Yesterday, we recalled the history of the conflict and talked about the results of arbitration between the two owners of the popular poker schools. The next day, Fernando Habegger went into more detail about the accusations against him and talked about the "jokes" that Doug Polk used to destroy his reputation and interfere with the work of PLO Mastermind.
To begin with, I want to explain why I decided to cover the events that were judged two years ago. The fact is that Doug Polk continues to broadcast on Twitter incorrect information about the outcome of the trial and the details of the proceedings. In this thread, we will clearly point out the incorrect parts of his interpretation of events.
Doug is trying to make it appear that my contract termination with Upswing was at the center of the lawsuit. This is incorrect, as many other claims by Upswing were discussed in court, none of which were upheld.
I, for my part, also made a number of claims related to breach of contract and defamation. The contract claim was satisfied, I received compensation. Upswing failed to prove its position to the arbiter, and the arbiter allowed me to transfer my legal costs to them. The libel suit was dismissed.
Below Doug writes that they knew from the beginning they owed a debt to me and told me the exact amount.
In reality, we had to request their financial information several times and go to different sources because the data presented to me in 2018 was incorrect. So, back in 2018, it was obvious to me that it was impossible to get similar income figures in December and January. It also came to light that Upswing had not refunded my share of affiliate commissions, which was a breach of our contract, for which I was compensated by court order.
Doug wrote that my accusations against them in court were rejected multiple times. In fact, this is not the case – the court rejected only the charge of libel, which I will discuss in detail below.
Doug stated that the amount of their debt was incomparably lower than I claimed before the trial. This is true, but in his interpretation, he claims I am to blame for the wrong assessment of the debt. In fact, I took all the information about the number of subscribers from the regular updates of UpswingPoker employee Matt Colletta. In the video I attached, Colletta says we have 824 subscribers in early December. However, later it turned out that Upswing had miscalculated their number and found out about it only at the beginning of January. By that time, I had already sent them a notification about the upcoming break in cooperation, but I still had 90 days of the freelance contract.
The Upswing staff didn't bother to tell me that I should expect a much smaller share of the subscriptions. So, of course, I was very surprised when I saw the Upswing report in May 2018, and assumed that something was wrong with it.
I was right when I didn't believe that my real income from subscribers was only $1,300, but the difference was not as big as I thought based on the data that Colletta told me before they discovered the error.
Doug writes that I have consistently accused Upswing of stealing six figures from me. I don't think I ever mentioned this after I released the response video in 2018, and at the time I found it hard to believe otherwise based on the information I had about the number of active subscribers and course sales.
He also talks about how I tried to steal their followers. First, after I left, they closed the Omaha subscription. Secondly, this is a weak statement from a competitor: you are not stealing subscribers, but gaining their trust. The client goes where he will get the most benefit.
In addition, the benefit of attracting new people in the short period of our partnership was mutual. After my $500 to $80k marathon in 100 days, I had a lot of Twitch followers. Upswing, without investing in advertising, gained a lot of new clients through my streams even before the launch of the PLO University program, and I actively promoted both Upswing Omaha projects. They publicly stated that they were satisfied with my work, and never once asked me to remake or shoot a video due to insufficient quality. I also managed to shoot a lot more videos than Upswing expected.
Doug said we both lost in court. In fact, the court awarded me payments for your non-compliance with the contract and shifted the payment of the lawyers to Upswing. All this pretty unequivocally says that the upper hand in the dispute was always with me.
Doug misinterprets the outcome of the proceedings, claiming that we had reached a pre-trial agreement. No, it was the arbiter's verdict, final and binding. It was he who ruled in my favor and awarded compensation and payment of legal costs. This is not an agreement.
Before the hearing, Upswing did offer to settle the case out of court: for this, I had to pay a fine of $50,000. That's how wrong their assessment of the judicial prospects was! I refused. By the way, I was the one who insisted on arbitration from the very beginning.
Let's now discuss the defamation allegations and talk about the lies that Upswing spread about me. Below I will give a complete list in chronological order.
Doug said that we "have come to a compromise" in the PLO Lab deal.
In April 2017, I created a PLO University course on a 25% commission rate and told Upswing that I needed better terms for a second project. We started discussing the second project already in April.
Matt Colletta contacted me in August to discuss my wishes for better terms. I replied that it would be fine for me to split the costs and income in half since I would need to hire additional staff to work on the project. Colletta understood my position and said that we would discuss it later.
We did not return to the discussion, but when he suggested that I start working on the content, I thought that we had come to an agreement. In August and September 2017, I recorded 35 videos for PLO Lab.
In the first week of October, Upswing had its final sale before PLO University closed. As part of the campaign, all PLO University subscribers will have access to the first month of the PLO Lab for $1. The launch of PLO Lab was scheduled for October 23rd.
October 18-19, Matt Colletta sent me a contract for PLO Lab, where I received 30% of the income. Earlier in our negotiations, this figure did not appear. I had already invested in the team and done a significant amount of the work, so I was not happy with such conditions, but I preferred to sign a contract and move on since the alternative was to completely refuse to continue working together, which would waste months of work and risk of being attacked by Upswing. In addition to the salaries of my assistants, I also invested in servers for the solver, which are necessary for further content production.
I tried to haggle, but Upswing were unwavering and stood their ground. No compromise was reached. The reason Doug mentioned this was only to emphasize my greed.
I ultimately decided not to continue working with Upswing as a freelancer because I wasn't happy with the terms. In November, I first learned that the affiliate commission through which PLO Lab users come is paid permanently and has no statute of limitations.
By the time I announced the end of the contract in late December, Upswing had not held the two scheduled monthly meetings where we were supposed to discuss the Omaha project.
Doug: “We told our lawyer what we wanted, and for some reason, he added a clause where either party can cancel everything after 90 days. I don’t know why he did it, but we didn’t pay attention to this point, didn’t notice it.”
This clause was in both of my contracts (PLO University and PLO Lab), and everything points to the fact that they were developed directly by Matt Colletta. Colletta was not at all surprised when I first told him that I wanted to use the specified clause to terminate the contract.
In general, the 90-day clause is designed to protect a company that can fire a coach and hire a new one. I think Doug decided to blame his lawyer to clear Upswing of liability.
Doug: "Before he terminated the contract, Fernando pocketed his share of the six-month and one-year courses."
This is completely untrue. Doug knows that I was informed in advance of my agreement to pay my share of the return of users' funds. The message that I kept all the money for myself is a direct lie to tarnish my reputation.
Doug: " We had a non-compete deal, but only for the duration of our partnership with Upswing Poker."
This is not true, since the agreement did not say anything about non-competition. The only condition was a ban on the use of original content made for PLO Lab.
Nothing has stopped me from doing any other poker business as long as I am in full compliance with my contractual obligations as part of my work on PLO Lab. I was an independent contractor with very specific requirements.
Doug: "If you consider all the facts of this case, [Fernando] at least once or twice flagrantly violated the contract."
No. I didn't break the contract, Upswing did. All claims by Upswing were rejected by the arbiter. My claim under the contract was granted.
In a now-deleted thread on 2+2, Doug writes that I found a "loophole" in the contract. This lie was repeated by other Upswing employees. Sometime later, after they damaged my reputation, Doug agreed with someone who used the word "loophole" carries a negative connotation and therefore is incorrect ... and agreed in a comment on a video that was not even included in the listing on YouTube and had reached a much smaller audience.
Thomas "SrslySirius" Keeling greatly exaggerated the amount that clients had to be reimbursed after I left.
On January 7, 2018, Doug sent an email to Upswing customers saying: “Fernando has decided to leave PLO lab. In 90 days, he will leave Upswing instead of fulfilling his obligation to us to make content for PLO Lab for 18 months."
My obligations were spelled out in the contract, and I fulfilled them in full. 90 days of optional care was part of that commitment. Everything else is manipulation, which looks even worse, given Upswing's subsequent claims that I made great content and legally took the opportunity allowed in the contract to end the cooperation.
On January 13, 2018, Polk used a Photoshop edited photo in a Youtube video of me holding a large knife in one hand and a Machiavelli book in the other. On March 24, 2021, Polk posted a comment on social media calling me "jscamdez", blatantly portraying me as a dishonest person, although Doug knew very well that everything was done according to the law on my part. I didn't cheat Upswing or Doug Polk.
On several occasions, Upswing employees have written about me scamming older people. In particular, Upswing owner Ryan Fee publicly wrote that I "tricked grandma."
This lie concerns scarves knitted by the mother of one of my former employees, for which he asked me to pay. I have already apologized for my behavior in this situation. I avoided contact with him to get away from the negative emotions associated with the termination of our partnership, and not because of the amount of my debt.
Immediately after Ryan's post, I asked this person to send me souvenirs in exchange for the full price. However, he refused to sell these scarves to me and sold them to the PLO Matrix team. Of course, Doug took the opportunity to blow the story up and make me look as bad as possible by portraying the mother of an ex-employee as an arthritis-stricken old woman.
Upswing dedicated a page to me on their website with the title: "Meet Fernando Habegger: JNandez87's Dirty Deeds." This page was there for two years and was the first piece that would show up on Google for my name. It provided false information about me on the subject of the contract and promises, which I wrote about in detail above.
It also mentioned false accusations against me made by a former employee with the participation of Matt Colletta on the 2+2 forum.
During the course of the proceedings, Upswing sent us two Word Documents titled "Fernando WIP" (work in progress). The second document was edited personally or with the assistance of Matt Colletta, who inserted the words "hypocrite", "why we left", "dirty method of doing business from Fernando Habegger”, “Fernando deceived us and deprived us of the promised 10% equity”, and also removed the creator of PLO Matrix with it.
It's funny that this page, unlike the 2+2 forum, did not claim that my content "was actually created by a PL10 player who loves Omaha as a hobby." (We will return to it later.)
All this, of course, was aimed at destroying my business reputation. By that time, we were already competitors in the poker education market, and my video explaining my position on the conflict with Upswing caused a great response.
Let's go back to the accusations of cheating employees mentioned in the post on 2+2. Firstly, Colletta personally added the word "deception" to the text. The employees and I just agreed to change the payment scheme from 10% equity in the company to a share of the income, since this was the only way they could receive some money every month, regardless of the company's expenses. After all, if you have 10% equity in a business that brought in $50k in a month, this does not mean that you will receive $5k, since profits are rarely shared among shareholders and are usually invested in development, equipment, and so on. While working on the PLO Matrix, I regularly reinvested the profits I received and, even with 25% equity, did not receive any payouts. I was the only one who financed both projects (PLO Matrix and PLO Mastermind) and was ready to work for zero for a long time, but for other team members, this was a problem.
Since they wanted to have money in their hands every month, we changed the scheme from 10% equity to 8% of total income, which, at $50k per month, allowed us to pay $4,000 to team members and save them from worrying about our expenses.
The accusation that I did not participate in the creation and editing of the content of the PLO Mastermind school I created is completely unfair. Other researchers helped me, otherwise, I could not release videos almost daily, but I created topics and edited 100% of my videos.
PLO Mastermind customers, to their credit, were able to figure out how well-founded these allegations were, and only one person asked for a refund based on publications on 2+2.
I agree that ideally, all roles and pay should be agreed upon before starting work on a new project. In reality, this does not always work out: as in the case of Upswing, we completely trusted each other and wanted to get to work as quickly as possible, even before we settled all the details.
First, we agreed on a scheme with co-ownership and shares of equity. When they realized that this did not allow them to receive regular payments, they settled on a percentage of income.
By that time, we were having problems with PLO Matrix, a conflict of interest had arisen, PLO Mastermind was developing its own software, and ultimately we decided not to try to integrate PLO Matrix into Mastermind, which upset a lot of people. The team split, trust was lost, and three team members demanded that I put them on a fixed monthly salary, which I couldn't afford. Then we parted ways without any hostility. I paid everyone the full amount according to our income share agreements, which means they received a larger amount than they could under the original agreement.
Now I would have done everything differently, but there was no malice in my mistakes.
Johnny confirmed to Matt Colletta that I had no debt to him or Philip except for those ill-fated scarves.
The 2+2 post mentions the $60k CAD invested by the creator of PLO Matrix in PLO Mastermind. However, it does not say that I gradually returned this amount through my own investments in PLO Matrix. On June 25, 2018, in the PLO Matrix discord, my former employee wrote that the indicated amount was fully paid by me in a few months. Upswing ignored this message, pretending that I still had a debt.
By December 2018, UpswingPoker had sold PLO Matrix to another company.
Doug and other agents of Upswing made an effort to spread Colletta's accusations that Mastermind's PLO content was created by an amateur $0.05/$0.10 PLO player. Doug repeated this several times on YouTube streams, referring to a post on 2+2.
Of course, this is a lie. A month before the 2+2 post appeared, this person posted on the PLO Matrix discord a positive chart of 90,000 hands played at zoom50 and zoom100. More importantly, he had many months of experience working with solvers and creating content for PLO Lab.
Upswing stopped spreading these lies only after realizing that the same person helped me prepare the videos for the PLO Lab course as well.
The arbiter, in my opinion, underestimated the seriousness of this slander.
On May 5, 2018, Doug posted on Reddit that I "made substantially over $200,000 with Upswing in 2018."
This is wrong. On March 20, 2018, their lawyer sent me a letter with a different amount – $1,321 "for work done from December 17 to March 18."
In July of that year, Doug said of our dispute over payment for PLO Lab, "We don't owe him anything else." A detailed examination of the reporting showed that Upswing incorrectly calculated my share when returning subscriptions. When a person buys a subscription for $100, the affiliate gets $25 and the $75 is split between us 70/30 ($52.50/$22.50). For those who requested a refund, Upswing paid the full amount and charged me $30 instead of $22.50.
After checking all the sales and returns details, Upswing owed me $17,389.07, not $1,321.03. The arbiter awarded me this amount.
As for defamation, it is very difficult to prove it in the USA. It is usually required to prove that it caused economic damage. We failed to prove this in arbitration. The PLO Mastermind School has been more successful than Upswing's PLO Lab, and I personally have been very successful in the poker field.
I think it's obvious to everyone that my reputation really took a hit in 2018 because of the efforts of Doug and Upswing. However, in court, Doug took the line “It was just a joke,” and the arbiter did not find sufficient grounds to grant my claim for damages for defamation.
Following a three-year litigation, Upswing paid me $150,216.
In conclusion, I want to say that I did not write about this in order to compare the severity of the mistakes that we all made in this story. Many of them are due to the poor quality of communication, which has led to a lack of clarity on important issues and a serious difference between our expectations.
