a couple of days maybe it still seems that the about agreement and the rules including the rules that say an athlete should not ingest miltonian but this is not as for been substances but this is not strict liability regime and that the b b c has and had to take into account all kinds of circumstances the b b c is seen to be acting within its rules and regulations which govern the whole relationship and that seems to me to break power and discretion vested in the world boxing council that there was nothing left to be breached if i say that ron and i think well i think that we respectfully would disagree with your honor is there's a provision in the bag and that's very material and it was the postponement that caused a lot of these damages the subsequent course of events to the provisions that botha and paragraph seven don't bear on that search surely the w b c had the authority to postpone based on the sequence of testing results that it received right the w b c could have postponed the bout and it could have ordered another fight it never did that it did postpone but it never ordered another fight and what it didn't h undertakers and initially the what they said was we're going to investigation and they said but whatever our investigation does we're not going to disturb the jury's verdict then in march after the jury's verdict and after we test positive for us during another suspended him indefinitely once you get suspended he can't have a title fight he has is a completely self inflicted wound by privette can certainly if the w b c performed an immediate investigation and said go to russia right now fight they well they would have done that we'll never know because that didn't happen what the w b c did was perform an investigation say that because mr bechan doped the anti wilder can have an interim fight then mr wilder fights that fighting i suspended he wasn't even put in the rankings until january twenty it as of january th he wasn't even a rank fighter so the cause of events and the district court judge was very clear the proximate cause of the fight not happening was mr issue in this case the only issue in this case is whether or not he took mel doughy him when it was banned that's why we had the trial that's what the w b c said let the jury decide and then after really don't like the decision because it isn't favorable to their benefactor oligarch they do reverse themselves and get paid two hundred and fifty thousand dollars at a minimum we should get discovery that i have exceeded my time  those rules applied to them because both parties during the course of this dispute invoked their article five rights wylder invoked article five rights in august of two thousand and sixteen objected to the w b wait and see what happens in the district court and then things will go on from there but the idea that wilder either was unaware of or didn't think that those that that article five provision on the six weeks following this announcement of the of the questionable test the weekend of may the th the w b c decided that they were going to investigate this situation and they said in their internal documents and in their external documents we're imposing no penalty on that can while his response to that was very clear he rejected the w b c's position he declared breach in writing he announced breach in the newspapers he terminated performance and by june th three weeks after performance was do originally june th he commenced a lawsuit no parties allowed to do that a part is allowed to declare a contract terminated treated as a breach and bring a lawsuit and if it turns out they're correct then they can seek damages if it turns out they're incorrect your adversary's a very persuasive argument that the may twenty one date was  material term of the of the contract he travelled the sweltering travel to england was busy getting ready with the staff and crew and where a physical bout is concerned it seems to me very plausible that  maybe one or two day suspension you know would be tolerated but within a week something much less than the months and you know there was no final decision until november why that seems  you know a reasonable response to your argument that this was repudiation why is that wrong so the for two reasons your are for us all the contract expressly vested the w b c with discretion to control the schedule exercise that discretion in good faith the part of the contract are bound by that i mean no one has really pound by anything about the date or about anything because the w b c had discretion to postpone it indefinitely they didn't  postpone it indefinitely that they had to exercise their discretion in good faith and consistent with applicable law for allocation was still clear to the days was that the time that the individual had to be produced that's t but the other thing is that postponement of boxing matches is although not common not unheard of postponements happen all the time for injuries or for for other reasons and the record is full of admissions from wilder side and the quite frankly that the pit reporter opinions even in this court talk about postponements of boxing matches and so buss potence that are caused well i think that the i think that the the ingestion of mel dhoni him look the time of ingestion out on him was hotly contested a trial jury found based on expert evidence that likely occurred by preponderance right in that window well it did and you know i want to stay in our briefs i don't i'm happy to answer questions about what happened the trial i think there were a number of errors i think there were a number of things that happened that were quite unfair but that can i think the fact that the jury asked for not a single document and came back after thirty minutes and found a russian athlete accused of doping it i  and i was very clear that if you were going to try the case you had to at least narrow it but i asked for i asked for repeatedly i asked for germans and then and to do in your complete discovery discovery discovery was never completed we got documents that were used to trial against us that we never had the opportunity to ask a single question about we got documents two weeks before trial we got documents three weeks before trial we asked for a deposition the person who produced the documents who testified as combined fact witness an expert witness and transmitted extensive hearsay to the jury on very unfairly you didn't argue did you argue  that holding a trial would be no consequence because the discretion in this contract went to the w b c as to the duping i did i said the judge currency i think that the jury verdict will be advisory and you shouldn't do that  and judge gorenstein rejected that so off we went now when you think about what we see in the new york cases is that time is of the essence only in limited contracts for example an option contract you have to exercise the option within a certain period timer expires worthless other kinds of contracts time is not of the essence and if and if there is a reasonable post movement that's not a breach and so the question is whether whether this is the kind of contract in which the date was was immovable and and both potentially six months seven months and to be ready in what circumstance well as it turned out i mean i don't know the answer to what's the outside time of year are it's a fair question and of course that would be a judgment call but in the actual event i mean and i will say that mr de bella who is a served as an expert in another case in california and he testified as an expert witness in that case that i six month seventy but that wasn't the governing standard at the time that the testing was done is that correct did the standards change between april and the issuance that you just referred to w not four hundred and ninety six false positives and two thousand and sixteen and they knew within a month or two that they had a problem they issued initial guidance on april th the day the contract was signed  sixteen they announced we have a problem we realize that there are a lot of false positives nobody's getting disqualified till we figure this out and we're working as fast as we can and we will provide further guidance but in the meantime you don't have to disqualify somebody if they're below a one thousand and that that was in april of change even if we were if we were to accept that as the governing center's does that still explain the variation of the two negatives in april one positive and then another negative in may that was apparently based on diluted samples so this so the science of it appears from the scientific record that all of the vet kins urine samples had some traces of mel donia but you u c l a had a problem with the st three tests and so rather than say he's negative or he's positive they issued yet the u c l a final reports the authoritative u c l a reports didn't say that and and and his basis was documents that he produced a week before trial and i never got to question him on  and i believe i believe that that had we had the opportunity to question a fact witness a percipient witness which butch admit it minute he was not that percipient witness would have said we couldn't decide whether mail don't eem was in his urine or not it is urine from those earlier tests and so we didn't we simply didn't report we remain silent which not qualified to  problems with dr butcher qualifications i was overruled on that and i didn't appeal that issue but but dr butch had a limited experience reading mass spectrometry and most important he was not a percipient witness he was not a perception witness and so he's he's testifying as if he was a fact witness when in reality he wasn't and the jury that that is a recipe for confusion and this court has warned against it in effect this court has reversed because of that toxic mix but the reality is that all of this is superceded by the discretion problem so so i think that was legal larry your honor and the reason i think it was legal error is because the district court suicide manteca said that prevent can had not proved what the w b c would have done that was the phrasing of this record so that that in a position of uncertainty on the non repudiated party it was a legal decision that judge bornstein made and it is contrary to the holding of judge wind feld in king world against financial news in king world judge wine felt sad when there is uncertainty caused by a two possible ways to show that the wilders repudiation his terminations determination to term treat the contract was terminated sued for breach caused damage to the vet care the  the w b c itself said in its august ruling the w b c said we've cleared the vacuum and he's now going to box the next highest available contender had wilder been available which he was not available stepping into the ring he had a fix he had a guaranteed minimum simply for stepping into the ring and then if he won which there was evidence that he was a serious contender if he won he would gotten a bonus and then world of boxing had television rights internet rights and of course the gate so they intended to make money by staging the bow when the  testimony to the w b c was that it was it contaminated it wasn't like i was confused also about the length of the suspension when was the suspension imposed by the w b c and how long did that last that's appeal i think quite frankly they're waiting for the district judge to rule on the motion for a new trial and shortly after the motion for a new trial they came out and said well now a stand jury verdict we don't agree with we don't agree with that and  they then dissolve the suspension put him back on thank you very much thank you you are met may i have one minute for rebuttal on the cross appeal yes ok thank you counsel now we've got a big mess right you've got a unusual jury verdict but only on a single issue got a pending defamation suit going to him for decisions by the world boxing him during the time we get there so i wouldn't say it's a lawyer i don't know the escrow agreement we actually argued to the district judge that the escrow agreement had was ambiguous because it it gave either party the absolute right to direct that the money be held in escrow but then it separately said that if the fight happens you get the money back or doesn't have a you know it's oh so it was oddly worded agreement but there's just a court judge held we had an unf right to direct the money be held in escrow pending a litigation that under their reading there's no conceivable reason the litigation could ever happen in the just a court judge also held that the only reason for the escrow agreement was to hold mr wilders per se because it's a russian fight with a russian promoter i will agree it's a mess i think these way to clear up the mess to go back to the jury verdict and let that be steady and not have the w b c stand in appellate role to our jury if i could just quickly to deal with some of the issues raised by and said if you don't release that money from the escrow account i'm going to sue you for two dollars and a half one million dollars a liquidated damages so while he's saying that mr wilder is suspended in the animation and can't do anything until the w b c decides what's happening he's also saying this about agreement which said you get your purse held in escrow that condition doesn't apply give me back my money so the idea that we sued precipitously when he was threatening to sue for liquidated damages into a net one million dollars i think is not very well taken also as your honor was pointing out about the materiality their own expert it's eight thousand nine hundred and seventy paragraph eight their own expert says it's a material term the data the fight so the idea that it's not a material term i think is not also taking the causation question judge gorenstein adopted their view on causation they argued to the district court you had to show causation that now he comes to this court and says oh that was a clear error of law when the district court judge adopted his own formulation and in fact this court has clearly held that you still have to show causation even if there is it is a jury repudiation which there couldn't have been here because the da proximate cause requirements for anticipatory repudiation he still has to prove that the this this issue about him not having a fair opportunity with these documents i was involved in the discovery in this case we asked for them to release the vile numbers for the negative tests so we could get more information they refused they forced me to make a motion to compel that information that's that's why both the district court judge gorenstein and judge carter found that the responsibility for any delay was on them and this is arnold and porter they have hundreds of lawyers we are we have four turris we weren't complaining about going to trial we could get ready for trial they could clearly get ready for trial it isn't entirely a self inflicted   is this this issue about mr de bellas testimony in another case is really unfounded one he said that it wasn't ok to have a german under the facts of that case and two it was an m m a case it wasn't a professional boxing case let alone a world heavyweight championship were so much goes into promoting the fight for that specific day which is why their own expert agrees it and the notion that the double b c i bought this argument that austrian was just a contamination and it was somehow innocent it's still find him two hundred and fifty thousand dollars that's an astronomical fine for the w b c to