Update January 22, 2015 – Silver has now indeed been arrested and charged in an alleged corruption and bribery scheme.  The full criminal complaint can be found here: Sheldon Silver Criminal Complaint

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As Yahoo Sports writer Kevin Iole speculated in 2013, Legal MMA in New York is not likely “until assembly speaker Sheldon Silver’s gone.

In a surprising twist of events, the New York Times reports that Silver is expected to be arrested tomorrow on corruption charges.  The Times reports as follows:

Federal authorities are expected to arrest Sheldon Silver, the powerful speaker of the New York State Assembly, on corruption charges on Thursday, people with knowledge of the matter said, in a case that is likely to throw Albany into disarray.

The investigation that led to the expected charges against Mr. Silver, a Democrat from the Lower East Side of Manhattan who has served as speaker for more than two decades, began after Gov. Andrew M. Cuomo in March abruptly shut down an anticorruption commission he had created in 2013.

Details of the specific charges to be brought against Mr. Silver were unclear on Wednesday night, but one of the people with knowledge of the matter said they stemmed from payments that Mr. Silver received from a small law firm that specializes in seeking reductions of New York City real estate taxes. Mr. Silver failed to list the payments from the firm, Goldberg & Iryami, on his annual financial disclosure filings, as required.

The total amount of the payments was unclear, but another person has said they were substantial and were made over several years.

This New York Daily News article from late 2014 may have insight into the potential background facts behind the rumoured arrest.

Last year the NSAC took bold steps in attempting to drug test Wanderlei Silva, who at the time was not licensed with the commission.  After Silva unceremoniously ducked the test the NSAC doubled down and issued Silva a lifetime ban for the alleged infraction of their rules.

Earlier this year I discussed why the NSAC was legally on thin ice.  Ross Goodman, Silva’s lawyer, has now filed a memorandum of points and authorities in support of their request for immediate reversal of the NSAC decision.  You can find the full memorandum here (Wanderlei Silva Memorandum of Points and Authorities).

Goodman makes sound points as to why that the commission overstepped their bounds.  The Commission failed to voice any reasons justifying their stance on jurisdiction when they punished Silva.  I have asked the NSAC to provide me with a copy of their Court filings in this case and will update this article when these are provided to me.

Overshadowed in yesterday’s NSAC hearing was Francisco Rivera’s appeal to overturn his loss to Uriah Faber at UFC 181.  After stunning Rivera with an eye poke in the second round, Faber went on to win via bulldog choke.

The referee, Mario Yamasaki, did not notice the eye poke but it was quite evident, on instant replay, that the eye poke occurred and was instrumental in the the final series of events ending the bout.  The NSAC adjourned the hearing for a month as they were unsure if they had jurisdiction to overturn the result.  They asked for legal arguments addressing this issue.  In all likelihood they do not have jurisdiction.  Here’s the breakdown –

Other than when a positive drug test is involved, the NSAC can only overturn a decision in the limited circumstances set out in chapter 467.770.  These are as follows:

1.  The Commission determines that there was collusion affecting the result of the contest or exhibition;

2.  The compilation of the scorecards of the judges discloses an error which shows that the decision was given to the wrong unarmed combatant; or

3.  As the result of an error in interpreting a provision of this chapter, the referee has rendered an incorrect decision.

Clearly 1 and 2 don’t apply.  The only argument can be #3.  Francisco can argue that the referee ‘misinterpreted’ the rules as eye pokes are prohibited, and if seen, should have resulted in a break of up to five minutes.

This argument, however, will likely fall short of the mark.  A referee missing a foul is clearly different than a referee misinterpreting the rules and is not contemplated in the plain reading of point #3.

Rivera can argue that the foul was clear on instant replay and the referee should have changed his decision after this became clear.  Unfortunately this will fall short of the mark as well as Nevada’s instant replay rule is limited as follows

After making a determination, a referee may view a replay, if available, at the conclusion of a contest or exhibition stopped immediately due to an injury to an unarmed combatant

So the use of replay is only to be used when the contest is stopped due to an injury.  Here the contest was stopped due to legal submission so the instant replay rule is not triggered.

In short, unless the rules are overhauled, the NSAC would not have jurisdiction to overturn this bout decision based on a referee missing an unintentional eye poke.

UPDATE January 16, 2016 - the full CIR test results were released and can be found here – jon-jones-ufc-182-steroid-profile

January 8, 2015Bleacher Report has interviewed NSAC Director Bennett who confirms that CIR testing was indeed done and that “none of the results were a concern“.

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In the wake of Jon Jones’ recent cocaine scandal, a potentially bigger and more important story has developed.  The out of competition tests Jones had prior to his UFC 182 light heavyweight title defense revealed seemingly unusual testosterone to epitestosterone ratios.  You can click here for background information on this.

A lot of questions are being asked about these findings and speculation is being raised as to the possible cause of these low levels.  Further testing can apparently clear the air.

The Nevada State Athletic Commission, the government body who sanctioned these tests, has the ability to address these questions.  Jones’ samples were reviewed by the World Anti Doping Agency accredited lab in Salt Lake City.  This is a world class facility and there is a strong likelihood the samples still remain in their custody.  If the samples are still available CIR Testing can reveal whether synthetic testosterone played a role in the readings.

The NSAC, who continue to have jurisdiction over this matter, and whose mission statement is to “ensure the health and safety of the contestants” have a duty to get to the bottom of this matter.  They can request that CIR testing be done if the samples are still available.

I have asked the NSAC to confirm if Jones’ samples are still available and whether their office any plans to conduct CIR testing.  I will update this article if/when they reply.

Today it was announced that Jon Jones tested positive for cocaine metabolites in a random drug test taken 30 days prior to his latest title defense at UFC 182.

The results were known ahead of the bout so why was the fight allowed to proceed?  Because cocaine, while prohibited by the Nevada State Athletic Commission, is only banned ‘in competition’.

NAC 467.850 Subsection (f) adopts the WADA prohibited list of substances.  The latest edition lists cocaine as a prohibited substance but not out of competition (ie prohibited at any time) but only in-competition. Cocaine is listed under S6 of the Prohibited list which comes with the following stipulation In addition to the categories S0 to S5 and M1 to M3 defined above,

the following categories are prohibited In-Competition:”

Generally “In-Competition” means the period commencing twelve hours before a Competition in which the athlete is scheduled to participate through the end of such Competition and the Sample collection process related to such Competition.

Interestingly NAC 467.850 specifically states that stimulants cannot be administered “either before or during a contest or exhibition” but the term before is not defined so it can be argued that cocaine use some 30 days prior to bout is prohibited but the NSAC seems content to defer to the WADA distinctions of in and out of competition use.

While the result does not overturn the result of the bout the door is open for potential discipline with NAC 467.886 prohibiting a licencee from engaging in “any activity that will bring disrepute to unarmed combat“.

Some interesting points to consider from all of this –

1. Why is the NSAC testing out of competition for a substance not banned out of competition?

2. Since the results were available prior to the bout why the delay in releasing the results to the public?

3.  Why are the results being released publicly at all since the substance is beyond the scope of the relevant substances to be tested for during the timeframe?

4.  The NSAC has told the LA Times that “discipline is an option available to the commission”.  While this is certainly true, why would the commission not canvass the matter of discipline once the results were known instead of waiting until after the lucrative bout took place?

5.   What, if anything, is the UFC prepared to do about this as the use of cocaine violates their Code of Conduct which specifically allows for discipline to be imposed for “substance abuse”.?

In my ongoing efforts to highlight studies addressing safety issues in combat sports, an interesting study was recently published by Benjamin Lee and Stuart McGill from the Spine Biomechanics Laboratory, at the University of Waterloo (Canada) testing the peak forces caused by MMA gloves contrasted with 16 oz boxing gloves.  The study also reviewed the time to peak force between these gloves along with their patterns of wear during 10,000 strikes.

The study reached the following conclusions:

MMA  gloves  produced  4‐5  times  greater peak force and 5 times faster load rate compared to the boxing glove. However, MMA gloves also showed signs of material fatigue, with peak  force increasing by 35% and rate of loading increasing by 60% over  the duration of  the  test. Boxing glove  characteristics  did  deteriorate  but  to  a  lesser  extent.  In  summary,  the  kinetic  properties  of  MMA  glove  differed substantially from the boxing glove resulting in impacts characterized by higher peak forces and more rapid development of  force. Material properties including stiffness and  thickness play a role in  the kinetic characteristics upon impact, and can be inferred to alter injury mechanisms of blunt force trauma. 

The full study can be found here: Striking dynamics and kinetic properties of boxing and MMA gloves

I asked physicist Jason Thalken, a person who knows a thing or two about the science of striking, for some feedback on the importance of this data who felt that the peak force metric was not nearly as important as the faster time to peak force produced by MMA gloves.  Here are Jason’s comments:

Jason Thalken 1

JAson Thalken 2

As a long time fan of MMA and other combat sports I feel past, current and future athletes are owed a fair and sober discussion of the realities of traumatic brain injury.  Yes a bit of common sense tells us these sports have inherent dangers and yes being hit in the head is not good for ones health.  That said, the legacy of traumatic brain injury usually builds slowly over time and can be a near invisible problem that deserves its ever increasing attention.

To this end I recently came across a video and medical case study from storied MMA veteran Guy Mezger who has been left with a legacy of traumatic brain injury after ‘17 years of being hit in the head.’

Here is Guy’s story along with a case study detailing his symptoms.  I’m not sharing this to bash the sport, simply pointing out an ugly byproduct that can come with a career in MMA.

Guy presented with:

  • daily bouts of severe dizziness
  • was not able to perform normal daily activities due to lack of balance
  • difficulty tracking written word
  • difficulty walking
  • daily mental fatigue
  • memory loss
  • Profound reduction in his balance on a normal surface, even with his eyes open.
  • Severe reduction in balance on a flat surface, with eyes closed.
  • Profound reduction in balance on an unstable surface with eyes open.
  • Profound reduction in balance on an unstable (foam) surface with eyes open.

The below video is an advertisement detailing some treatments Mezger took which fortunately appear to have lessened some of his symptoms.  Despite the commercial nature of the below video the points made about having an exit strategy and the focus on brain health are worth highlighting for those involved in combat sports.

On a related note, former MMA fighter and boxer Michele “Diablita” Gutierrez recently shared the long term effects she has suffered from combat sports which can be found here.

If you’ve ever attended to or listened to a live athletic commission administrative hearing you will note a lot of factual statements are provided without deep scrutiny  (how did those steroids end up in your system?  Uhhh, I think I took some bad supplements..).  We now have a perfect litmus test to see how much deception athletic commissions are prepared to tolerate and it comes courtesy of UFC light heavyweight champion Jon Jones.

Earlier this year Jones was brought before the NSAC to answer for a pre-fight brawl he engaged in with Daniel Cormier while promoting their upcoming UFC light heavyweight championship bout.  Jones admitted to wrongdoing and in asking for leniency in punishment noted that he already faced steep repercussions from the brawl leading the commission to believe he lost his lucrative Nike sponsorship due to this event.  Referring to the Nike sponsorship Jones declared, after being sworn to tell the truth, as follows to the Government commission:

I’ve faced some punishment already.  I’ve lost a very big endorsement of mine.  One of my biggest.

When asked about the value of the lost endorsement Jones confirmed its “my Nike deal”.

Jones’ lawyer, who confirmed at the outset that the purpose of attending the hearing was to ask for leniency, noted as follows as to the value of the lost deal “its over six figures…its pretty damaging if you really consider it“.

Jones now confesses he “worded it wrong“.  In other words, the commission was deceived if they ‘considered’ that Jones lost an ‘over six figure’ Nike sponsorship due to the Cormier brawl. MMA Fighting has the story noting:

When I was in front of the commission, I definitely worded it wrong,” Jones said on a UFC 182 media conference call. “Nike did not drop me because of that fight and I kind of owe an apology to Nike for saying they dropped me because of the fight. They actually didn’t. Nike has been known to support its athletes through much worse things than a brawl in the middle of MGM [Grand]…

“It was already official,” said Jones…”Everybody at headquarters knew. My team knew that I wasn’t gonna do my third year with Nike. And then we got into the brawl.”…

“The truth of the matter is, I did not get dropped by Nike,” Jones said. “It was a mutual thing, something we had discussed months before the actual fight.”

Perhaps most importantly, during the deliberations the Commission noted Jones’s ‘contriteness’ in not suspending him but instead imposing community service as a punishment.

Jones apologized to Nike but its the Commission he should be worried about.  This deception should not be taken lightly as it effects the integrity of their decision making process. NSAC Rule 467.885(3) specifically allows the commission to “suspend or revoke the license of, otherwise discipline” a combatant who “Provided false or misleading information to the Commission or a representative of the Commission“.

Now lets see how this unfolds.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a fee charging martial arts school is no different than any other business and is required to purchase a business licence.

In today’s case (City of Burnaby v. Gildemeester dba Master Gee’s Black Belt Academy) the Respondent failed to pay its renewal fee from 2010-2014.  When the City asked for these payments to be made the Respondent replied arguing he was not required to purchase a business licence.  The Respondent argued that “he is exercising private rights with other private persons and is not “operating” in the public.  He asserts that a private person need not obtain a business licence to do private activities.“.

The BC Supreme Court disagreed and granted a permanent and mandatory injunction preventing the business from operating in the City of Burnaby unless it obtained a valid licence.

Not quite an earth shattering development, just a quick judicial reminder that there is nothing special about for profit martial arts academies exempting them from the requirements other businesses must comply with

BloodyElbow has provided coverage of the UFC Anti Trust lawsuit that is second to none.  In their ongoing coverage economist Paul Gift, who is experienced as an expert witness in anti trust lawsuits, dissected the claims and provided a unique breakdown.

One point Gift addressed was the fighters challenge to UFC’s exclusivity requirement in their contracts.  He pointed out that contracts generally need to exceed 8 years before courts consider them to be long term and therefore problematic.  He opines that UFC contracts, which may average around three years, may not be met with judicial criticism.  He notes as follows:

The fighters’ strategy has just been clarified. If a credible economic argument is to be made about raising rivals’ costs with exclusive contracts, they must be long term. This is an absolutely essential component to the story. In my experience, exclusive contracts in the range of three years or less are usually viewed as short term. 4-8 years is debatable and 8-10 years or more is generally viewed as long term. This is because contracts don’t expire all at once. They’re generally staggered.

I once worked on a case where a company foreclosed 100 percent of a critical resource from its competitors with exclusive contracts. That foreclosure rate is insane, but the length of the contracts was the critical component. They averaged about five years which meant around 20 percent would expire and become available for free and open competition every year. The defendant won the case partly because the contracts weren’t long enough to put its rivals at a sustainable competitive disadvantage.

In what follows, I’m going to use the Eddie Alvarez contract as a baseline. The term of Alvarez’s contract was the earlier of 40 months or 8 bouts. So the worst-case scenario is a length of 3 years 4 months as long as he’s reasonably active. This puts the plaintiffs in a real bind as they’re going to have a hell of a time showing that 3 years 4 months is long term. The complaint reveals that they likely know this and their strategy will be to downplay the contractual term (“Regardless of the term of the agreement”) and focus on the extension clauses (“thereby effectively extending the exclusivity provisions indefinitely”).

I don’t take anything away from Gift’s expertise and perspective, however, context is always important.  While three years may not be a long time in the labour market generally, in the realm of ‘elite professional MMA’, three years may be a lifetime.

If the Court finds that the average UFC contract length mirrors the average professional athlete’s time in the elite league the exclusive time period will be all the more problematic considering the crux of the Plaintiff’s allegations is that the UFC prevents fighters from enjoying reasonable access to true free agency during their short careers.  If you are following this lawsuit you can expect this topic to be acutely studied.

I have reached out to several people for statistics on the average tenure of a fighter in the UFC in the Zuffa era.  I don’t have an answer but if one is provided to me I will update this article to help add context to the issue of fighter exclusivity in the face of this anti trust lawsuit.

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Update December 30, 2014 – Paul Gift was kind enough to reply to this article and provide the requested statistics.  I encourage anyone following this story to read Paul’s article along with the comments that follow (including John Nash’s comments citing USA v. International Boxing Club of New York which is likely one of the template’s for the Plaintiffs claim).

In any event, here are the statistics showing “the average length of a fighter’s career in major MMA is about 1 ½ years or 3.3 bouts.”

Statistics Average Carrer Length in Elite MMA