With the UFC’s first ever event in Nova Scotia comes enhanced media attention with all its ups and downs.

My narrow niche deals with addressing legalities in MMA regulation and to put it mildly, this event is a legal mess.  In short, the event must be regulated using traditional boxing rules, and if that is not enough, each fighter must sign a contract stating they will not lose by a low-blow because they will each use “a foul proof guard…sufficient to withstand any so-called low blow” so in other words, fire away!

Here’s the breakdown:

Professional MMA is regulated in Nova Sotia by the Nova Scotia Boxing Authority.  The Authority was created by the Boxing Authority Act.  While the name indicates this body can only oversee boxing the Nova Scotia Boxing Authority Regulations goes on to define all ‘combat sports‘ as boxing.

The problem, however, is that the regulations fail to create a different rule set for different combat sports.  It does not matter if you are fighting MMA, Karate, Jiu Jitsu or Kickboxing, all of these are called ‘boxing’ and, if you want to follow the actual law, you must follow the official regulations.  So, for the upcoming UFC Fight Night to comply with Nova Scotia’s actual laws here are some of the fun rules they need to follow

- Regulation 53 – The infamous ‘low blow’ contract needs to be signed by both boxer and promoter, which reads “It is expressly understood that this boxing atch is not to be terminated by a low blow, as any foul-proof guard selected by the Boxer is, in the Boxer’s opinion, sufficient protection to withstand any so-called low blow that might otherwise incapacitate the Boxer”  If the contact is not enough they put it right in regulation 146 that “No boxing match shall be terminated by a low blow, as the protectors that are used by boxers are sufficient protection to withstand any low blow that might otherwise incapacitate either of the boxers.“.

- Regulation 78 – Three minute rounds are mandatory for male boxers with 2 minute rounds for females.  Bouts must be either 4, 6, 8, or 10 rounds in duration.

- Regulation 84 – The bout must take place in a ring (Pride never die!)

-  Regulation 85 – 8 oz gloves are mandatory except in weight classes above 154 lbs which require 10 oz gloves.

- Regulation 117 – 10 counts are required for downed boxers

- Regulation 130 – Boxers must wear custom made chest protectors

- Regulation 148 and 149 – have a host of fouls incomptible with MMA which include

  • hitting an opponent who is down
  • using a knee against the opponet
  • holding an opponent
  • deliberately maintaiiig a clinch
  • hitting with the butt of the hand, wrist or elbow
  • backhand blows
  • wrestling or roughing at the ropes

So will these Regulations be followed for UFC Fight Night?  Of course not.  They will be ignored and something similar to the Unified Rules will, I expect, be used.  There is of course no legal authority to do this without formal amendment to the Regulations, however, as has been demonstrated occasionally in the Canadian MMA scene, it is far easier for the government to turn a blind eye to the actual law then make all the amendments needed to properly regulate the sport.

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I have written the following e-mail to Hubert Earle, the current Director of Combat Sports at the Nova Scotia Boxing Authority.  I will update this article once I have Mr. Earle’s reply -

First let me congratulate your Province for hosting your first UFC event, I hope it is a success.

I am a lawyer who tracks combat sports regulatory matters and have a few questions about the upcoming Halifax card.  As I read the NS Boxing Authority Act and Regulations I don’t see the legal framework for using the unified rules or anything similar to these.

I write to inquire which rules will be used for the upcoming event and to request a copy of these.  I would also like to know if there have been any formal amendments to the Boxing Authority Act or Regulations or any other legal enactment allowing these rules to be used.

I look forward to your reply

I won’t repeat the arguments as to why the Nevada State Athletic Commission has overstepped their bounds by imposing or threatening to impose penalties against Wanderlei Silva for ducking a drug test and Chael Sonnen for competing in a grappling contest while under a suspension from ‘fighting’, but in addition to these issues a further example highlighting the NSAC’s lack of understanding of the laws under which they operate became apparent during their latest round of disciplinary hearings.

While deliberating the penalty for Jon Jones due to his face-off scuffle with Daniel Cormier, the Commission determined a $50,000 fine was appropriate and suggested the money go directly to them for drug testing programs or directly to a charity of the commissions choosing.

The discussion takes place at approximately the one hour 17 minute mark of the hearing which is available on Fightpass where Commissioner Marnell states “instead of sending the money through us to the general fund to be used by some other government entity I would much rather see the money go into the community where, so, in my mind I can get very soft hearted about all the positives of all of this.  And it doesn’t have to get paid until the next fight he fights in the State of Nevada where we would take it out of the cheque so it doesn’t burden his immediate cashflow“.

The commissions clerk quickly shoots this idea down telling the commission “Commissioner Marnell, at this point any fine has to go into the general fund…and if its something that this Commission wants to see the legislature change they can go before the legislature and say that they would like a certain percentage of the fine to actually go to...” at which time the Commission cuts the clerk off and suggests they can find a way around this to which the clerk again responds “at this point any fine must go directly to the general fund“.

Instead of shooting from the hip and regulating the sport at their whim, the Commission would do well to heed the advice of their own Clerk and understand the limits of their authority.  If there are gaps that need to be addressed they can petition the legislature for appropriate changes.  It appears they may not be prepared to accept these limits and a judicial showdown stemming from the Silva matter appears to be in the Commission’s imminent future.

 

 

Today the Nevada State Athletic Commission set their precedent for fines involving licensed combatants involved in pre-fight brawls during promotional events.

Following Jon Jones and Daniel Cormier’s encounter at a promotional event for a bout scheduled in Nevada, the NSAC issued each of them a fine consisting of 10% of their reported ‘show’ purses coming in at $9,000 for Cormier and $50,000 for Jones.  Additionally Jones was ordered to complete 40 hours of community service and Cormier was ordered to complete 20 hours.

The reasons for the fewer hours for Cormier were based on a finding that Jones was the aggressor for the incident.  Cormier plead self defense but this was rejected by the Commission with the NSAC finding that after Jones placed his forehead on Cormier’s the appropriate response was stepping back instead of shoving Jones.

 

 

Few properties ares subject to more aggressive piracy prosecution that UFC’s Pay Per View products.  Reasons for judgement were released this month by the United States District Court, D. Colorado significantly restricting the timelines for these lawsuits in that jurisdiction.

In the recent case (Joe Hand Promotions, Inc. v. CJ’s Sports Bar, LLC)  the Plaintiff sued the Defendant alleging they showed UFC 134 in a commercial establishment without authorization.  They sued alleging the tort of conversion and also under federal statues prohibiting cable and satellite signal theft (the federal claims being the most heavy handed claims used in UFC piracy lawsuits).

The Court found that the federal claims were brought too late.  In short the federal statutes allowing these lawsuits to proceed do not have a limitation period and the Court had to determine the applicable period.   The general rule in such situations is for the Federal Court to look to the most analogous State statute in the jurisdiction of the lawsuit and borrow its limitation period.  Here the Court looked to the Colorado Cable Piracy Act and borrowed its one year limitation period and dismissed these claims.  The Court allowed the “novel” tort conversion claim to proceed and remanded it the State’s district Court.  In limiting the federal claims to a one year limitation period the Court provided the following reasons:

the Court finds that plaintiff’s federal claims are subject to a one-year statute of limitations.  The parties do not dispute that plaintiff’s federal claims accrued on August 27, 2011, when defendants allegedly aired the protected programming. Docket No. 5 at 11; Docket No. 8 at 7. Plaintiff filed this case on August 16, 2013. Docket No. 1-1 at 3. As plaintiff filed this case more than one year after its federal claims accrued, its federal claims are time barred.

______________________

Addendum September 30, 2014 – Reasons were released in a similar prosecution earlier this month in Illinois going through the same exercise (Joe Hand Promotions v. Mooney’s Pub) finding that in that state, the Illinois Cable Piracy Act was the most analogous State Statute which was subject to a 5 year limitation period and adopted this.

 

I have it on good authority that Manitoba is close to exercising their rights under section 83 of the Criminal Code to legalize a variety of amateur combative sports.

Manitoba will apparently pass an Order in Council in the upcoming weeks.  The OIC will designate a variety of traditional amateur marital arts as legal.  These will initially  be limited to striking arts such as Karate.

The Government plans on handing the regulatory reigns to oversight of these sports to various Provincial Sports Organizations.

Amateur MMA and Kickboxing will apparently be excluded from the OIC (meaning they will remain illegal for the time being) as these sports lack a PSO in the Province.

The Province is apparently open minded to legalizing both amateur MMA and Kickboxing, however, they do not wish to be the regulator and the legalization of these sports will be put on hold until the community develops a recognized PSO for these sports which can gain the confidence of the Government.

Once the Order in Council is passed I will update this article and publish the OIC.

Vernon BC Bans Professional MMA

Posted: September 9, 2014 in Uncategorized

Over the past several months the City of Vernon, BC had debated banning Mixed Martial Arts.  Today the City followed through with their plans and passed Bylaw 5505-2014 which prohibits professional MMA events in the City.

Below is the Bylaw in full which is the first of its kind in the Province banning the sport following the Provincial government legalizing it via a Province wide athletic commission:

BYLAW NUMBER 5505
A bylaw to regulate and prohibit mixed martial arts

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 ofVernon 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.
(c) No person may obstruct a bylaw enforcement officer or peace officer in the
fulfillment of their duties.
(d) This bylaw may be enforced by means of a municipal ticket or bylaw notice in
the forms prescribed for those purposes in the Community Charter and Bylaw
Notice Enforcement Act. Designated offences, bylaw enforcement officers, fines,
fine reductions or surcharges are as set out within the City’s current Municipal
Ticket Information Bylaw and Bylaw Notice Enforcement Bylaw.

(e) Every person who:

i. contravenes any of the provisions of this Bylaw; or
ii. causes or permits or allows any act or thing to be done in contravention or
violation of any of the provisions of this Bylaw; or
iii. neglects or refrains from doing anything required to be done by any of the
provisions of this Bylaw,
is guilty of an offence and upon conviction shall be liable to a fine and penalty of
not less than Five Hundred Dollars ($500.00) and not more than Ten Thousand
Dollars ($10,000.00), and to the cost of prosecution, and to imprisonment for a
term not more than 6 months. Each day such offence continues is deemed to
constitute a separate offence and separate fines, each not exceeding the
maximum fine for that offence, may be imposed for each day or part thereof in
respect of which the offence occurs or continues.
(f) In addition to penalties set out in section 3, a court may also make orders in
accordance with section 263.1 of the Community Charter, as amended.
(g) Nothing in this bylaw limits the City from utilizing any other remedy that would
otherwise be available to the City at law, including remedies available through
prosecution or civil remedies, including injunction.

Severability
8. If a portion of this bylaw is held invalid by a Court of competent jurisdiction, then
the invalid portion must be severed and the remainder of this bylaw is deemed to
have been adopted without the severed section, subsequent, paragraph,
subparagraph, clause or phrase.

Following UFC 177, an event which had headliner Renan Barao yanked from his title bout following a difficult weight cut, UFC President Dana White was asked whether this is a sign that the UFC can or should do anything to get involved in this process” referring to rapid extreme weight loss (“REWL”) practices which are the norm in MMA, to which White responded “Nobody’s ever been hurt from it, I mean, there’s only so much we can do“.

This reminds me of Senator Moynihan’s famous quoteEveryone is entitled to his own opinion, but not to his own facts.”

The truth is athletes have been hurt as a result of rapid extreme weight cutting practices.  A few examples include -

Renan Barao is the latest addition to this list.  I have shared this list on mixedmartialarts.com where Dr. Rahjai added the following helpful comments:

…weight cutting is very difficult on the body as you are messing around with electrolytes and fluid balances which are against the natural homeostasis of the body.
Low Calcium, magnesium, and especially potassium can result in cardiac conduction abnormalities which can potentially lead to cardiac arrest if severe enough.  Also the strain it puts on the kidneys is tremendous.   That’s just the more likely causes of death not listing the other potential causes!  Dangerous comment to make suggesting it’s normal for people to lose 20+ lbs at a time

Despite Dana’s quote,in reality the UFC is well aware that harm does come from REWL practices.   For proof you simply need to fast forward a mere twenty minutes in time from the post event press conference to the subsequent media scrum.  Here White acknowledges the harm suffered by Barao noting as follows “When they come in we weigh all of them so we have a good idea where everybody is and know where they are.  What happened this time, and don’t quote me on this…is he got to (138 pounds) and that was it, his body shut down and wasn’t cutting any more weight…He was 138 when he feinted and it wasn’t even a feint, what happened is once you deplete all the electrolytes in your body you basically become paralyzed.  That’s what happens.  You become paralyzed and you can’t move any of your limbs.  They had to come and call 911.

White goes on to suggest that athletes alone have the responsibility to make weight.  While it is true that professional athletes do bear responsibility for their actions promoters cannot turn a blind eye to dangerous practices that take place under their nose.  The UFC knows exactly how much their fighters weigh when they arrive at their fight location the week prior to a bout.  In turn this means the UFC knows exactly how much weight their athletes are going to attempt to lose and as illustrated by the above examples these cuts are not always made safely.

Just as the NCAA fashioned safety measures following deaths from REWL practices in the 1990’s, promotions such as the UFC along with State and Provincial Athletic Commissions can fashion minimum safety measures to prevent further tragedies from occurring in MMA.  At a minimum, adding a hydration requirement when athletes make weight can go a long way in addressing dangerous cuts.  Whatever the solution, ignoring the problem and saying “nobody’s ever been hurt from it” is not the answer.

In my continued efforts documenting prosecutions following alleged Pay Per View piracy, reasons for judgement were released this week by the United States District Court, N.D. California, assessing damages following piracy of UFC 155.

In today’s case (Joe Hand Promotions Inc v. Munoz) the Defendant aired UFC 155 without purchasing a commercial sub licence from the Plaintiff.  The Plaintiff sued and obtained default judgement.  The Plaintiff asked for maximum statutory damages but the Court instead awarded the minimum plus modest enhanced damages and damages for conversion.  In finding the evidence only supported a minimum award the Court provided the following comments: 

Plaintiff states that Defendant violated Section 605, but fails to state the actual means of signal transmission used, which is necessary to determine whether Plaintiff has sufficiently stated a claim pursuant to Section 605. Here, Plaintiff’s investigator was unable to determine the exact means used by Defendant to intercept the Event, and Plaintiff provided no additional information on this subject beyond Tate’s indefinite affidavit.

In that regard, the Court awards Plaintiff $1,000 in statutory damages. This amount is appropriate because, as noted, Plaintiff did not develop sufficient facts to justify any increase from the minimum award allowed under the statute. As in other cases filed in this district, Plaintiff’s investigator failed to determine the means used to intercept the Event. Such a presentation — the result of a fifteen-minute investigation — certainly cannot support the maximum award requested by Plaintiff, or anything more than the minimum amount provided by the statute.

Earlier this year I addressed why the Nevada State Athletic Commission is on thin ice to discipline Wanderlei Silva for ducking an out of competition drug test.  In short it comes down to the fact that he presently is not licensed nor applying for a licence with the Commission.

Today, it was revealed that Silva is indeed challenging the Commissions authority to punish him.

I have obtained a copy of Silva’s Motion to Dismiss Nevada’s Complaint for Disciplinary Action thanks to Yahoo Sports writer Kevin Iole.  For those interested here it is in full: 

Wanderlei Silva Mtn to Dismiss with ROC’s 08-15-2014

Silva’s arguments largely mirror the arguments previously advanced here and conclude that “the NSAC lacks the jurisdiction to seek disciplinary action against Mr. Silva, and any attempt to do so, clearly exceeds the NSAC’s limited statutory jurisdiction“.

The motion goes on to cite Andrews v. Nevada State Board of Cosmotology which confirms that entities such as the NSAC are creatures of statutory power that have “no general or common law powers, but only such powers as have been conferred by law expressly or by implication“.

Silva’s motion is on strong legal footing.  If and when he ever decides to apply of a licence in Nevada he will have to answer for his actions.  Until that time the NSAC does not enjoy the power necessary to take action.

 

Reasons for judgement were released this week by the United States District Court, S.C. California, upholding a modest damage assessment in a case of piracy of a PPV product.  

In this week’s case (Joe Hand Promotions v. Khan) the Defendant operated a commercial establishment and was sued for airing a PPV program without paying the commercial licencing fees.  He was found liable and ordred to pay $750 in conversion damages and a further $1,000 in statutory damages under 47 U.S.C. § 605(e) (e)(3)(c)(i)(II).

Displeased with this assessment the Plaintiff sought to alter the judgement.  The motion was denied with the Court noting an absence of any aggravating factors justifying a departure from the assessment.  In upholding the assessment the Court proved the following reasons:

Pending before the Court is Plaintiff Joe Hand Promotions, Inc.’s Motion to Alter Judgment. Plaintiff argues that the Court erred in awarding $1,750 in damages, comprised of $750.00 in conversion damages and the statutory minimum of $1,000 under 47 U.S.C. § 605(e) (e)(3)(c)(i)(II). Plaintiff contends that enhanced statutory damages should have also been awarded.

The question of whether to award enhanced damages is within the court’s discretion. See Kingvision Pay Per View, LTD v. Ortega, 2002 WL 31855367, *2 (N.D.Cal. 2002) (reasoning that in evaluating whether to award enhanced damages, courts can consider factors such as repeated violations, the intent to profit and actual profit derived from the violations). Here, Plaintiff contends enhanced damages are warranted for two reasons.

First, Plaintiff relies on other cases that awarded enhanced damages. But those cases are factually distinguishable. In Kingvision v. Lake Alice Bar, 168 F.3d 347(9th Cir. 1999), the $80,400 award was based on the bar’s “repeated willful violations.” Id. at 350. Therefore, a higher damage award was warranted to deter defendant from future violations. In contrast, here Defendant was a first time offender, and there is no evidence suggesting a higher damage award is necessary to deter Defendant from committing future violations. Moreover, in Kingvision, the Ninth Circuit remanded the case “so that both sides [could] be heard on the appropriate amount of any reduction in the judgment.” Id. at 352. The remand suggests that the damage award was too high.

Plaintiff also cites J & J Sports Productions Inc. v. Olivares, 2011 WL 587466 (E.D.Cal. Feb 9, 2011), where more than 60 patrons were viewing the program. In contrast, Defendant’s establishment had far fewer patrons during the program. Additionally, because Defendant did not charge an entrance fee or advertise the program, there is no evidence suggesting that Defendant intended to profit and actually profited from the violation.

Next, Plaintiff argues that the award focused too heavily on specific deterrence at the expense of general deterrence. But as explained in the order, under the circumstances of this case, the Court is mindful that a larger award might put Defendant out of business. See Lake Alice Bar, 168 F.3d at 350 (reasoning that, “[d]epending on the circumstances, a low five figure judgment may be a stiff fine that deters, while a high five figure judgment puts a bar out of business”). Therefore, the Court finds that the damage award of $1,750 is reasonable.

For theses reasons, Plaintiff’s motion to alter judgment is DENIED