In my ongoing effort to highlight safety studies addressing combative sports, a recent study was published in the Journal of Physical Medicine Science studying dehydration and skeletal muscle damage in elite wrestlers.

The study involved seventy-two elite wrestlers who participated in the Turkish Wrestling Championship and revealed that dehydrated wrestlers suffered from higher level of skeletal muscle damage than wrestlers who were not dehydrated.  The authors provided the following summary:

In summary, fast and/or higher levels of weight loss before a competition produced differences in wrestlers’ hydration indicator levels. Damage in skeletal muscles of the dehydrated wrestlers was greater than in those hydrated, but no difference was found in the inflammation levels of the groups. If it is necessary to lose weight before a competition, athletes should do it in a way to achieve a gradual and extended weight loss over a period of time depending on the weight loss targeted. In addition, while athletes are losing weight, they should keep levels of hydration and skeletal muscle damage indicators within their reference ranges through ergogenic aids. Thus, ergogenic aids will play a mediator role for wrestlers wishing to demonstrate maximum performance and to lead a healthy life.

This serves as yet another reminder to regulators that allowing rapid extreme weight cuts prior to competition and the dehydration that accompanies this practice is inconsistent with looking after fighter welfare, a central tenet of the mission statement of combat sports Athletic Commissions.

The full article can be accessed here Dehydration, skeletal muscle damage in Wrestlers

and below is the article’s abstract –

Abstract. [Purpose] The present study aimed to identify weight-loss and hydration levels before competitions among elite wrestlers and determine the skeletal muscle damage and inflammation levels after dehydration. [Subjects] Seventy-two elite wrestlers who participated in the Turkish Wrestling Championship. [Methods] With the help of specialists, 5 cc of blood were drawn from the forearm veins of the wrestlers. Laboratory analyses of Na+, BUN, Glucose, CK, LDH, AST, ALT, C-RP levels were performed. Using a mathematical formula for hydration the POsm levels of the athletes were calculated. [Results] The wrestlers were divided into two groups based on hydration status. There were significant correlations between hydration indicators of Na+, BUN and PBWL values. There were significant differences between AST, LDH, CK values and skeletal muscle damage indicators of the two groups, but there were no significant differences between the inflammation levels and C-RP values of the groups. [Conclusion] No differences existed in inflammation levels among the wrestlers, although dehydrated wrestlers suffered from higher level of skeletal muscle damage than wrestlers who were not dehydrated.

 

UFC fighter Tim Means has been the latest athlete to be advised of a potential Anti-Doping Policy violation stemming from an out-of-competition sample collection.

He has recently speculated that the positive result may be due to tainted testing equipment or tainted supplements.

Assuming his suggestion that he ingested tainted supplements proves true, Means will still teach a valuable lesson to the rest of the UFC’s roster, namely that the brave new world of USADA’s anti-doping program is one of ‘strict liability‘.

In other words, the prohibition against banned PED’s is absolute and athletes are responsible for what they put into their bodies even if they are wholly without blame.

There is some leniency built into the policy with the punishment potentially being as light as a reprimand for truly unintentional doping with s. 10.5.1.2 of the ADP reading as follows –

In cases where the Athlete or other Person can establish that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, the period of Ineligibility set forth in Article 10.2, depending on the Athlete’s or other Person’s degree of Fault. 

Assuming the source of the PED can be linked to a contaminated product (which will take more than an athlete’s word as the policy requires proof on a balance of probabilities), an athlete will also have to demonstrate extreme diligence before triggering leniency in the world of anti-doping punishment. USADA expects athletes to take the following steps in discharging diligence –

(i) read the label of the product used (or otherwise ascertain the ingredients),

(ii) cross-check all the ingredients on the label with the list of prohibited substances,

(iii) make an internet search of the product,

(iv) ensure the product is reliably sourced and

(v) consult appropriate experts in these matters and instruct them diligently before consuming the product.

While the ‘contaminated product’ defence has yet to be tested under the UFC/USADA anti doping policy, USADA has a vast track record of dealing with unintentional doping in other sports and have been known to hand out steep penalties in such circumstances.  You need look no further than the recent decision of USADA v. Asfaw to see they handed a two year ban to an athlete who was found to have indeed taken a banned substance unintentionally.

 

A scheduled bout for the vacant World Series of Fighting welterweight championship has apparently been derailed as a result of the promotion’s contractual champion’s clause.

MMAFighting’s Dave Doyle reports that after WSOF president Ray Sefo announced the planned bout between Jake Shields and Jon Fitch was off because “Jake Shields has informed us that he does not intend to honor the terms of his existing contract at this time and declined to sign a bout agreement to fight Jon Fitch” Shields revealed that the real sticking point is the so-called ‘champion’s clause’ which automatically extends the contract should he win the title on his last bout.

Doyle reports as follows

For his part, Shields says he was looking for an increase in the show money on his current deal, and feels they weren’t far off on contractual terms. But according to Shields, WSOF basically told him to take the title shot or leave it, and would not offer him the opportunity to take another fight against a different opponent and finish out his contract.

“They basically said they were just going to sit on my contract,” Shields said. “It was take the title fight, or no fight at all. I signed the contract I signed of my own free will, I’m not complaining about that, but it’s either take the title fight and get stuck with my old deal if I win, or no other fight. This is happening right when I was about to start my camp.”

The clause in question has not been publicly disclosed but presumably it is modeled after the Zuffa clause which has previously been publicly revealed through litigation which reads as follows

If, at the expiration of the Term, Fighter is then a champion (in the promotion), the Term shall automatically be extended for the period commencing on the Termination Date and ending on the later of (i) one (1) year from the Termination Date; or (ii) the date on which Fighter has participated in three (3) bouts promoted by (promoter), regardlesss of weight class or title, following the Termination Date

It is not difficult to see why such a clause can prove problematic as if it gets triggered it essentially limits bargaining rights for a fighter at a time when their market value is presumably at its highest. As labor law professor Zev Eigen previously told Bleacher Report such a clause, which can arguably be triggered in perpetuity, may not stand up in court with Eigen noting “I think it’s potentially a violation of the 13th Amendment, the prohibition against slavery or involuntary servitude. You can’t force someone to work for you. I don’t know how, under contract law, that would be enforceable. But I don’t think it’s been challenged.”

As perhaps the leading jurisdiction when it comes to tackling rapid extreme weight cuts in combat sports, a practice which has led to notable injuries and even death, California has passed emergency rules adding much needed regulation and oversight to the dangerous practice.

The new rules, which are the most robust passed by any US or Canadian jurisdiction, read as follows and are self explanatory in their scope:

CSAC Weight Cut Law

As first reported by MMAFighting’s Marc Raimondi, “these rules can go into effect as early as March 1. Because these were emergency rules, they were added on a trial basis and will be revisited by the commission at a later date“.

Update – The CSAC has apparently suspended Tarverdyan for the three months and fined him $5,000 with Marc Raimondi reporting as follows

Raimondi Tweet re ET

____________________

Last month the California State Athletic Commission revoked Edmund Tarverdyan’s second’s licence.  As the head trainer and corner to UFC’s former bantamweight champion Ronda Rousey, among other athletes, this can have an adverse impact on Tarverdyan’s involvement in the sport.

Tarverdyan appealed the revocation and his hearing is scheduled today.  The CSAC’s materials, which have now been released, shed light on the reason behind the revocation, namely an allegedly dishonest answer, made under penalty of perjury, to a question regarding ‘past criminal offences‘.

ET Licence Suspension Letter

Late last month Federal Judge Kimba Wood has released brief reasons for judgement denying Zuffa’s request for a preliminary injunction preventing New York from using their Combative Sport Law to shut down a planned UFC event at Madison Square Gardens.

Judge Wood promised ‘a longer opinion will follow’ and these full reasons have now been released.

In short the Court noted that by arranging an event at Madison Square Gardens the UFC did gain standing to challenge New York’s Combative Sports Law.  The Court sidestepped the request for a preliminary injunction, however, noting that no State Court has yet interpreted the potentially unconstitutionally vague New York law and until this was done the Federal Court did wished to avoid the “friction-generating error that can result when a federal court endeavors to construe a novel state act not yet reviewed by the state’s highest court

The full reasons denying the preliminary injunction were as follows –

Because Plaintiff’s likelihood of success on the merits depends upon the interpretation of an unclear New York state statute that no New York state court has ever construed, this Court abstains under Pullman. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).

“When anticipatory relief is sought in federal court against a state statute, respect for the place of the states in our federal system calls for close consideration of whether a ruling on the constitutionality of the state law is, in fact, necessary.” Expressions Hair Design v. Schneiderman, 808 F.3d 118, 137 (2d Cir. 2015) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 75 (1997). Pullman abstention is “[i]ntended to further the harmonious relation between state and federal courts” by allowing a federal court to abstain from deciding difficult and “unsettled questions of state law that are antecedent to federal constitutional questions.” Tunick v. Safir, 209 F.3d 67, 74 (2d. Cir. 2000) (internal citations and quotation marks omitted); see alsoVt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 384 (2d Cir. 2000). Once the federal court has abstained, “the parties may seek a controlling interpretation of the challenged law from the state courts, whose decision could cause the federal constitutional question to disappear altogether.” Expressions, 808 F.3d at 137.Pullman abstention thus allows a federal court to avoid both: (1) unnecessary or premature decisions on questions of federal constitutional law, and (2) potentially erroneous rulings with respect to state law. Id. (quoting Allstate Ins. Co. v. Serio, 261 F.3d 143, 150 (2d Cir. 2001)); Tunick, 209 F.3d at 74 (quoting Pullman, 312 U.S. at 498-99).

The Second Circuit has held that abstention under Pullman is appropriate when three necessary conditions are met: “(1) an unclear state statute is at issue; (2) resolution of the federal constitutional issue depends on the interpretation of the state law; and (3) the law is susceptible to an interpretation by a state court that would avoid or modify the constitutional issue.” Wang v. Pataki, 164 F. Supp. 2d 406, 410-11 (S.D.N.Y. 2001) (Sweet, J.) (quoting Greater N.Y. Metro. Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993)) (internal quotation marks omitted); see also Jacoby & Meyers, LLP v. Presiding Justices of First, Second, Third, and Fourth Departments, Appellative Div. of Supreme Court of New York, 847 F. Supp. 2d 590, 599 n.56 (S.D.N.Y. 2012) (Kaplan, J.); Winters v. Meyer, 442 F. Supp.2d 82, 88 (S.D.N.Y. 2006) (McMahon, J.). “Abstention is not appropriate . . . where the meaning of a state statute is clear on its face.” Tunick, 209 F.3d at 74 (citing Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1984)). Although a court may invoke Pullman abstention when the three conditions listed above are met, it is not required to do so. Abstention is not appropriate where “important federal rights .. . outweigh the interests underlying the Pullman doctrine.” Kachalsky v. Cacace, 817 F. Supp. 2d 235, 253 (S.D.N.Y. 2011) (Seibel, J.) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004)).

The three essential conditions for Pullman abstention are met in this case. First, the CSL is an unclear state law, susceptible to multiple, different interpretations. In particular, it is not clear what falls within the scope of the martial arts exception to the definition of a combative sport. The CSL reads in pertinent part: “`martial arts’ shall include any professional match or exhibition sanctioned by” one of twelve listed Exempt Organizations. N.Y. Unconsol. Law § 8905-a(1). Since the CSL has been in force, the NYSAC has assumed primary responsibility for interpreting the statute and has embraced widely varying interpretations, including:

(1) that the CSL permits any kind of martial arts event except MMA, including those not sanctioned by an Exempt Organization, (Mot. for Prelim. Inj., 15);

(2) that the CSL permits an Exempt Organization to sanction only events featuring the martial art found in its name (i.e. the U.S. Judo Organization could only sponsor judo) (Compl. ¶ 82); and

(3) that the CSL permits Exempt Organizations to sanction only “single-discipline” martial arts, even though in practice the NYSAC allowed events featuring Muay-Thai, jiu-jitsu, and kickboxing, all of which combine elements from different martial arts (Compl. ¶¶ 81, 91-94).

Furthermore, the OAG, the entity charged with enforcing the CSL’s criminal provisions, has previously stated that the CSL would permit an MMA event sanctioned by an Exempt Organization, only to reverse course and declare that the CSL prohibited any professional MMA event, even if sanctioned by an Exempt Organization. (Compl. ¶¶ 104-113).

This history of shifting interpretations of the CSL, coupled with erratic enforcement that has often contradicted the official interpretation of the law, amply demonstrates that the CSL is unclear on its face. The CSL has never been interpreted by any New York state court, see (Defs.’ Opp’n, 8), leaving this Court with no guidance as to the proper scope of the statute.

The second and third conditions of Pullman are also met. Plaintiff’s federal constitutional vagueness challenge depends on the interpretation of this state law, and the CSL is susceptible to interpretations that would resolve the statutory uncertainty and eliminate the federal constitutional issue. “A statute is unconstitutionally vague only if it cannot be construed in a way that eliminates the vagueness.” Expressions, 808 F.3d at 144 (citing Skilling v. United States, 561 U.S. 358, 403-04 (2010)). “[C]larity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute.” United States v. Lanier, 520 U.S. 259, 266 (1997). “Thus, in considering a vagueness challenge to a state statute, a federal court must consider not only how the law is presently drafted, but also how it has been construed by the state courts.” Expressions, 808 F.3d at 144 (quotingKolender, 461 U.S. 352, 358 (1983)) (internal quotation marks omitted).

Plaintiff has identified two possible readings of the CSL that could eliminate the alleged statutory vagueness, namely (1) that an Exempt Organization could sanction any kind of event, and (2) that an Exempt Organization could sanction any event of the kind found in that Exempt Organization’s name. (Mot. for Prelim. Inj., 17). Either of these constructions would likely provide the judicial gloss necessary to resolve any uncertainty in the text of the statute and provide “ordinary people fair notice of the conduct it punishes.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).[10]

Abstention under Pullman is particularly appropriate where, as here, the state law being interpreted governs issues that are traditionally a matter of state concern, such as health and safety. See Jancyn Mfg. Corp. v. Suffolk County, 583 F. Supp. 1364, 1371, 1376 (E.D.N.Y. 1984) (citing Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970)) (abstaining under Pullman when unclear state law involved matters of particular state concern); N.Y. State Rest. Ass’n v. New York City Bd. of Health, 556 F. 3d 114, 123 (2d Cir. 2009) (noting “the traditional primacy of state regulation in matters of health and safety”); Jones I, 888 F. Supp. 2d at 428-29 (finding that the CSL regulated the health and safety of combatants).

For these reasons, the Court concludes that it would be inappropriate to reach the merits of Plaintiff’s vagueness challenge to the CSL before any New York state court has had an opportunity to construe the challenged provision. See Hickerson v. City of New York, 932 F. Supp. 550, 556 (S.D.N.Y. 1996) (Cedarbaum, J.) (“A federal court should not be the first to construe these provisions. Abstention is warranted to give the New York courts an opportunity to construe the resolution, for the courts could interpret these phrases in such a way as to change or eliminate the vagueness claims.”); Expressions, 808 F.3d at 139 (“[W]e cannot hold a duly enacted state law unconstitutional based entirely on speculation that the New York courts might give it a[] . . . problematic reading that its text does not require.”); cf. Kachalsky, 817 F. Supp. 2d at 253 (“Where, as here, state courts have settled upon an interpretation of the statute at issue, Pullman abstention is not warranted.”).[11]

The Court further concludes that abstention is warranted because the federal interests at stake do not, in this instance, outweigh those interests that underlie thePullman doctrine. First, there will be no chilling effect on First Amendment rights caused by the decision to abstain, because this Court has previously determined that the CSL does not prevent Plaintiff from engaging in any conduct protected by the First Amendment. See Jones II, 974 F. Supp. 2d at 333-39 (holding that the CSL does not prohibit protected speech or expressive conduct); see also Expressions,808 F.3d at 141 (abstaining under Pullman where “there is a minimal risk that any First Amendment rights . . . will be compromised by our decision to abstain”). Second, as stated in Jones III, Plaintiff may still seek a declaratory judgment in state court to settle decisively the scope of the CSL. See N. Am. Airlines, Inc. v. Int’l Bhd. of Teamsters, AFL-CIO, No. 04-CV-9949, 2005 WL 926969, at *4 (S.D.N.Y. Apr. 19, 2005) (Karas, J.) (quoting Accident Fund v. Baerwaldt, 579 F. Supp. 724, 728 (W.D. Mich. 1984)) (“An important consideration, apparently overlooked by plaintiffs, is their freedom to seek injunctive relief in the state courts; a course of action clearly contemplated by the Pullman . . . doctrine[].”).[12]

In sum, because this Court wishes to avoid the “friction-generating error that can result when a federal court endeavors to construe a novel state act not yet reviewed by the state’s highest court,” Expressions, 808 F.3d at 137, and because this Court believes that a state court determination of the meaning of the CSL will resolve or modify the federal constitutional issue, this Court abstains.

screenshot headgear

Martial Arts enthusiast, Physicist and author Jason Thalken has recently obtained a patent for a headgear design that he hopes can reduce head trauma and the incidence of Chronic Traumatic Encephalopathy in contact sports.

In en effort to bring attention to this patent Thalken has published the full text of his patent to Researchgate and is available here.

Headgrear for Reducing Head Trauma Patent Material

Thalken Tweets

I won’t pretend to have a physics or engineering background capable of dissecting the potential efficacy of this product but if other physicists agree that Thalken’s designs hold potential the combat sports and contact sports world should help him secure the funding he needs to get this product off the ground.

 

In the latest UFC pay per view event piracy prosecution, reasons for judgement were released this week by the US District Court, E.D. California, recommending $10,000 in statutory damages following the commercial piracy of UFC 162.

In the recent case (Joe Hand Promotions Inc. v. Forsberg) the Defendant displayed UFC 162, (Anderson Silva v Chris Weidman) at a pub without paying the commercial sub licencing fee which would have been $750.

Investigators noted that the Defendant charged patrons a $10 cover and that there were 56 patrons present which exceeded the establishments capacity.

The Plaintiff asked for maximum statutory damages of $110,000 but the Court noted this was excessive with an award of $10,000 reaching the appropriate balance of compensation and deterrence.  In reaching this figure District Judge Edmund Brennan noted as follows –

Here, plaintiff seeks a judgment in the amount of $110,750. ECF No. 20-2 at 2. Plaintiff’s application for default judgment and proposed order indicate that this sum consists of $110,000 for a violation of 47 U.S.C. § 605(e)(3)(B)(iii) and (e)(3)(C)(ii), and $750 as compensatory damages arising from defendant’s alleged act of conversion. Id.

Plaintiff’s investigator’s affidavit provides the Rooster Juice Grill and Sports Bar’s capacity is approximately 50, and that there were around 56 patrons at the establishment on the night in question. ECF No. 20-3 at 2-3. The affidavit further states that the establishment was unlawfully broadcasting the Program on five televisions. Id. at 2. Although plaintiff’s investigator was charged a $10 fee to enter the establishment, there is no evidence that defendants prepared any special advertising for the broadcast of the Program, that the establishment had increased business as a result of the broadcast, or that defendants are repeat offender with respect to intercepting transmissions of the type at issue here. Balancing these facts with the widespread problem of piracy and the need for an award sufficient to deter future piracy, the court recommends an award of statutory damages in the amount of $10,000. On the record before the court, the court does not find that this case merits an award of enhanced damages.

 

An important study was recently published in the open access journal, PLOS ONE, analyzing the relationship between the severity of traumatic brain injury and anabolic steroid use.

In the Study, titled “Chronic Exposure to Androgenic-Anabolic Steroids Exacerbates Axonal Injury and Microgliosis in the CHIMERA Mouse Model of Repetitive Concussion” the authors noted that in about 20% of known Chronic Traumatic Encephalopathy (CTE) cases the subjects had a history of substance use including androgenic-anabolic steroids.

The authors questioned whether there was a connection between anabolic steroid use and severity of brain injury and conducted a study involving mice.  Some of the mice received a cocktail of three anabolic steroids (testosterone, nandrolone and 17α-methyltestosterone) and were later exposed to two incidents causing traumatic brain injury.

The mice exposed to steroids exhibited significantly exacerbated axonal injury and microgliosis leading the authors to conclude that anabolic steroid use “can alter neuronal and innate immune responses to concussive TBI

The full study is available by subscription and the abstract can be found here and is reproduced below –

Abstract

Concussion is a serious health concern. Concussion in athletes is of particular interest with respect to the relationship of concussion exposure to risk of chronic traumatic encephalopathy (CTE), a neurodegenerative condition associated with altered cognitive and psychiatric functions and profound tauopathy. However, much remains to be learned about factors other than cumulative exposure that could influence concussion pathogenesis. Approximately 20% of CTE cases report a history of substance use including androgenic-anabolic steroids (AAS). How acute, chronic, or historical AAS use may affect the vulnerability of the brain to concussion is unknown. We therefore tested whether antecedent AAS exposure in young, male C57Bl/6 mice affects acute behavioral and neuropathological responses to mild traumatic brain injury (TBI) induced with the CHIMERA (Closed Head Impact Model of Engineered Rotational Acceleration) platform. Male C57Bl/6 mice received either vehicle or a cocktail of three AAS (testosterone, nandrolone and 17α-methyltestosterone) from 8–16 weeks of age. At the end of the 7th week of treatment, mice underwent two closed-head TBI or sham procedures spaced 24 h apart using CHIMERA. Post-repetitive TBI (rTBI) behavior was assessed for 7 d followed by tissue collection. AAS treatment induced the expected physiological changes including increased body weight, testicular atrophy, aggression and downregulation of brain 5-HT1B receptor expression. rTBI induced behavioral deficits, widespread axonal injury and white matter microgliosis. While AAS treatment did not worsen post-rTBI behavioral changes, AAS-treated mice exhibited significantly exacerbated axonal injury and microgliosis, indicating that AAS exposure can alter neuronal and innate immune responses to concussive TBI.

Update – This article has been republished at MixedMartialArts.com where a forum member helpfully points to this 2013 study which concludes that long-term high-dose anabolic-androgenic steroids exposure may cause cognitive deficits, notably in visuospatial memory even without exposure to head trauma.

As first reported by Fightland, Federal Judge Kimba Wood has released reasons for judgement denying Zuffa’s request for a preliminary injunction preventing New York from using their Combative Sport Law to shut down a planned UFC event at Madison Square Gardens.

Zuffa argued that a preliminary injunction was needed because the case will likely succeed at trial, there will be irreparable harm (either by having the event shut down or the looming threat of criminal charges if the event proceeds) without a preliminary injunction and lastly that an injunction is in the public interest.

The Court declined the request for a preliminary injunction finding a Pullman abstention was appropriate.

Fightland obtained the below copy of Judge Wood’s reasons:

Screenshot Judge Wood Reasons