2349


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
2353
 1                                                                                                                                                                                                                                                            
 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.
2354
 1                                                                                                                                                                                                                                                            
 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
2355
 1                                                                                                                                                                                                                                                            
 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.
2356
 1                                                                                                                                                                                                                                                            
 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
25       out.
2357
 1                                                                                                                                                                                                                                                            
 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'
2358
 1                                                                                                                                                                                                                                                            
 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.
2359
 1                                                                                                                                                                                                                                                            
 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
2360
 1                                                                                                                                                                                                                                                            
 2       have got three and a half months, let's see
 3       what you have from Acaries and let's have a
 4       deposition.
 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
2361
 1                                                                                                                                                                                                                                                            
 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
2362
 1                                                                                                                                                                                                                                                            
 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
2363
 1                                                                                                                                                                                                                                                            
 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
 8       raised.
 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
2364
 1                                                                                                                                                                                                                                                            
 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
13       document.
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
2365
 1                                                                                                                                                                                                                                                            
 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:
21  CROSS-EXAMINATION
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
2366
 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
12  agreement?
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
23  not?
24       A.    Yes.
25       Q.    So you are not contending that you had
2367
 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
20  fight.
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
2368
 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.