In what is now his third positive marijuana finding in Nevada, Nick Diaz has reportedly hired a New York lawfirm with expertise in “drug and alcohol testing policies and procedures,” to minimize fallout.  Diaz’s manager suggests there are “irregularities’ in Diaz’s results.“.

It is unclear what the suggested irregularities are and further it is unclear at this stage what legal strategy Diaz intends to employ.  What is known, however, is what strategy has failed in the past.

If Diaz holds a medical marijuana licence, relying on this after the fact cannot work as a defense.  If an athlete wants to use a prescribed drug that is banned in competition they would need to satisfy the TUE exemption test and would need to receive one ahead of time from the commission.  Prescription use cannot be used as a defence after the fact.

Another likely unsuccessful avenue is arguing that the reading is based on out of competition use.

As the world learned from the Jon Jones saga, marijuana, like cocaine, is only banned in-competition in Nevada.  There is speculation that Diaz may argue that his positive test can be accounted for by out of competition use of marijuana (ie – more than 12 hours before the bout.).  While, as a matter of fact, this may be true this legal argument has fallen flat before.

The NSAC’s current threshold for marijuana metabolites is 150 ng/mL.  In other words, any finding in an in-competition test that exceeds this threshold is deemed to be in-competition use.  Both the NSAC, and the courts in Nevada, have been satisfied that a reading that fails this threshold is sufficient to prove in competition use and justify administrative penalties.

I will follow up on this story as more details come to light.

Fixing Poor Stoppages in MMA

Posted: March 24, 2015 in Uncategorized

Update – March 26, 2015 – The Brazilian Commission has now updated their rules to allow a bout result to be overturned in these circumstances and have changed the result to a no-contest.  Here is their rule change:

“The Executive Committee may, on an exceptional basis, revert a decision to “no contest” if it determines that a good faith judgment call of a referee was mistaken and therefore considered a self-evident error. Such decision may be taken provided (i) an appeal is filed with the commission within 72 hours of the relevant bout, (ii) the appeal is accompanied by a video (or link thereto) of the bout showing the challenged judgment call, (iii) upon request by the Executive Committee, the relevant referee presents a written justification of his judgment call and (iv) after analysis of the relevant video and justification, the Executive Committee determines that the judgment call was in good faith but considered a self-evident error.”


In what has been widely dubbed the worst stoppage in UFC history Brazilian referee Eduardo Herdy stopped a bout and awarded Leandro Silva a supposed submission victory when his opponent neither was unconscious nor did he verbally or physically tap out.

Despite the fairly patent mistake Comissao Atletica Brasileira de MMA (CABMMA) – the Brazilian MMA Athletic Commission, stood by the result stating they are likely powerless to overturn it.

Many Athletic Commissions face a similar problem.  As was demonstrated in the Urihah Faber v. Fransisco Rivera saga, other than when a positive drug test is involved, Commissions that model Nevada’s ruleset only have jurisdiction to overturn a decision in the following three limited circumstances:

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.

The third exception likely does not help as a referee believing a tap out or loss of consciousnesses occurred when they did not is not an error interpreting the rules but rather an error of fact.

New Jersey, a leading jurisdiction in the regulation of MMA, apparently does not wish to be bound by such poor outcomes.  As Ben Fowlkes reports, Larry Hazzard, the commissioner of the New Jersey State Athletic Control Board believes they can overrule the referee if there’s a palpable error that’s occurred.  He is quoted as follows:

By New Jersey rules, the commissioner can overrule the referee if there’s a palpable error that’s occurred…I don’t know about other commissions, but our rules already permit the commissioner that sort of supreme authority to overrule the referee, especially in the situation where the referee has made an obvious and palpable error.

This quote intrigued me because my jurisdiction, British Columbia, automatically borrows all New Jersey rule changes in MMA as section 24 of BC’s Athletic Commissioner Regulation adopts the New Jersey Rules “as amended from time to time.

Unfortunately, it appears there is no actual rule change in New Jersey.  I reached out to Ben Fowlkes who advised that there is no ‘new’ rule just a liberal interpretation of their existing rules.

Ben Fowlkes Tweet

I reached out to the NJSACB who brought New Jersey Administrative Code Rule 13:46-8-30 to my attention which reads “The Commissioner may in his discretion change a referee’s decision if in his judgment a palpable and self-evident error has been committed“. However this rule is under subchapter 8 which deals with “Boxing Referees and Judges” and not MMA.   (Click here if you are interested in reading an administrative decision (Mayorga-Spinks-Decision) dealing with this rule where a boxer challenged a bout result to to referee error with the commission upholding the result).

I question how such an interpretation can apply to MMA when subchapter 24A, the subchapter dealing specifically with MMA has Rule 13:46-24A.12 stating that “The referee and ringside physician are the sole arbiters of a bout” and does not contain a specific provision dealing with MMA contests being overturned by the Commissioner due to palpable error.

In any event, I applaud New Jersey for attempting to address a problem with their rule set however, instead interpreting their rules in a fashion that may not be survive challenge the State, along with other jurisdictions would be wise to consider formal rule amendment to overturn otherwise unjust results in competition.

Update March 22, 2015 – Ryan Machan has confirmed this bout has now been cancelled –

Cody McKenzie Fight Cancelled Tweet


In an interesting development, former UFC Fighter Cody McKenzie is scheduled to headline Havoc FC 8 which takes place on March 27, 2015 in Red Deer Alberta.  Here is the promotions advertisement of the bout –

Havoc FC 8 McKenzie Announcement

McKenzie is currently serving a 3 month suspension levied by the Edmonton Combative Sports Commission following an intentional headbutt disqualification loss at WSOF 18 which took place on February 12, 2015.  Earlier this month McKenzie’s appeal of this suspension was dismissed by the ECSC. The Havoc FC8 date is squarely in the middle of this suspension.  McKenzie could judicially review the suspension as it is arguably on shaky statutory ground but any such review likely could not be completed before the upcoming HavocFC fight card.

I have reached to Havoc FC promoter and combatant Ryan Machan via twitter to inquire whether the bout is still proceeding but have yet to receive a reply.

RyanMacha Tweet Re McKEnzie

Red Deer Alberta does not have its own Athletic Commission and instead events have to be approved by City Council on an event by event basis.  (Red Deer resolution regarding combat sports).

Red Deer has approved Havoc FC 8 on the condition that it is overseen by the Central Combative Sports Commission which has the statutory jurisdiction to oversee events in other jurisdictions in limited circumstances.

It is unclear if this bout is proceeding or if the CCSC is prepared to honour the suspension levied by the ECSC.

I will update this story as it further develops.

Glory 20 Promo Image

With Glory 20 scheduled to take place in Dubai on April 3, 2015, British Columbia’s very own Gabriel Varga is scheduled to compete for the promotion’s featherweight world title.

Despite this accomplishment Varga cannot compete professionally in his own backyard and this situation does not appear likely to change anytime soon.

You can click here for the back-story on why British Columbia considers it out its power to allow professional kickboxing, and here for Senator Runciman’s criticism that BC’s legal position “defies logic”.

Last month the Province appointed a new Athletic Commissioner and with this changing of the guard rumors swirled that pro kickboxing may indeed soon be legalized.  Unfortunately these rumors are false.  I reached out to BC’s new Athletic Commissioner who advises that “the Province, at this time, does not intend to revisit the decision” to legalize pro kickboxing“.

Here is the Commissioner’s full e-mail:

From: BC Athletic Commissioner CSCD:EX
Sent: March-16-15 11:35 AM
To: Erik Magraken
Subject: Re: Professional Kickboxing

 Dear Erik Magraken,

Thank you for your email dated March 10, 2015 about the above referenced matter. Please be advised that the Province, at this time, does not intend to revisit the decision to preclude professional Kickboxing as part of the regulatory oversight of the BC Athletic Commission.


Wayne Willows

BC Athletic Commissioner

This weekend previously undefeated Australian featherweight boxer Braydon Smith died following a 10 round decision loss to John Vincent Moralde.  Death is no stranger to boxing with the risks being well documented.  Following combat sports deaths this is how the media conversation typically goes –

1. Stories of the fatality break with the usual sympathies expressed

2. Medical authorities and other special interest groups voice concern over combat sports and call for a ban of these “barbaric” contests.

3.  Combat Sports enthusiasts quickly remind opponents that while yes, these sports carry risks, so do many others and combat sports are far from the only risky sports out there with sports such as football, horse-racing, Motorsports and even cheer-leading all having their share of fatalities.

4.  Nothing happens.

Lost in this usual cycle is any meaningful change.  Yes boxing has inherent dangers.  Yes competitors should be made aware of these so they can make an informed decision to participate and no, the sport should not be banned just as hockey, rugby, football, skydiving, scubadiving, skiing and cheerleading should not be banned.

That said, the issue can be studied to see if there are factors that can help reduce the risks.

If you spend any time looking at the trend most deaths in combat sports occur, not with the heavy hitting heavyweights, but rather at the lower weight classes?  Let me repeat that, a higher mortality rate occurs in the lower weight classes.  Why?  It is not the power of strikes generated at these classes.  Instead, it is likely the dehydration that accompanies rapid extreme weight cuts which athletes undergo to make weight at the lower classes.

The tolls of rapid extreme weight loss are real and an ongoing concern.  I don’t know if a rapid extreme wight cut played a roll in Smith’s death, what I do know is we now have another lower weight class fatality to add to the statistics.  Stakeholders in combat sports would do well to take the issue of dangerous weight cuts seriously and consider fashioning solutions to lessen the risks associated with the unnecessary practice.

Scottt Coker Twitter Image

Litigation is perhaps the one avenue which sheds the most light on business practices in combat sports and more details are emerging through the ongoing contract dispute between Bellator and Quinton “Rampage” Jackson.

In support of their desired injunction Bellator President Scott Coker filed a Certification with the Superior Court of New Jersey which provides the promoters detailed allegations of Jackson’s contract breach.

The certification reveals that Jackson completed 3 fights of his 6 fight deal, and to date has been compensated as follows:

1. A Tesla valued at $129,603

2. $940,000 in signing bonuses, purses, sponsorship payment

3.  A $200,000 non-contractual payment

Coker goes on to state that Jackson left the promotion after failed attempts to re-negotiate his current contract certifying as follows to the Court

When he was unable to extract more money than his contract provided, Jackson purported to terminate the Agreement based on his manufactured allegations that Bellator had breached”.

Coker’s full court certification can be found here – Bellator Jackson Injunction Filing (initially obtained by MMAJunkie)

Here for Jackson’s side of the story as told by his manager, Lee Gwynn, in late 2014.

Following a first round disqualification loss due to an intentional head butt at World Series of Fighting 18, Cody McKenzie was handed a 3 month licence suspension by the Edmonton Combative Sports Commission.

Cody McKenzie Head Butts Andrew McInnes WSOF 18

McKenzie appealed the decision and his appeal was dismissed this week with the Hearing Panel holding as follows:

In his February 26, 2015 e-mail to the Executive Director the appellant stated ‘when I made the choice to headbutt my opponent I broke the Unified Rules of MMA and I accept the loss that I received because of it’.  Nonetheless the Appellant submits that he should not be subject to suspension, or, in the alternative, should have his suspension reduced based on a number of factors…

The Appellant has not demonstrated an error that has been made which requires correcting.  An Appellant has not providing any evidence that there has been a misapplication of the rules and regulations.  The evidence that has been provided by the Appellant has not provided a sufficient basis to amend the decision of the Executive Director.

For these reasons, the Commission confirms the suspension by the Executive Director.  The suspension was made after witnessing the infraction and was made in consultation with presiding ECSC officials.  Sufficient grounds to reduce the suspension have not been provided by the Appellant

A full copy of the Appeal Decision can be found here – Cody McKenzie ECSC Appeal Decision.  I’d like to thank Mike Russell for sharing this with me.

McKenzie’s only avenue to further challenge the decision would be to seek judicial review by the Alberta Court of Queen’s Bench.  The suspension would be served in full before a judicial review can realistically take place making this an unlikely avenue for McKenzie.

Interestingly, an analysis of Edmonton’s Combative Sports Bylaw show a gap which may make them vulnerable to Judicial Review and just as the Nevada State Athletic Commission should consider legislative overhaul following the Wanderlei Silva affair, the ECSC should look to review their bylaws addressing licence suspension.

The reason being is that the Commission suspended McKenzie’s licence after it was already expired, a remedy which may not survive judicial challenge.

Section 6(2) of Bylaw 15594 states that “A Licence issued to a Contestant is only valid only forth Event specified in this Licence”.

The ECSC relied on section 16 of the Bylaw to suspend McKenzie’s licence which reads “The Executive Director may revoke, suspend, refuse to issue or renew, or imposition of conditions on any Licence or Event Permit if, in the opinion of the Executive Director, it is in the public interest to do so”.

Here is the issue– McKenzie’s licence expired after the event took place.  The ECSC then ‘suspended’ it.   You cannot revoke or suspend a licence that is no longer valid.   You also cannot impose conditions on a licence that is already invalid.  The commissions powers appear limited to “refuse to issue or renew” a licence if McKenzie was to apply for a new one.

This is a legislative gap.  The Bylaw should be amended to reflect this.  It is a technical argument, not a sympathetic one (much like the Wanderlei Silva judicial review underway in Nevada right now after he was punished for running from an out of competition drug test).  The Bylaw is poorly written for situations such as this one and amendment should be considered.

Champs“, a documentary focusing on Mike Tyson, Evander Holyfield and Bernard Hopkins, is set for a 2015 theatrical release.  The movie examines the underbelly of the business of combat sports and at the 1:33 mark of the recently released trailer one fighter is quoted saying “Why is it every sport has some type of Union and boxing don’t?”

The answer?  Professional boxing and many other combat sports have a low barrier of entry.  I don’t say this to in anyway take away from the accomplishments of the sport’s elite athletes or even the moderately successful.  I’m talking about the ground floor.  Think of an 0-0 boxer or combat athlete taking their first professional fight.  Many people can enter this world if they choose to do so.  The pay is low.  The contracts are one sided in favour of the promoter or manager.  They are usually long term and often exclusive in case the prospect athlete turns in to something of a draw.

What if the fighter does not sign the lopsided deal?  They get passed over for the next person in line.  There is always another person in line willing to take the bad deal.  This is the market.  This is the price fighters pay for a low barrier of entry.  This keeps the status quo in place.

If a jurisdiction seeks to impose improved conditions for fighters with legislative change the promoters can simply look elsewhere.  When promoters have 50 states plus other jurisdictions to choose from they can shop where the market is most favorable to them.  California flirted with contract reform in combat sports only to have the proposed laws die on the vine, likely when lawmakers realized that they would lose high profile events to neighboring Nevada and other States.

In 2013 Connecticut became the 49th State to legalize MMA but when doing so implemented strict liability requirements making promoters on the hook for “any health care costs incurred by such competitor for the diagnosis, care and treatment of any injury, illness, disease or condition“.  This was basically a non-starter for any promoters looking to do business in the State and business went elsewhere.  Lawmakers have heard the message and are now proposing to water down the requirement and instead replace it with an insurance requirement. This, at the same time that a Mark Coleman, a pioneer and legend of the Mixed Martial Arts world is reduced to asking for help online to pay for health care expenses related to the hips he wore out from a lifetime in combative sports.

So long as combat sports have a low barrier to entry, legislators refuse to collaborate on across the board contractual reforms and fighters refuse to work together and form an association to impose minimum contractual protections for themselves stories such as these will remain the status quo.  That is why every sport has some type of union but combat sports do not.

Adding to this site’s list of judgments addressing piracy of UFC PPV products reasons for judgement were released last month by the US District Court, D. Colorado, assessing damages after the commercial piracy of UFC 174.

In last month’s case (Joe Hand Promotions, Inc. v. Poarch) the Defendant operated a commercial establishment and displayed UFC 174 without paying the commercial sub licencing rights from the Plaintiff.  The Plaintiff sued and obtained default judgement.  In finding $5,000 in statutory damages and a further $20,000 in enhanced damages were reasonable District Judge Arguello provided the following reasons:

Accordingly, it is ORDERED that judgment is entered in favor of Plaintiff and against Defendant Andrew Clark Poarch in the amount of $5,000.00 for statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II), because $5,000 is a reasonable amount and Defendant Poarch’s business, Lazy Lion, LLC, appears to be a profitable business. It is

FURTHER ORDERED that judgment is entered in favor of Plaintiff and against Defendant Andrew Clark Poarch in the amount $20,000.00 for statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii), because it is a reasonable amount and Plaintiff broadcasted the willfully intercepted Ultimate Fighting Championship to all of its members at the Lazy Lion, LLC. It is

FURTHER ORDERED that Plaintiff is entitled to reasonable attorneys’ fees and is, therefore, permitted to submit within fourteen days of the entry of judgment a motion and supporting documentation for reasonable attorneys’ fees. Such motion shall comply with the requirements set forth in Fed. R. Civ. P. 54(d)(2) and D.C.COLO.LCivR 54.3. It is

FURTHER ORDERED that Plaintiff shall have its costs by the filling of a Bill of Costs with the Clerk of the Court within ten days of the entry of judgment. It is

FURTHER ORDERED that post-judgment interest shall accrue at the weekly rate established under 28 U.S.C. § 1961 from the date of entry of judgment. Finally, it is


In the ongoing legal saga involving Wanderlei Silva ducking an out of competition drug test by the Nevada State Athletic Commission the Commission has now filed their answering brief arguing that they have the right to test unarmed combatants out of competition, even if they are not presently licensed, if a bout involving that athlete is being promoted in their jurisdiction and further discipline such an athlete.

While I certainly agree the NAC should have that power the current reading of the statute creating the NAC likely falls short of doing so.

In any event, I have obtained a copy of the NAC’s answering brief from the Commission and it can be found here: NSAC Answering Brief to Silva Judicial Review

The NAC argues as follows:

Out of competition testing and the subsequent discipline of unarmed combatants who cheat, is particularly necessary in unarmed combat sports.  After all, these sports are not about cheating with PED’s in order to hit homeruns or run around a track faster.  Rather, these sports involve combatants striking each other with blows which may reasonably be expected to inflict injury.  The Commission and promoters are doing their jobs to protect unarmed combatants ad the integrity of the sport when they take measures to catch and discipline athletes that cheat by doping, which brings us back to Silva…

Should an unarmed combatant who has a contest scheduled in Nevada be permitted to evade drug testing in the weeks before his contest?  The Commission believes that for health and safety of the contestants and the integrity of the sport, the answer must be “No”….When a statute is clear and unambiguous on its face, a court may not go beyond the language of the statute in determining the legislature’s intent.  The plain language of the definition of an unarmed combatant, when read together with NAC 468.850, supports the conclusion that the Commission had authority to order Silva to submit to testing…

But if the Court determines that an ambiguity exists with regard to the laws at issue…any ambiguity should be resolved in favor of the Commission’s drug testing program.

My 2 cents – Silva’s arguments about the shortcoming of the Nevada statutes are sound.  The Commission likely did not have the jurisdiction to take the actions they did and as much as they want to take a stand and make an example of Silva, a better move would be to see that proper legislative change is made to give them appropriate drug testing and disciplinary powers.