It all started in the midst of the match between Matt Berkey and Nick Airball.
"A lot of people don't seem to understand why I don't like Berkey," Polk wrote. “Berkey lied about my business on his podcast in attempt to cause damage to the cardroom, employees, and the Texas poker market. I will defend my people."
“You yourself have been attacking people for years,” Charlie Carrel entered into the skirmish, "Lying about their business, personal life, and character. And all for clicks and hype." "Receives slightly inaccurate statements about his business."
“Give me an example of at least one lie,” Doug demanded.
-How about the time you stole 6 figures from Jnandez and only gave him the money once he took you to court, and still had the audacity to drag his name through the mud, saying he treated you unfairly.
Oh wait, you haven't told people that one. My bad, Dougy. Probably best I don't mention you tried to make counter claims saying the play and explain format of poker was yours to own.
"We did not "steal" 6 figures," Polk tried to justify himself. "He consistently falsely accused Upswing of this. Ws sued him, not vice versa. He quit Upswing and tried to steal our members. He counter-sued me for calling him the hamburglar. We both lost our cases and we had to pay half his legal fees."
We did owe him some amount (we clarified this from the start) and paid him at the direction of the arbitrator. Forget the number. We did not steal a penny and you are wrong and talking about something you have no idea about.
A few days later, JNandez himself said what really happened:
This thread summarizes the absurd claims UpswingPoker brought against me in a lawsuit in 2018. It took these clowns over 3 years, more than 9000 pages of discovery, and hundreds of thousands of dollars in legal fees, just to realize that they should have folded preflop.
After I terminated the freelance agreement under terms of contract, Upswing sued me for breach of contract, copyright infringement, intentional interference with contractual relations, and declaratory relief.
Doug Polk argued in court that I found a loophole in the contract to terminate the contract. It was a standard clause that they included in other coaches' agreements as well. I had no editorial hand in the creation of the contract whatsoever.
I counterclaimed with breach of contract and defamation after finding evidence that Upswing's reported sales numbers were incorrect and that they had conspired with my ex-employees to smear me and my company's reputation.
My breach of contract counterclaim was granted with contract damages, and I was awarded partial attorney's fees and costs. My defamation claim was denied. In total, Upswing had to pay me $150,216.
Upswing’s original claims included:
(1) That I learned about “Play and Explains” from Upswing and was infringing on their copyright by producing this type of format in the PLO Mastermind and on my YouTube channel.
Upswing and Polk knew full well that this format pre-existed them, and that I had personally produced Play and Explains before any relationship with them. What follows below is a selection of some of my Play and Explains on RIO in 2014.
(2) That I had to take down and turn over my YouTube videos because they qualified as “work” for Upswing, who had hired me to produce specific content as a freelancer. They encouraged me to grow my socials. In fact, I hired Mike Brady, then Upswing’s community manager.
Upswing also argued that videos in the PLO Mastermind and my YouTube channel were derivative work of the videos in the PLO Lab because they handled similar poker game mechanic topics such as "3-bet pots" or had a "course-like structure."
(3) Upswing essentially claimed they owned everything I did related to PLO, even unrelated content created before any agreement with Upswing, including my preflop charts. Years before working with Upswing, I worked on several preflop charts for PLO in Excel worksheets. I put in hundreds of hours to create, update and curate them. I used them with my 1-on-1 students and to improve my game; solvers were not a thing for PLO back then.
When I started working with Upswing, I decided on my own accord to share these charts with Upswing before any agreement was in place. We decided to include them in the products I've created (PLO University and PLO Lab).
At no point was there any reason to believe that Upswing could claim exclusive ownership over these charts. In the process of this lawsuit, they registered a trademark on one of the preflop charts in an attempt to prevent me from using them or any updated versions.
(4) Upswing claimed that I hadn’t been able to do any other work other than for UpswingPoker, knowing full well I was a freelancer, they pushed my 1-on-1 coaching offer, my website, and encouraged me to grow my brand on Twitch and YouTube.
(5) Upswing claimed that unbeknownst to them, I had subcontractors working in the PLO Lab, even though they had marketed the product as me and my “team of PLO pros”, and I had written to Upswing’s President that I had partnered, Filip, that was getting a % of the product.
Doug Polk has yet to respond, although he continues to post content daily on Twitter and YouTube.
A couple of days later, Fernando opened a 2+2 topic, where he offered to ask him additional questions about this trial.
– A few years ago, you suggested you and Polk fight under MMA rules. Is it still valid?
I offered him a boxing match. I still dream that he would agree.
Is the $150k check just reimbursement of legal fees or the total amount of the award?
– This is the total.
– How did you feel during the trial, when you knew that the truth is completely on your side, but you still have to defend your honor?
– The first two years after the incident, which just so happened to be in the courts, were the most difficult in my life. Words cannot express how much pressure I felt because of the false accusations and the lawsuit. Added to this was at that time, I started my own company from scratch.
But this whole process made me a different person, I became stronger and now I cope with stress much better. They say that whatever doesn't kill you makes you stronger. This phrase is perfect for my situation.
“Did you file your lawsuit to get compensation and clear your reputation of false accusations, or in retaliation for their lawsuit?”
“If I had not responded to their accusations, most likely I would have lost and I would have had to pay the costs. Then we found out that Upswing was tampering with the data. Besides, I had a non-zero chance of bringing them to justice for defamation. Then I decided to go all the way.
They tried to dismiss counterclaims, but nothing came of it. As a result, they removed the false words about me from their website. Even before the start of the hearing, they managed to make me a generous offer: I pay them $50,000, and we forget about everything.
I refused, and we went through hearings and arbitration. I won a breach of contract case but lost a libel case (I'll explain the reasons below). They compensated me for my attorney's fees in a non-defamation case because they couldn't prove that I had infringed their copyright.
I knew that I couldn't lose. But in order to defend myself against such absurd accusations, I was ready to risk everything. In the libel case, I figured that I would have to spend about $100k more to get anything. But that would at least force Upswing on the defensive. It ended up working because they removed the lie from their site."
Did you hire lawyers who understand poker or were you looking for someone who specializes in contract law?
“The case was being heard in Las Vegas, so I needed a local lawyer. I sought advice from a well-known player who also had disagreements with Polk in the past. He responded the same day and advised that firm. My lawyers did a great job."
– How has your daily life changed during the process?
“Everything went very slowly because of Covid. Orestto, with whom we have known for many years, took over the pressing issues. He is a lawyer and a former PLO regular. He acted as an intermediary between me and the law firm that helped us. It took three years, and all this time he was 100% focused on my case. And I was able to focus on other things. The hearings and arbitration were held via Zoom and lasted for several days."
JNandez is a guest on Matt Berkey's podcast tonight. It is unlikely that a group of people who hate Doug Polk so much gathered in one place before.