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World of Boxing LLC v. Don King - 56 F. Supp. 3d 507 (S.D.N.Y. 2014)


In general, contract liability is strict liability. Nevertheless, failure to perform can be excused if "destruction of . . . the means of performance makes performance objectively impossible."


Defendant Don King and plaintiff Word of Boxing LLC (WOB) entered into an Agreement In Principle (Agreement), in which King promised to produce Guillermo Jones (Jones) for a bout against Denis Lebedev (Lebedev). The day the bout was supposed to take place, Jones tested positive for furosemide, an illicit, performance-enhancing diuretic. The positive drug test precluded Jones from competing, and the bout was called off. WOB filed a suit, which alleged that King, by failing to produce a clean fighter, breached the Agreement.


Was defendant liable for breach of contract?




King protests that this interpretation of the Agreement yields "unreasonable and illogical" results. While these arguments might have force, they are addressed to the wrong issue. King could be right: under the circumstances, it is possible that his contractual obligations were too onerous to be enforceable. But that question goes to whether King's failure to perform may be excused, not to whether King in fact failed to perform. As to the latter, Jones's disqualification plainly put King in breach. New York law is very clear, however, that an impossibility defense is only available if the frustration of performance was "produced by an unanticipated event that could not have been foreseen or guarded against in the contract." In this case, two key facts compel the conclusion that Jones's ingestion of furosemide was not "unanticipated" — i.e., that King should have foreseen the possibility of Jones testing positive and guarded against it in the contract. First, Jones had a history of doping. Second, the Agreement provided for mandatory pre-bout drug testing, as required by the 2013 WBA Resolution.

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