THE CHAIRMAN: Good morning, everyone.
3 We just had a telephone call from Judge
4 Schackman who has advised he is not feeling
5 well today and therefore will not be able to
6 be present at today's hearing, and I gather,
7 Mr. Olin, you would like to take a recess so
8 you can obtain video equipment and make a
9 videotape of the cross-examination?
10 MR. OLIN: Yes, sir.
11 THE CHAIRMAN: Yesterday, we were left
12 with the issue of an affidavit that Mr.
13 Burstein wanted to offer. Do you want to
14 make your offer and do your objection now?
15 MR. BURSTEIN: Sure.
16 MR. OLIN: That is fine.
17 MR. BURSTEIN: We have an affidavit
18 from Michel Acaries who was the head of AB
19 Stars. Mr. Acaries, we were having a
20 dispute about it, was going to come in to
21 testify. He has had triple bypass surgery.
22 He can't come. He really couldn't have
23 anybody from his office come. We have an
24 affidavit which for the most part is more
25 about sort of creating a foundation for
2 documents than it is about anything else,
3 because what Mr. Acaries' affidavit says is
4 that on October 2, which is before the
5 October 4 agreement, he submitted and AB
6 Stars requested the WBC send him the purse
7 bid documents on an urgent basis, and we
8 have that document which you can see the fax
9 header is October 2. We will have better
10 copies of it. We are getting the originals
11 today by FedEx.
12 Then he says that on October 6, after
13 the October 4 letter agreement was signed,
14 what happened was Dana Jamison called him in
15 France. He wasn't there and they spoke
16 because he was in Japan. What we have as
17 another exhibit is Dana Jamison's phone
18 record, and he confirms that the two numbers
19 that Dana Jamison was calling in France was
20 his mobile phone and his phone number, which
21 is consistent with what Ms. Jamison said.
22 And then the third document is the actual
23 purse bid that was sent in, and you can see
24 from the fax header it is essentially the
25 same time that the DKP submission went in.
2 There is some added factual material
3 in the affidavit which in essence is I spoke
4 to Ms. Jamison. I told her we were going to
5 go forward with the purse bid and that she
6 had tried to see if it could get done.
7 Whether you take the whole affidavit
8 or just use it for foundational purposes, I
9 would ask you to do so, and I think,
10 Michael, I don't think we have had one issue
11 in this case with respect to foundation.
12 I will represent that the fax copies
13 they have confirmed and in fact I got those
14 fax copies in the first instance from the
15 WBC themselves, Ms. Jamison's phone record,
16 and I think it should come in.
17 In the end I'm not quite sure what the
18 significance of it all is, because my
19 argument about the integration clause, in
20 fact, Mr. Hopkins testified that Mr. Hopkins
21 never signed that agreement.
22 Mr. Hopkins testified yesterday that
23 he never knew of any agreement for $750,000
24 and 50 percent of the gate, but, to the
25 extent -- I am wary of making the argument
2 because I know Mr. Olin is going to come
3 back and say because I am just so desperate
4 about the horrendous condition of my case,
5 but I am just trying to fill in any gap, and
6 the issue here is really what is the truth.
7 Even if you ignore -- I am happy to
8 offer this with the understanding that you
9 will ignore the substantive, if that is your
10 inclination, I think you can take it for
11 what it is worth, but at a minimum it should
12 be accepted, because the underlying
13 documents tell a story, that there can't be
14 any dispute about at least with respect to
15 the authenticity of the document.
16 MR. OLIN: There are a number of
17 problems I have with this. The list is as
18 long as my arm. First of all, it is no
19 surprise to anybody for months that AB Stars
20 was and Michel Acaries was a potential
21 witness in this case and, yet, despite what
22 we now have, he was never listed nor anybody
23 from his office nor any documents from his
24 file were ever listed or disclosed prior to
25 the start of this trial.
2 In fact, it was the defendant's
3 position prior to the start of this trial
4 and even at this trial, that, as you will
5 hear soon, Mr. King, Ms. Jamison had no idea
6 why the purse bid went forward except that
7 they blamed Arnold Joseph for not following
8 through on the October 4 agreement and that
9 it was Arnold Joseph who breached the
10 October 4 agreement by not canceling the
11 purse bid.
12 They then in the middle of trial when
13 presented with a letter that they obviously
14 had forgotten about went 180 degrees on that
15 and were caught with their hands in the
16 cookie jar and said, well, we only did the
17 purse bid which they insisted on because we
18 couldn't make a deal with Mr. Acaries, when
19 the prior testimony from Ms. Jamison was we
20 had a deal with Mr. Acaries, and in fact you
21 have in this record a contract with Mr.
22 Acaries for the services of Moorad Hakkar
23 for the August 17 bout which has a 120-day
24 delay provision in it which we will point
2 Mr. Acaries was not disclosed as a
3 potential witness until well after the first
4 six days of this trial had gone on. I can
5 imagine, if we were in a court of law and
6 somebody said, oh, by the way, I want to
7 change my case by adding a new witness with
8 new documents after six days of testimony
9 which include essentially my entire case
10 because I have put no witnesses on since we
11 have come back. My case was all essentially
12 done before we came back. I want to put in
13 a new witness. I'm not going to make any
14 discovery available. I'm not going to let
15 you have access to his files. I'm not going
16 to let you see any of these things. You are
17 just going to have to take it on faith that
18 what I am giving you is true and complete.
19 Now I have no doubt that Mr. Burstein
20 would not represent any of these documents
21 as being something other than what they are.
22 On the other hand, I don't know Mr. Acaries.
23 Frankly, I have reason to doubt Mr. King's
24 organization. Mr. King has put in writing
25 that he has reasons to doubt Mr. Acaries'
2 organization, based on Exhibit 140, which
3 your Honor already has saying that we don't
4 trust Mr. Acaries. Everything from him has
5 to be in writing. You saw that which was a
6 letter from Ms. Jamison.
7 We have had no opportunity to depose
8 these people. We have had no opportunity to
9 test these things. We have no idea whether
10 there are contrary documents out there.
11 It is completely unfair to us to
12 accept these at this point.
13 I might also note that Mr. Acaries is
14 affirming and trying to get into evidence
15 Ms. Jamison's phone records. I don't know
16 if you read this or not, but it is almost
17 laughable. Mr. Acaries is vouching for Ms.
18 Jamison's phone records.
19 MR. BURSTEIN: That is not what he is
20 saying. He is saying the numbers on there
21 are his telephone numbers.
22 MR. OLIN: He says next is a copy of
23 Ms. Jamison's phone bill.
24 MR. BURSTEIN: But are you going to
25 realistically doubt that that is Ms.
2 Jamison's phone bill?
3 MR. OLIN: I have no idea.
4 MR. BURSTEIN: Do you want me to call
5 Ms. Jamison up and say is that your phone
6 record? That is silly.
7 MR. OLIN: I have no idea, but that
8 was drafted here to deal with a problem of
9 their own making with their own witnesses to
10 try and make a comeback attempt on something
11 that they cannot possibly escape from, which
12 is misstatements under oath in deposition
13 and at trial to try and put another spin on
14 it to our prejudice when we can't even have
15 the opportunity to test it.
16 We object to it.
17 MR. BURSTEIN: May I respond?
18 THE CHAIRMAN: Sure.
19 MR. BURSTEIN: They have known -- as
20 Mr. Olin just said, they have known about
21 Mr. Acaries since last December. We told him
22 we were going to be calling Mr. Acaries. At
23 no time did they request any information
24 about Mr. Acaries, at no time just like with
25 Mr. Warren did they ever say, you know, we
2 have got three and a half months, let's see
3 what you have from Acaries and let's have a
5 I would have never objected to a
6 deposition. I was prepared to go to France
7 if they had asked, so to the extent they say
8 that they were left out in the cold, it is a
9 completely self-inflicted wound. There was
10 nothing that stopped Mr. Olin from asking
11 for discovery.
12 The fact is that the deposition
13 testimony is not altogether clear, because
14 Ms. Jamison, until I showed her that
15 contract, she doesn't really know or
16 remember what had happened, and, again,
17 whatever the truth is should come out.
18 You can weigh this, understanding that
19 he has not been subject to
20 cross-examination, but if I am representing
21 to you that -- I remember at one point I
22 said during this trial I had a question
23 about authenticity, and Michael said, do you
24 really want me to have to call somebody from
25 the WBC to come up here and authenticate a
2 record, and I said no.
3 That is the same thing because,
4 although I have had Mr. Acaries authenticate
5 those two bid documents, I am representing
6 that they came from the WBC, so we have
7 those two documents which reflect documents
8 sent by Mr. Acaries to the WBC.
9 With respect to the Dana Jamison phone
10 record, do I really need to call Ms. Jamison
11 up to say yes, this is my phone record, when
12 in fact the only reason I have Mr. Acaries
13 attesting to it is because Ms. Jamison, I
14 can't say I know this is the Acaries number,
15 but Mr. Acaries can say that.
16 Whatever inferences you want to draw
17 from that on an issue which I think is
18 ultimately an unimportant issue in the case
19 you can draw.
20 Whether or not Mr. King gave testimony
21 that he can be impeached with, because it is
22 not consistent with what actually happened,
23 he has every right to do it, but that is a
24 different question from in an arbitration,
25 where the rules of evidence don't strictly
2 apply and that is what the panels rule, that
3 you at least don't take the document.
4 THE CHAIRMAN: Anything further to add
5 on it?
6 MR. OLIN: No, except to say --
7 THE CHAIRMAN: You still disagree.
8 MR. OLIN: I disagree, but I'm not
9 arguing with Mr. Burstein except I can't
10 read them, so I have no idea what they say,
11 so I certainly object on the ground that I
12 can't read what it is that is coming in.
13 MR. BURSTEIN: I will have a much
14 better copy of that.
15 MR. OLIN: But it is not the document.
16 It is the whole procedure, new witnesses
17 after the fact, and I believe you first
18 disclosed Mr. Acaries on February 22.
19 MR. BURSTEIN: I don't think so, Mike.
20 I know it was earlier. It may not have been
21 in writing, but I told you I would have to
22 bring Acaries in, and again it is a rebuttal
23 witness. I wasn't bound to identify a
24 rebuttal witness.
25 They on their case raised this whole
2 issue of Don King being the person who
3 scuttled this purse bid. In that sense, I
4 didn't even have to disclose him in the
5 beginning. I am allowed -- I was only
6 required to disclose people in my
7 case-in-chief. This is a defense they
9 MR. OLIN: You don't get a rebuttal
10 case on the case-in-chief. You just get a
11 defense case. You don't have rebuttal. My
12 claim. Your defense. My rebuttal.
13 THE CHAIRMAN: All right. The
14 governing rule is Rule 32A of the AAA
15 commercial rules, which provides that the
16 arbitrator may receive and consider the
17 evidence of witnesses by declaration or
18 affidavit but shall give it only such weight
19 as the arbitrator deems it entitled to,
20 after consideration of any objection made to
21 its admission.
22 So I am going to accept the affidavit
23 in the sense of making it a part of the
24 record here. Obviously, Judge Schackman is
25 not here and hasn't had a chance to consider
2 your argument, and I will confer with him
3 before deciding what, if anything, to do
4 with this affidavit, and it may well be that
5 it provides no useful additional information
6 to us or it may be that it provides some,
7 and we may decide to
8 receive some, but not all of it, so we will
9 leave it there.
10 MR. BURSTEIN: Rather than split it
11 now, let me get the original coming in since
12 you really can't read the underlying
14 THE CHAIRMAN: That is fine.
15 MR. BURSTEIN: I guess we will wait.
16 MR. OLIN: The videographer will be
17 here about 10, 10:30.
18 THE CHAIRMAN: I will be here.
19 (Recess taken).
20 THE VIDEOGRAPHER: We are now going on
21 the record. The time is 10:43 a.m. on April
22 6, 2005. This is the videotaped testimony
23 of Don King, volume one in the matter of
24 Bernard Hopkins, Jr. Versus Don King, et al.
25 THE CHAIRMAN: We are ready to resume
2 with the commencement of cross-examination
3 of Mr. King.
4 MR. OLIN: Thank you, Mr. Carter. Two
5 things, I want to be clear that my
6 examination of Mr. King is my
7 cross-examination of his testimony from
8 yesterday, my examination of him in our
9 defense of the counterclaim, and my
10 examination of him in rebuttal of Mr.
11 Burstein's defense of our claim, so there
12 are three purposes for which I am calling
13 him at this time, and I intend to cover all
14 three of those subject matters rather than
15 put him on, let him sit, put him back on,
16 let him sit and then put him back on again.
17 THE CHAIRMAN: Very well.
18 D O N K I N G,
19 having been previously sworn, was examined
20 and continued to testify further as follows:
22 BY MR. OLIN:
23 Q. Mr. King, I am quite certain that Mr.
24 Burstein has told you this, but I am going to ask
25 you again to please keep in mind that if you
1 D. King-Cross
2 answer my questions and limit your responses to
3 the answers to my questions, it will make our day
4 a little shorter. Okay?
5 A. Thank you, Mr. Olin.
6 Q. I appreciate your attempt to do so.
7 A. Thank you.
8 Q. I want to talk to you first about the
9 subject of Mr. Hopkins' mandatories and your
10 contract. How many mandatories did Mr. Hopkins
11 fight while he was under your promotional
13 A. Three, I believe.
14 Q. Correct. Daniels was a mandatory?
15 A. Yes.
16 Q. Hakkar was a mandatory?
17 A. Yes.
18 Q. And Joppy was a mandatory?
19 A. Yes.
20 Q. All three of those bouts counted as
21 part of the six bouts that you were required to
22 put on under your promotional agreement, did they
24 A. Yes.
25 Q. So you are not contending that you had
1 D. King-Cross
2 to give him six bouts that were not mandatories,
3 are you?
4 A. No.
5 Q. In fact, even though the Daniels bout
6 was a mandatory and even though you agreed to pay
7 him $2.2 million plus the Bentley for
8 participating in that bout, there was a purse bid
9 for that bout?
10 A. Yes.
11 Q. And that purse bid was held for the
12 purpose of establishing not what you were going
13 to pay Mr. Hopkins, but what you were going to
14 pay Mr. Daniels?
15 A. The purse bid was held to establish
16 what the marketplace for the fight would be, and
17 that is what it did. The fight was $500,000.
18 Nobody bid on the fight. So it wasn't worth much
19 to anyone, and that establishes the price for the
21 Q. The reason that you went forward with
22 a purse bid was because you had no agreement with
23 Mr. Daniels, correct?
24 A. If you don't have an agreement with
25 either one, that is when a purse bid comes into
1 D. King-Cross
2 play. When you don't have -- if you don't have
3 both agreements, you don't have an agreement.
4 Q. My question to you, though, is the
5 purse bid was held in early October of 2002, was
6 it not?
7 A. I don't recall.
8 Q. I'm sorry. It couldn't have been
9 October -- October 2001, right?
10 A. If that is what you say. I don't
11 know, because you didn't know, and you can get
12 the record.
13 Q. Okay. Take a look if you would at
14 Exhibit 14. Does that refresh your recollection
15 that you did a purse bid for the Daniels bout on
16 October 6, 2001?
17 MR. BURSTEIN: I have an objection to
18 this, because you should ask him -- the
19 document is itself inconsistent.
20 THE CHAIRMAN: I think we established
21 in prior testimony that the proper date was
22 November 7.
23 MR. BURSTEIN: That's right.
24 MR. OLIN: Okay.