Recently I canvassed the City of Vernon, BC’s, plans to ban MMA competitions from the City’s borders.  The first draft of the proposed law sought to ban both professional and amateur MMA events.  The proposed ban on amateur MMA is legally problematic and arguably outside of the scope of the City’s powers.

Vernon now appears alive to this concern and they are considering a new version of the proposed ban which will only prohibit professional contests.  Below is  the City’s reasons addressing the reasons why the first version is problematic;

Vernon Rational on no ammy ban page 1

 

Vernon Rational on no ammy ban page 2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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And here is the wording of the alternative version of the proposed MMA Ban:

 WHEREAS section 59(1 )(f) of the Community Charter authorizes Council to prohibit
professional boxing, professional wrestling and other professional athletic contests;
AND WHEREAS section 8(3)(i) of the Community Charter authorizes Council to prohibit
activities in relation to public health;
AND WHEREAS under section 2(1 )(a) of the Private Health Bylaws Regulation (B.C. Reg.
42/2004) a bylaw in relation to the protection, promotion or preservation of the health of
individuals must be deposited with the Minister of Health;
AND WHEREAS section 8(6) of the Community Charter authorizes Council to control,
inspect, limit and restrict business, including by establishing rules respecting what must
be done in relation to the business and business activities;
AND WHEREAS section 59(2) of the Community Charter provides that before adopting
a bylaw under section 8(6) or 59(1 ), Council must give notice of its intention as Council
considers reasonable, and provide an opportunity for persons who consider they are
affected by the bylaw to make representations to Council;

NOW THEREFORE the Council of the Corporation of the City of Vernon in open meeting
enacts as follows:
Citation
1. This bylaw shall be cited for all purposes as “City of Vernon Mixed Martial Arts
Bylaw Number 5505, 2014″.

Definitions
2. In this bylaw,
(a) “business” means carrying on a commercial activity or undertaking of any kind
or providing a service for the purpose of profit or gain;
(b) “contest” includes an exhibition;

(c) “matchmaker” means a person who arranges contests between particular
athletes for a mixed martial arts contest;
(d) “mixed martial arts” means unarmed combat between two or more persons
involving the use of a combination of techniques from other martial arts, including,
without limitation, grappling, kicking, striking and holding;
(e) “promoter” means a person who carries on a business in relation to mixed
martial arts;
(f) “second” means a person who assists an athlete between rounds in the course
of a mixed martial arts contest or exhibition.

Mixed Martial Arts
3. No person may engage as a contestant in a professional mixed martial arts
contest.

4. Without limiting section 3 or other forms of athletic contest, no person may engage
as a contestant in a professional mixed martial arts contest if the contest is or
relates to a business or business activity.

5. Without limiting sections 3 or 4, or other forms of athletic contest, no person may
act as a promoter, matchmaker or second in a mixed martial arts contest if-the
contest is or relates to a business or business activity.

6. Nothing in sections 3 through 5 regulates an amateur mixed martial arts contest or
exhibition held by or in relation to the business of a mixed martial arts training
studio or trainer holding a valid and subsisting business license.

Offences and Fines
7. (a) Every person who contravenes, suffers or permits any act or thing to be done
in contravention of, or neglects to do or refrains from doing anything required to be
done pursuant to any provision of this bylaw or any notice issued pursuant to this
bylaw, commits an offence punishable on summary conviction, and shall be liable
to a fine not exceeding the sum of $10,000.00.
(b) Where an offence is a continuing offence, each day that the offence IS
continued shall constitute a separate and distinct offence.

Severability
8. The invalidity or unenforceability of any provisions of this bylaw shall not affect the
validity or enforceability of any other provision of this bylaw, which shall remain in
full force and effect.

It is, at this stage, unclear which version of the law will be voted on although it appears they are leaning towards the legally problematic first draft.  I will continue to report on this matter as further details unfold.

Although Performance Enhancing Drug testing has much room for improvement in the world of Combat Sports one thing is clear, the current landscape with more frequent testing including occasional out of competition testing is far improved from from the sport’s earlier years.

Yesterday, Mixed Martial Arts legend Enson Inoue provided a glimpse into the history of MMA Drug Testing by sharing the following clause from one of his PRIDE fight contracts:

Pride Steroid Exclusion Clause

 

 

 

After this was posted on MixedMartialArt.com and the authenticity of this clause was questioned Enson confirmed it is, indeed, authentic providing the following comments and linking to video where he takes viewers through his PRIDE contract.

Well there would be no reason for me to make this up… Just, it is what it is.  I was cleaning out my house and the contracts came up.  I am in no way saying that all the fighters were juicing up, I’m jut saying exactly what it is.  There was a clause that said that.  Take it or leave it.

 

 

As previously discussed, rapid extreme weight cut practices are a largely unregulated part of combat sports.  These practices come with inherent dangers.  To date, State and Provincial Athletic Commissions  have been largely content to turn a blind eye to this problem with few regulated thresholds addressing these practices.

Recently TopMMANews documented two further examples of the harm caused by these practices.  On June 16 it was reported that

Hopefully Jordan Murray is feeling much better. Jordan had to have emergency surgery on his gallbladder. Here’s what he had to say… “All my weight cutting has finally caught up to me I guess, looks like I have to remove my gallbladder after spending all day in emergency and losing alot of blood the Doctor says its 100% from cutting weight, crazy!”

This week TopMMANews reports another near tragedy noting as follows:

Scary incident for Jer Kornelsen cutting weight for his BFL fight. Here’s what he had to say… “So I passed out and stopped breathing in the sauna trying to make weight. I guess they did CPR on me for a while and I came too in the hospital.. Seriously pissed off and feel horrible. Sorry to my team, Battlefield and mostly my opponent!

If these practices continue there is a tragedy waiting to happen in MMA and when it does the aftermath will land squarely at the feet of the Athletic Commission overseeing the event at question.  Athletic Commissions exist first and foremost for athlete safety.  When a practice develops that is clearly endangering the sports participants Athletic Commissions enter the realm of negligence if they fail to address the situation.  Hopefully commissions are prepared to take note and remember that weight classes exist to protect fighters, not to encourage practices which endanger their health and well being.

 

The BC Athletic Commissioner has released their post bout drug test results following UFC 174.

The Commission advises as follows:

VICTORIA – British Columbia athletic commissioner Dave Maedel has issued the following
statement about drug testing results received following the UFC 174 match on June 14, 2014,
at Rogers Arena in Vancouver:
“The focus of the BC Athletic Commission is to ensure fighter safety and maintain the integrity
of the sport so athletes are competing on a level playing field.
“There were eight UFC 174 competitors tested on June 14, 2014, for the presence of banned
substances, including the two flyweight title fighters and six random competitors. All
competitors’ test results complied with World Anti-Doping Agency Standards subscribed to by
the BC athletic commissioner, as well as our anti-doping policies.
“In addition to the June 14 tests, Mr. Ali Bagautinov – one of the two flyweight title fighters –
was tested out of competition on June 2, 2014.
“Results received by this office from the June 2 tests on Mr. Bagautinov were positive for
erythropoietin, or EPO – a substance banned by the World Anti-Doping Agency. These results
were not available prior to the UFC 174 event due to lab processing times.
“Mr. Bagautinov lost his bid for the flyweight title to Demetrious Johnson.
“I have suspended Mr. Bagautinov’s licence to compete in British Columbia for a period of one
year.”
The Province established the Office of the BC Athletic Commissioner in May 2013. The
commissioner oversees the conduct of professional boxing and mixed martial arts as well as
amateur mixed martial arts, kickboxing, muay thai and pankration events throughout the
province of B.C.
The athletic commissioner is committed to the safety and integrity of combat sports in the
province. Legislation guiding the athletic commissioner is the Athletic Commissioner Act. 

 

 

Chael Sonnen, who climbed to become one of MMA’s most marketable figures, is experiencing a sudden downfall after failing a drug test for the third time in his career.  The fall out not only led to his retirement from the sport but also to the termination of his broadcasting services agreements with the UFC and Fox Sports.

The simple lesson is that fraud, (yes seeking  advantage through the use of prohibited PED’s without a TUE is fraud) can come with steep consequences.

The above consequences, however, may not be the end.  Fraud, once uncovered, can trigger consequences years after the fact.   After Lance Armstrong’s sudden demise from the elite lofts of cycling, Sonnen leveled the following criticism:

When you screw up, you have to own it. That stuff really gets under my skin. Take Lance Armstrong. Lance Armstrong…He cheated, he did drugs, and he gave himself cancer. Well, instead of saying, ‘Hey listen, I cheated and gave myself cancer, don’t be like me.’ He actually made himself the victim and then went out and profited something like $15 million dollars from this ‘Hey, poor me, let’s find a cure for cancer’ campaign instead of just coming clean and saying, ‘Look, here’s what I did, I screwed myself up, and I hope people learn from my mistakes.’ You just watch these guys and can’t help but think, God, what a fraud.

Sonnen, and the MMA community can learn from Armstrong.  His fraud caught up with him and he paid the price.  As previously discussed, fraud also can stall the clock on limitation periods which can leave the door open to far reaching litigation.  Again the unwitting teacher is Armstrong where the Reasoned Decision of the USADA on Disqualificaiton and Ineligibility held as follows with respect to fraud and limitation periods:

A recent American Arbitration Association decision in a 
doping case addressed both the general principle that an athlete who fraudulently conceals 
doping cannot profit from that fraud by claiming that the statute of limitations has run, and the 
specific situation where the panel suspended the statute of limitation because the athlete denied 
under oath that he had doped. (USADA v Hellebuyck, AAA Case No. 77 190 168 11, Jan 30, 
2012) Similarly, under U.S. law, Armstrong should not be allowed to claim the benefit of a 
statute of limitation where his doping has been concealed, and the judicial process subverted, by 
his lying under oath and other affirmative actions which precluded the earlier discovery of his 
doping by USADA.

If Sonnen built his empire on fraud as Armstrong did, anyone who was financially harmed by his actions can seek to remedy this through civil action.  The clock does not start running until the fraud is uncovered.  If the MMA community ever digs into historic PED test results with the same vigour as the USADA did all ill gotten gains can be undone.

Although the mandatory use of gloves in Mixed Martial Arts was one step which helped bring the sport from its ‘human-cockfighting‘ stigma into greater mainstream acceptance, this requirement likely increased the incidence of brain trauma for the sport’s participants.

Gloves protect fighters’ fists from injuries and reduce superficial cuts to opponents but do little to protect an opponent from brain injury.  Given the greater understanding of the long term harm that accompanies head trauma, I decided to look at objective evidence of the greater rate of knockouts from punches in MMA with the addition of gloves.  In short, the knockout rate from punches increased from 1% to 10% after gloves became mandatory for the sport.  While I appreciate that correlation does not always prove causation this is, at the very least, a compelling statistic.

Methodology -

I reviewed the official results from the numbered UFC events from UFC 1 to UFC 50 as reported on Wikipedia.  Where only a KO was noted with no accompanying information as to the cause of the KO, I reviewed the bouts to determine if the KO was from punches or other strikes.  In the early tournament format UFC’s I excluded any alternate bouts as video footage was not readily accessible to review any ambiguously reported knockouts.  TKO stoppages were not included in this study.

Results -

Gloves became a required part of the sport at UFC 14.  For this reason the study broke these events down into two categories, the events from 1-13, and 14-50.  In the first 13 events a total of 101 bouts occurred.  Of these only 4 knockouts by punches were noted.  However, 3 of these occurred with the winner wearing gloves.  The only bout with a knockout stoppage noted from punches with the winner not wearing gloves occurred at UFC 3 with Harold Howard defeating Roland Payne with a KO at the 0:46 mark.

This leaves a margin of one glove-less knockout via punches out of 98 bouts, a frequency of about 1%.

Moving on to UFC 14 – UFC 50 the data reveals a total of 279 bouts.  Of these 27 ended via knockout noted by punches.  This is a total of approximately 10%, a tenfold increase in the rate of KO by punches.

Removing gloves from MMA will increase the rate of fractured hands and superficial lacerations to competitors.  “Bare knuckle” fighting is also likely to be met with resistance by government regulators so the likelihood of the removal of gloves from the sport is slim.  That said, the above shows that the removal of gloves from the sport can reduce head trauma.  If government and MMA stakeholders review the rules of the sport with brain injury in mind the data is fairly clear that gloves protect the hands, not the brain.

The Prestige Fight Club found themselves entangled in Canada’s criminal justice system after hosting an unsanctioned MMA event last year in Saskatchewan.

Following the event Criminal Charges were laid against two individuals involved for hosting an illegal prizefight contrary to section 83 of Canada’s Criminal Code.  In response the individuals charged sued the Government of Saskatchewan and the Saskatchewan Martial Arts Association, alleging that the SMAA was abusing its powers of oversight of amateur MMA in the Province.

In a press release issued today by Prestige, both the criminal and civil cases have reached a compromised end.  The Criminal charges ended by way of a conditional discharge (meaning a finding of guilt is made but no conviction is registered so long as the judicially imposed conditions are met.)   The conditions are reportedly to keep the peace for 90 days and further a charitable donation in lieu of a fine for several thousand dollars.  The Civil suit has apparently been dropped as well as part of the plea bargain reached with the Government.

It is also rumoured that the Province will strip the SMAA of their ability to oversee amateur MMA in the Saskatchewan.

The full press release reads as follows:

________________________________________________

Prestige Fight Club MMA is happy to announce that they have reached a deal with the Saskatchewan Government in regards to charges laid in conjunction with Prestige’s September 28th, 2013 event. Charges stemmed from a new law created with the passing of Bill 209. Prestige Fight Club and the Saskatchewan Government have agreed that a conditional discharge would be in the best interest of all parties involved, thus best thing for the advancement of Mixed Martial Arts (MMA) in the Province.
Presiding Judge Kovatch , states he felt at no time did Prestige intentionally or maliciously try to break the law.

“We feel this is a huge victory for Prestige and for MMA” says Cord Crowthers who, along with Derek Daku, is a founding partner in Prestige Fight Club MMA. Crowthers states, “We have always felt that, if outside observers were given a chance to examine the facts, common sense would prevail and it would be obvious that no malicious intent was meant and no laws were premeditatedly broken.”

The discharge opens up the door for all promotors to move forward on a level playing field, and sets the stage for Prestige to apply for their license to host Saskatchewan’s first all Professional MMA event.

“We want to bring the best possible talent to the fans of Saskatchewan” says Daku. “That means from fighters from Saskatchewan, other parts of Canada and from around the World.” Crowthers goes on to say, “The Prestige Brand will be one of the biggest stages in Canadian MMA, and is looking to give the fans more than they could ever expected from an MMA event here at home!”

The second part of the deal is to start fresh and Crowthers & Daku have taken the initiative in doing just that by agreeing to stay their law suit against the Saskatchewan Government and the Saskatchewan Mixed Martial Arts Association(SMAA). With the same intent the Saskatchewan Government has ask for Prestige’s input in regards to helping with policy , while forming the new Pro Commission regulations and structure. Crowthers stated that their lawsuit was set in motion because “…we had no other option and our backs were up against the wall with the way events unfolded. This discharge, from all charges, allows Prestige to focus on what’s important and we have full expectations the Government wants the same. The goal now is to bring the best possible product to a very savvy market here in our Province.”

If the rumours are true, in regards to time frames, Prestige Fight Club MMA is looking to host their first professional show by the fall. Crowthers and Daku plan to keep the City of Weyburn as the home of Prestige and to host the Inaugural Professional event at Crecent Point Place.

“The city has been behind us from day one and we plan to show them our gratitude in a big way,” states Crowthers.

Prestige Fight Club MMA has hinted that they will be looking at new markets in Saskatchewan in the near future, but when pressed on whether or not they will look outside the Province, Daku says, “only time will tell.”

 

Update June 24, 2014 – the vote for the below bill has been postponed until July 14:

 

City of Vernon MMA Ban Vote Delayed

 

 

 

 

__________________________________________________

Last month I discussed Vernon, BC’s, plans to ban Mixed Martial Arts from their City.  The proposed law has now been drafted and is up for discussion and voting on June 23, 2014.

In short the law seeks to ban both professional and amateur MMA within City limits.  Those that break the law are exposed to a fine of up to $10,000 for “each day that the offence is continued“.

While the City is on sound footing in having the legal authority to ban professional MMA, the proposed ban on Amateur MMA is suspect and arguably outside the scope of the City’s powers given the legal framework the Federal Government and the Province have put together for the regulation of the sport.

The proposed law, Bylaw Number 5505, reads as follows:

WHEREAS section 59(1)(f) of the Community Charter authorizes Council to prohibit
professional boxing, professional wrestling and other professional athletic contests;
AND WHEREAS section 8(3)(i) of the Community Charter authorizes Council to prohibit
activities in relation to public health;
AND WHEREAS under section 2(1)(a) of the Private Health Bylaws Regulation (B.C.
Reg. 42/2004) a bylaw in relation to the protection, promotion or preservation of the
health of individuals must be deposited with the Minister of Health;
AND WHEREAS section 8(6) of the Community Charter authorizes Council to control,
inspect, limit and restrict business, including by establishing rules respecting what must
be done in relation to the business and business activities;
AND WHEREAS section 59(2) of the Community Charter provides that before adopting
a bylaw under section 8(6) or 59(1), Council must give notice of its intention as Council
considers reasonable, and provide an opportunity for persons who consider they are
affected by the bylaw to make representations to Council;
NOW THEREFORE the Council of the Corporation of the City of Vernon in open
meeting enacts as follows:
Citation
1. This bylaw shall be cited for all purposes as “City of Vernon Mixed Martial Arts
Bylaw Number 5505, 2014.
Definitions
2. In this bylaw,
(a) “business” means carrying on a commercial activity or undertaking of any kind
or providing a service for the purpose of profit or gain;

(b) “contest” includes an exhibition;

(c) “matchmaker” means a person who arranges contests between particular
athletes for a mixed martial arts contest;
(d) “mixed martial arts” means unarmed combat between two or more persons
involving the use of a combination of techniques from other martial arts,
including, without limitation, grappling, kicking, striking and holding;
(e) “promoter” means a person who carries on a business in relation to mixed
martial arts;
(f) “second” means a person who assists an athlete between rounds in the
course of a mixed martial arts contest or exhibition.
Mixed Martial Arts
3. No person may engage as a contestant in a professional mixed martial arts
contest.
4. No person may engage as a contestant in an amateur mixed martial arts contest.
5. Without limiting section 3 or 4 or other forms of athletic contest, no person may
engage as a contestant in a mixed martial arts contest if the contest is or relates
to a business or business activity.
6. Without limiting sections 3, 4 or 5, or other forms of athletic contest, no person
may act as a promoter, matchmaker or second in a mixed martial arts contest or
exhibition if the contest or exhibition is or relates to a business activity.
Offences and Fines
7. (a) Every person who contravenes, suffers or permits any act or thing to be done
in contravention of, or neglects to do or refrains from doing anything required to
be done pursuant to any provision of this bylaw or any notice issued pursuant to
this bylaw, commits an offence punishable on summary conviction, and shall be
liable to a fine not exceeding the sum of $10,000.00.
(b) Where an offence is a continuing offence, each day that the offence is
continued shall constitute a separate and distinct offence.

Severability
8. The invalidity or unenforceability of any provisions of this bylaw shall not affect
the validity or enforceability of any other provision of this bylaw, which shall
remain in full force and effect.

In my ongoing efforts to highlight legal action taken against those accused of unlawfully accessing MMA Pay Per View products, reasons for judgement were released last week by the United States District Court, N.D. New York, assessing damages for the unlawful display of a UFC PPV Event by a commercial establishment.

In last week’s case (Joe Hand Promotions, Inc. v. Duke Bazzel Tobacco and Lounge, LLC) the Plaintiff, who held the “exclusive nationwide commercial distribution (closed-circuit) rights” to UFC 128 sued the Defendant alleging that they “unlawfully intercepted, received and displayed the Program at the time of its transmission at their commercial establishment“.  The Defendant failed to respond to the lawsuit and the Plaintiff received default judgement.

The Plaintiff sought over $160,000 in damages broken down as follows:

  • damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii) in the amount of $100,000
  • an award of statutory damages pursuant to 47 U.S.C. § 553(c)(3)(A)(ii) in the amount of $10,000,
  • additional damages pursuant to 47 U.S.C. § 553(c)(3)(B) in the amount of $50,000,
  • an unspecified amount of damages for conversion.

The Court awarded damages far below the sought amount, at only $3,000 and did not award the Plaintiff their attorney fees.  In finding these far more modest damages were appropriate Senior District Judge Norman Mordue provided the following reasons:

Here, the evidence indicates that five individuals were in the establishment at the time of the Program. The total per-patron fee is therefore $274.75 ($54.95 × 5). According to plaintiff, based on a maximum occupancy of fifteen, the sub-license fee for the establishment would have been $900. Both amounts are less than basic statutory damages: $1,000. The Court therefore finds that an award of $1,000 reasonably reflects the injuries plaintiff suffered and achieves the deterrent purposes of the Federal Communications Act…

n this case, while there is no evidence of repeated violations or substantial monetary gains, the evidence shows that defendants never paid the required fees to receive or display the Program, charged its patrons an admission fee and displayed the Program illegally. Thus, the Court concludes defendants’ actions were willful. The most readily identifiable loss plaintiff sustained was the sub-license fee it would have received had defendants legitimately obtained rights to display the Program: $900. Therefore, plaintiff is entitled to an enhancement of the basic statutory damages.

In circumstances demonstrating such willful and purposeful violation, “`it is appropriate to assess enhanced damages in conjunction with statutory damages.’”135 Hunt Station Billiard, Inc., 2012 WL 4328355, at *5 (quoting J & J Sports Prods., Inc. v. Welch, No. 10-CV-159 (KAM), 2010 WL 4683744, at *5 (E.D.N.Y. Nov.10, 2010)). Courts in the Second Circuit typically fix the amount of enhanced damages as a multiple of two or three times the basic statutory damages award. Id.; see also, J & J Sports Prods., Inc. v. Zevallos, No. 10-CV-4049, 2011 WL 1810140, at *4 (E.D.N.Y. Apr.22, 2011) (recommending an enhanced damages award of two times the basic statutory damages), adopted by 2011 WL 1807243 (E.D.N.Y. May 11, 2011); Joe Hand Promotions, Inc. v. La Nortena Rest. Inc., No. 10-CV-4965, 2011 WL 1594827, at *5 (E.D.N.Y. Mar.28, 2011) (same), adopted by 2011 WL 1598945 (E.D.N.Y. Apr.27, 2011). “When determining a proper amount of enhanced statutory damages, `courts have borne in mind that although the amount of damages should be an adequate deterrent, a single violation is not so serious as to warrant putting the restaurant out of business.’” Joe Hand Productions, Inc. v. Zafaranloo, NO. 12-CV-3828, 2013 WL 1330842, at *4 (E.D.N.Y. Apr. 1, 2013) (quoting Kingvision Pay Per-View Ltd. v. Autar, 426 F. Supp.2d 59, 64 (E.D.N.Y. 2006) (internal quotation marks and alteration omitted)). Accordingly, the Court awards plaintiff $1,000 in basic statutory damages and $2,000 in enhanced statutory damages, for a total award of $3,000.

BC Amateur Kickboxing Rules Graphic

 

 

 

The BC Athletic Commission was provided with regulatory powers to oversee amateur kickboxing events via Order in Council 2013-342.  The Office now has a set of interim rules for this sport which have been provided to me.  These can be accessed here:

BCAC Interim Amateur Kickboxing Rules

I understand these will be modified soon with a finalized rule-set being published shortly.  Some of the anticipated changes will address age requirements and safety equipment.  I will update this post once this occurs.