Zuffa is attempting to delay their obligations for discovery in the UFC Anti Trust Lawsuits until after their motion to dismiss the claims is heard.  Reasons for judgement were released this week by Magistrate Judge Peggy Leen scheduling July 28th as the hearing date for this motion with the Court noting as follows –

PEGGY A. LEEN, Magistrate Judge.

WHEREAS, the Court set the hearing date on Zuffa, LLC’s Motion to Stay Discovery (Doc. #103) for July 21, 2015 at 10:00 a.m.;

WHEREAS, counsel representing Zuffa, LLC (“Zuffa”) has a conflict on July 21, 2015;

WHEREAS, the parties met, conferred and agreed that July 28, 2015 was a suitable alternative date on which to have the Motion heard;

WHEREAS, Zuffa’s counsel has confirmed with the Court’s staff that July 28 is an acceptable date to the Court.

NOW, THEREFORE, IT IS HEREBY STIPULATED by and between the parties, through their respective counsel of record, that the July 21, 2015 hearing date on Zuffa’s Motion to Stay Discovery shall be continued to July 28, 2015 at 10:00 a.m.

Earlier this week the Plaintiff’s filed their opposition to Zuffa’s motion.  Zuffa has until July 14 to file their reply.

Jason Cruz at MMAPayout obtained a copy of the Plaintiff’s opposition to Zuffa’s motion which can be found here.

The UFC was quick to put rumours to rest that the heavily marketed featherweight championship bout between Jose Aldo and Conor McGregor was at risk after word came out that Aldo may have suffered a broken rib while training.

The UFC assured the public that they had “received official medical confirmation from several doctors that Aldo did not suffer a broken rib“.  How were these doctors so sure?  They reviewed scans, of course, with the UFC statement noting that “Following a review of the scans, it has been determined that the champion suffered a bone bruise to his rib and cartilage injury during training,

Aldo in turn responded releasing the below images publicly.

Jose Aldo Rib Fracture Images

MMAJunkie contributor and orthopedic surgeon Dr. Johhny Benjamin reviewed these images and noted they indeed depict a broken rib and fighting with such a fracture can lead to “potentially life-threatening complication”.

Now could any properly trained doctor misinterpret these images as revealing a mere bone bruise?  Doctor Benjamin answers as follows –

Doctor Benhamin Tweet Re Aldo Fracture

Doctors giving clearance to combat athletes to fight bear a heavy burden.  MMA, according to Zuffa contracts, is an “inherently and abnormally dangerous activity”.  Any physician clearing an athlete to fight must do so with utmost integrity.

You need look no further than to the proposed NFL concussion settlement to understand the integral role doctors can play in the sports industry.  While the lawsuit merits were never tested in court, they were fueled by allegations of doctors fraudulently undermining the real injuries and risk of injuries to athletes.  These allegations breathed new life into otherwise time barred claims and exposed the NFL to enough risk they were willing to throw hundred of millions towards settlement instead of having their business practices scrutinized in trial.

I should note it is not clear who the doctors are that told the UFC Aldo only had a ‘bone bruise to his rib‘ nor is it clear what ‘scans’ these doctors reviewed.  Perhaps they reviewed different films.  Perhaps they have a justifiable difference of opinion from Dr. Benjamin.  If its the above images, however, and if Doctor Benjamin’s interpretation is correct, questions need to be asked for the sake of fighter safety.

Zuffa is aware that the fight business brings risk of potential brain injury litigation.  You can click here for insight from a lawyer from the firm which helped Zuffa in their lobbying efforts to legalize MMA in Canada discuss these risks and note the importance that fraud allegations played in the NFL suit.  The UFC would be wise to utilize practices which would not open the door for similar allegations to be made against them.

This week the California State Athletic Commission handed out a three year suspension to Alexander Shlemenko who tested positive for prohibited PED’s following his last Bellator bout.

This is no doubt evidence of a changing of the guard in terms of how regulators are going to deal with drug cheats. Penalties will become increasingly heavy handed and that is a good thing.  There are lessons to be learned, however, from this affair and these are not limited to athletes.  Regulators need to understand that, given the serious consequences suspensions have on a fighter’s livelihood, integrity in the testing process must be in place and due process during regulatory hearings is imperative.  Here the California State Athletic Commission fell short on both counts.

The Shlemenko hearing, which begins at just past the one hour twenty minute mark of the below video is worth reviewing.  The commission all but mocks Shlemenko for choosing to be represented by a lawyer and even make comments that demonstrate fettered discretion with minds appearing to be made up prior to full submissions being digested.  The proposed penalties against Shlemenko were apparently far more lenient initially only turning more punitive in the days prior to the requested hearing.  The testing process leaves much to be desired as well with the evidence establishing that the CSAC did not collect a B sample despite their contract with the testing facility requiring this to be conducted.  Whether or not collection of a B sample is required under the California regulatory scheme, a question a Court will likely ultimately answer as Shlemenko has indicated he is seeking to judicially review the ban, it is clear that the CSAC has no set objective standards in place outlining the required steps needed for drug sample collection and testing.

Regulators should have a clear legislative framework for the PED tests they are allowed to conduct, a clear set of penalties for those who fail them, firm standards in place for the integrity of the collection and testing process and lastly respect for due process rights of athletes who hold the State to their statutory burden of proof.

The California State Athletic Commission has been one of the more vocal regulators about the dangers of Rapid Extreme Weight Cuts in combative sports.  They continue to take action with the AC’s Executive Officer, Andy Foster, recently being grated permission to purchase a Body Composition Analyzer to use at weigh ins.

In a meeting held earlier this year, Foster voiced concern to the commission about the link between dehydration and traumatic brain injury noting that “dehydration is a problem right in front of us and we see it all the time“.  In addition to warning athletes of these risks, Foster sought, and was granted permission, to purchase a Body Composition Analyzer and also a portable brain scanner which could help detect hematomas.  A budget of $20,000 was approved to purchase these items.   Here are the minutes of the discussion –

CSAC Minutes re Rapid Extreme Weight Cuts 1

CSAC Minutes re Rapid Extreme Weight Cuts 2

With the recent creation of the Saskatchewan Athletics Commission and with the Province set to host their first UFC event in August, 2015 the SAC has now finalized their professional MMA Rules.

I have obtained a copy and you can access these here –Saskathewan Pro MMA Rules

The rules largely mirror the so-called unified rules of MMA with few changes.  Some of the highlights are as follows –

  • The conventional weight classes are used from Flyweight to Super Heavyweight
  • Weigh ins must take place 24-30 hours pre event
  • The one pound weight allowance for non title matches is in force
  • Flyweight ad Bantamweight fighters cannot have a difference of more than three pounds between contestants
  • Featherweight, Lightweight and Welterweight fighters  cannot have a difference of more than five pounds between contestants
  • Remaining weight classes cannot have a difference of more than 7 pounds between contestants (but the commission has the discretion to deviate from this restriction)
  • a one hour grace period is in place for fighters who fail to make weight on their first attempts
  • The commission does have the discretion to allow catch weight events
  • One day elimination tournaments are prohibited
  • A minimum 14 day suspension is in place for all contestants and for those who fight a 4th or 5th round this is increased to 21 days
  • Events can take place in a ring or cage
  • Rounds must be between 3-5 minutes in length
  • The 10 point must system is adopted
  • The WADA Prohibited list is adopted with the AC having drug testing abilities and the language appears broad enough to allow both in and out of competition testing

The one night elimination tournament is at the foundation of the history of modern mixed martial arts but the format has all but disappeared since the early days of the sport.

Today, Bellator MMA announced plans to host a one night 4 man elimination tournament in California.  Is that even legal in the State?  The short answer is yes.

While many states do not have a framework in place to allow one night tournaments given mandatory medical suspensions imposed by statute (you can click here to read about the questionable framework in place in Oklahoma who approved such a tournament last year), and with the ABC Medical Committee taking an express stance against such competitions, one night tournaments are indeed a rare occurrence.  California, however, has a specific statutory framework in place which allows such tournaments.

Here is the breakdown –

The California State Athletic Commission enjoys jurisdiction over “all professional and amateur…forms  and combinations of forms of full contact marital arts contests, including mixed martial arts“.

California’s Regulations specifically allow elimination tournaments in MMA with s. 503 of the Regulations reading as follows:

§ 503. Tournament or Elimination Format Contests – Selection of Opponents.

In any tournament or elimination format contest, the commission shall determine the initial opponents in the first round of the tournament by drawing names at the weigh-in.

Lastly, while California, like most other States, calls for mandatory suspensions after competition, they carved out an exception to this rule for tournaments with Section 515 of the Regulations stating as follows:

§ 515. Time Between Bouts.

Unless written approval is obtained from the commission, a fighter who has competed in a bout or tournament format event anywhere in the world shall not be allowed to compete in this state until seven days have elapsed from the date of that bout or event. This limitation shall not be construed to prohibit a fighter from competing in a tournament format event that requires the fighter to rest a minimum of 30 minutes between bouts. In a tournament format event, a fighter shall be examined by a physician before each bout.

With the passage of enough time everything old is new again!

Today the USADA has released the nuts and bolts of the UFC Anti-Doping Policy publishing the following documents –

UFC-anti-doping-policy

UFC-arbitration-rules

UFC-tue-policy

UFC-whereabouts-policy

While this policy can and should be applauded as the most comprehensive private solution in the professional combat sports industry in relation to doping, there are a few significant loopholes that appear to exist.

1. The Retirement Loophole

The Anti-Doping Policy allows the USADA to test UFC Fighters, any place, any time anywhere.  That is unless they declare that they are retired.  Specifically the policy says that thr USADA can test athletes until “such time as they give notice to UFC in writing of their retirement from competition“.

Those who follow the sport know retirement is a flexible state.  UFC contracts survive retirement and simply cease in operation until a fighter ‘un-retires’ at which stage contractual obligations pick up where they left off.  This appears to be a fairly glaring shortfall.

Section 5.7.1 of the policy goes on to state that “An Athlete who gives notice of retirement to UFC, or has otherwise ceased to have a contractual relationship with UFC, may not resume competing in UFC bouts until he/she has given UFC written notice of his.her intent to resume competing and has made him/herself available for Testing for a period of four months before returning to competition.  UFC may grant an exemption to the four-month written notice rule in exceptional circumstances or where the strict application of that rule would be manifestly unfair to an Athlete“.

2.  The Whereabouts Loophole 

If a fighter is doping and does not want to be caught the policy appears to let them dodge two tests a year before repercussions.  If USADA can prove intentional evasion occurred then that is violation of a policy in and of itself.  However, the policy allows for two ‘whereabouts failures’ before the policy is violated.

Specifically s. 2.4 provides that it is an anti-doping violation where “any combination of three Whereabouts Failures within a twelve-month period as defined in the Whereabouts Policy developed by the UFC“.

Whereabouts Failures are defined as follows “The failure by any Athlete to comply with the UFC Whereabouts Policy by failing to timely, accurately and completely provide required whereabouts information and/or for being unavailable for Testing due to inaccurate information provided on the Whereabouts Filing“.

3.  The “Tainted Supplements” Loophole

The Policy comes with steep consequences for those who violate its terms.  However, these are not set in stone.  The Policy allows fighters to try the “tainted supplements” excuse that comes so often after a positive doping test.  Specifically section 10.5.1.1 of the policy states that “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…

The fighters need not prove tainted supplements resulted in the positive test beyond a reasonable doubt, rather they are only subject to a ‘balance of probabilities’ test with s. 3.1 stating that “Where this Anti Doping Policy places the burden of proof upon the Athlete or other Person alleged to have committed an Anti-Doping Policy Violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability”.

Consideration should be given to tighten up these exceptions, that said, this policy continues to be a big step in the right direction in tackling issues with doping in combative sports.

Joe Ferraro Podcast Photo

He’s back!  After a brief hiatus “Showdown” Joe Ferraro has relaunched his podcast.  Today I had the pleasure of appearing on Joe’s revamped show along with UFC commentator Jon Anik discussing some of the latest legal topics in combat sports.   You can listen to the full episode here.

I’d like to thank Joe for having me as a guest once again.  If you are visiting here for the first time after listening welcome!  If you are looking for more information on the topics we covered here are some quick links to articles addressing these in more detail:

Update June 14, 2015Jason Cruz reports the cases have now been consolidated in Nevada with Judge Richard Boulware taking conduct.  You can click here for background information on Judge Boulware.

_____________________________________

With the various anti-trust lawsuits against Zuffa being transferred from California to Nevada earlier this month comes some expected administrative disarray.  In California the cases were consolidated and all before one Judge, in Nevada the cases were transferred to three separate judges. There are further motions to consolidate the cases before the Court.  Earlier this week Magistrate Judge Nancy Coppe, who was given conduct of the Kyle Kingsbury lawsuit, dismissed Zuffa’s motion to put off their discovery obligations.

Judge Coppe provided the following reasons:

On June 4, 2015, this case was transferred from the Northern District of California. Docket No. 35. Before the transfer, Defendant filed a motion to stay discovery pending resolution of its motion to dismiss. Docket No. 29. That motion to stay is hereby DENIED...”

Not much should be read into this development as the motion was denied without prejudice with the Court allowing Zuffa to refile their motion by June 12 if they wish to renew it with directions that any such motion must “address the case law from this District regarding requests to stay discovery pending resolution of a dispositive motion.”.

If Zuffa does not proceed with a new motion Judge Coppe ordered that the parties submit a proposed discovery plan no later than June 19, 2015.

Update June 10, 2015 – Jim Genia has tweeted the following update announcing that the Senate has accepted the revamped Bill leaving it in the hands of the NY State Assembly –

Jim Genia Tweet

___________________________________________

As the New York State Assembly struggles to gather the needed votes to pass proposed legislation to legalize professional MMA, the Bill has been overhauled with a view to obtain the needed support.  The current text of Bill A02604 can be found here. MMA journalist Jim Genia, who has provided coverage of these legislative developments that are second to none, has provided the following summary of the revamped Bill –

  • Amateur MMA is permitted, and will be sanctioned by the Athletic Commission or by third-party organizations approved by the Commission. There will be no more unsanctioned events allowed;
  • The Commission will have jurisdiction over all combative sports, including professional wrestling, martial arts and kickboxing. The list of organizations approved for sanctioning of martial arts events is gone, and the Commission will lay out criteria for third-party organizations to get approval to operate within the state;
  • These third-party organizations may have the power to sanction pro combative sports, including MMA events;
  • The Commission will have jurisdiction (and licensing ability) over gyms that provide sparring in preparation for pro boxing or pro MMA bouts;
  • Accident insurance for a minimum of $50,000 is required by all pro combative sports promoters, with a million dollar insurance minimum for competition injuries resulting in major brain injuries; and,
  • All combative sporting events, pro or amateur, will pay an 8.5% tax on gate and a 3% tax on broadcasting rights sold (this includes Internet broadcasts)

I’ve had an opportunity to review the legislation in full and, in addition to the above highlights, there are two other noteworthy points –

  • Not only are gyms regulated, but the legislation sets our a host of requirements for these.  All training facilities ‘providing contact sparring maintained either exclusively or in part for the use of professional combative sports participants‘ will need to meet the following criteria –
 
     AT A MINIMUM, ANY SUCH REGULATION SHALL REQUIRE:
       (I) FIRST AID MATERIALS TO BE STORED IN AN ACCESSIBLE LOCATION ON  THE
     PREMISES  AND  FOR  THE PRESENCE ON THE PREMISES OF A PERSON TRAINED AND
     CERTIFIED IN THE USE OF SUCH MATERIALS AND PROCEDURES FOR  CARDIO-PULMO-
     NARY  RESUSCITATION  AT  ALL TIMES DURING WHICH THE FACILITY IS OPEN FOR
     TRAINING PURPOSES;
       (II) CLEAN AND SANITARY BATHROOMS, SHOWER ROOMS, AND LOCKER ROOMS;
       (III) ADEQUATE VENTILATION AND LIGHTING OF  ACCESSIBLE  AREAS  OF  THE
     TRAINING FACILITY;
       (IV)  ESTABLISHMENT  OF A POLICY CONCERNING THE RESTRICTION OF SMOKING
     IN TRAINING AREAS, INCLUDING  PROVISIONS  FOR  ITS  ENFORCEMENT  BY  THE
     FACILITY OPERATOR;
       (V) COMPLIANCE WITH STATE AND LOCAL FIRE ORDINANCES;
       (VI)  INSPECTION AND APPROVAL OF SURFACES ON WHICH TRAINING FOR COMBA-
     TIVE SPORTS WILL BE HELD; AND
       (VII) ESTABLISHMENT OF A POLICY FOR  POSTING  ALL  COMMISSION  LICENSE
     SUSPENSIONS AND LICENSE REVOCATIONS RECEIVED FROM THE COMMISSION INCLUD-
     ING  PROVISIONS  FOR  ENFORCEMENT OF SUCH SUSPENSIONS AND REVOCATIONS BY
     THE FACILITY OPERATOR.
       (B) A PROSPECTIVE ENTITY LICENSEE SHALL SUBMIT TO THE COMMISSION PROOF
     THAT IT CAN FURNISH SUITABLE FACILITIES IN WHICH THE TRAINING IS  TO  BE
     CONDUCTED,  INCLUDING  THE  MAKING OF SUCH TRAINING FACILITIES AVAILABLE
     FOR INSPECTION BY THE COMMISSION AT ANY TIME DURING WHICH TRAINING IS IN
   45  PROGRESS.
  • The legislation also mandates that the State conduct a study aimed and arriving at options for providing ‘medical and rehabilitative care’  for combative sport participants that sustain ‘repetitive head injuries’ in their career with the relevant section of the Bill reading as follows:
The department of state, with the assistance of the state athlet-
      ic  commission, medical advisory board, departments of health and finan-
      cial services, state insurance fund, division of budget and  such  other
      state  entities as appropriate, shall carefully consider potential mech-
      anisms to provide  financial  resources  for  the  payment  of  expenses
     related  to  medical  and rehabilitative care for professionals licensed
     under article forty-one of  the  general  business  law  who  experience
     debilitating  brain  injuries  associated  with repetitive head injuries
     sustained through their participation in combative sports.  The  depart-
     ment  of  state may consult and contract with third parties for services
     in the course of this review. The department of state shall  report  its
     findings and recommendations to the governor, temporary president of the
     senate  and speaker of the assembly within eighteen months of the effec-
     tive date of this section.