Promoter Lou DiBella has sued junior lightweight contender O’Shaquie Foster for breach of contract.
In an 11-page lawsuit filed by attorney John Wirt in United States federal court for the Southern District of New York—a copy of which has been obtained by BoxingScene.com—DiBella is asking a court to uphold the validity of his promotional contract and to prevent Foster from fighting for another promoter.
DiBella is seeking “in excess of” $500,000 in damages.
In the lawsuit DiBella accused Foster and his manager, Keith Mills, of trying to get out of a valid contract in which he invoked a “force majeure” clause due to the coronavirus pandemic shutting down the boxing industry for several months and making it impossible to put on any fights.
“This lawsuit is a direct result of the improper and misguided efforts of an attorney (Rodney Drinnon) for a boxer to strong arm the boxer’s promoter into releasing and foregoing its substantial investment in the boxer, after the promoter invested in excess of one hundred thousand dollars into the career of the boxer and deftly guided him to a No. 3 world rating,” the lawsuit said.
“As a result of the promoter’s efforts, the boxer is now on the cusp of finally getting a hard-fought and well-lobbied for world title shot, notwithstanding the COVID-19 pandemic, which has hit the boxing industry particularly hard, especially when considering that to date, a live professional boxing event has not taken place in the State of New York since March 2020.”
DiBella is based in New York, where most of his events are held. He was disappointed and surprised by the suit.
“I was blindsided and hurt by O’Shaquie’s attempts to get out of his contract with me, less than three months after the biggest win of his career and achieving a No. 3 (WBC) world rating,” DiBella told BoxingScene. “My company has worked tirelessly to get O’Shaquie to where he is and has continued to work hard on his behalf, even after receiving his lawyer’s letter in February. He is on the cusp of a major opportunity, but neither the fighter nor manager has spoken to me in months.
“We were essentially left with no choice but to file this lawsuit, not only to defend our rights but to hopefully get O’Shaquie back to the table so we can continue to advance his career.”
According to the lawsuit, Foster (18-2, 11 KOs), 27, of Houston, signed a three-year promotional agreement with DiBella Entertainment in April 2019. The agreement called for DiBella to offer to promote Foster “in a minimum” of three bouts per “contract year for certain specified minimum purses” with the agreement commencing on the date of the first bout.
That first bout was July 17, 2019, when Foster knocked out Jesus Bravo in the eighth round. The second bout took place Dec. 5, 2019, when Foster won a 10-round unanimous decision over Alberto Mercado.
Before the third bout could take place, the coronavirus pandemic hit “and boxing as a sport ceased as did all live sporting events,” according to the suit.
DiBella contends that the delay in Foster having the third fight of his contract year was allowable due to the pandemic, which shut down the sport for months. On March 27, 2020—weeks into the pandemic—the Hall of Fame-elected promoter notified all of his fighters in writing that he would be invoking the “force majeure” provision in their promotional contracts.
On July 14, the lawsuit said DiBella sent Foster a formal notice in writing that he was exercising the contract clause.
Foster’s promotional contract is one of the exhibits in the lawsuit and contains “force majeure” language that says that “if because of an act of God or nature or other abnormal weather/natural conditions, or civil commotion, act of public enemy, enactment, rule, order or act of any government or governmental instrumentality (whether federal, state, local or foreign), or other cause of similar or different nature not reasonably within Promoter's control, Promoter (is) materially hampered and its normal business operations or the normal business operation of the premises or event sites becomes commercially impractical, then, without limiting Promoter's rights, Promoter shall have the right by giving Fighter notice to suspend the term of this agreement for the duration of any such contingency.”
In other words, DiBella contends that with boxing shut down for several months last year and the ongoing pandemic still hampering normal operations in the boxing industry, his promotional contract with Foster was paused for six months.
Foster’s attorney does not believe a force majeure clause could be used in this situation.
“DiBella Entertainment, Inc., a multi-million dollar enterprise, is attempting to enforce a force majeure clause to extend the term of a personal services contract for an indeterminate amount of time against O’Shaquie Foster, a promising young fighter from Orange, Texas, in the United States District Court for the Southern District of New York – some 1,500 miles away from Foster’s home,” Drinnon told BoxingScene.com. “At issue is whether a promoter can use such a mechanism to indenture indefinitely the very fighter that he has an obligation to advance in the boxing pantheon. Moreover, DiBella Entertainment, Inc. claims that it can unilaterally determine how long it can extend Foster’s contractual obligations despite the fact that the Promotional Rights Agreement does not grant DiBella Entertainment, Inc. such determinative authority.
“Meanwhile, DiBella Entertainment, Inc. is satisfied to simply sit back and let this matter wind its way through the legal system, taking months or years off of Foster’s career, thereby costing him hundreds of thousands if not millions of dollars. DiBella Entertainment, Inc. has filed what amounts to a ‘test case’ regarding the extension of fighter promotional agreements throughout the combat sports arena, and, if unsuccessful, will free scores of fighters from the yokes of the promoters who sat on their hands claiming that COVID-19 excused their failure to do their respective jobs.”
The lawsuit points out that even in the midst of the pandemic, DiBella secured Foster the most significant fight of his career so far in the third bout of his contract year -- a career-best ninth-round knockout of veteran former world title challenger Miguel “Mickey” Roman on Nov. 19 in the main event of an NBC Sports Network-televised Ring City USA card.
The lawsuit said that “Foster and his manager, Keith Mills, kept in regular contact with principles from DBE and never once did they allege or complain DBE was somehow in breach of the PA (promotional agreement) for failing to promote Foster’s third bout by July 16, 2020."
Ultimately, Foster accepted and competed in the Nov. 19 bout, which DiBella contends was well within the time frame of the first contract year’s new end date on Jan. 16, 2021. The basis for that claim is that invoking the force majeure clause extended the end date of the first contract year “and therefore DBE fully satisfied all of its obligations to Foster under the PA” to promote a minimum of three fights per contract year.
Despite that, the lawsuit said that Foster’s attorney sent a letter to DBE counsel Alex Dombroff stating that Foster was no longer bound by the promotional contract. The basis for such claims stem from the insistence that DBE failed to promote three Foster bouts by July 16, 2020 and because “force majeure clauses, as a rule, cannot be used to extend or avoid performance relating to personal services contracts.”
According to the suit, Drinnon threatened DiBella.
“In his letter, Mr. Drinnon also improperly tried to strongarm DBE into ‘release(ing) Foster after receiving this written request by threatening that ‘I don’t think DBE would want to challenge this publically [sic] as a defeat would result in the wholesale departure of its remaining stable of fighters,’” the lawsuit said.
The suit went on the say, “Foster and his representatives have reaped the benefit of DBE’s hard work, expertise, and investment on Foster’s behalf which has resulted in Foster’s current world rankings and opportunity for a world title shot. Foster now wishes to sever ties with DBE based on the ridiculous argument that DBE is not permitted to suspend the term of the PA due to the shutdown of boxing that occurred worldwide as a result of the COVID-19 pandemic and notwithstanding that Foster failed to notify DBE of such alleged breach and to afford it an opportunity to cure as the PA requires.”
Dan Rafael was ESPN.com's senior boxing writer for fifteen years, and covered the sport for five years at USA Today. He was the 2013 BWAA Nat Fleischer Award winner for excellence in boxing journalism.