Immediately after filing a second lawsuit in New York seeking a declaration that the State’s Combative Sport Law is unconstitutionally vague as applied to professional MMA, the UFC has requested that a preliminary injunction be granted preventing the law from being used to shut down a scheduled event at Madison Square Gardens in April, 2016.

The UFC’s full argument can be found here (courtesy of New York MMA Journalist Jim Genia) – Zuffa v New York Memo In Support of Preliminary Injunction

In short the UFC argues that a preliminary injunction is 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 UFC’s argument that the law is inherently vague and inconsistently applied is on fairly strong legal footing.  Whether these arguments warrant a preliminary injunction before the case is fully canvassed on its merits is yet to be seen.

In the event this is granted the State of New York will have a problem on their hands in that they will largely lose the reigns on the regulation of professional combative sports.  To this end, as Genia notes, the possibility of legislative amendment in the early New Year cannot be ruled out

This past week has seen two crucial developments in the anti-trust lawsuit filed by various fighters against the UFC.  First the UFC lost a motion to dismiss the claim.  Second, the UFC lost a motion to prevent one of the Plaintiff’s key lawyers, Rob Maysey, who was instrumental in getting the litigation underway and founder of the Mixed Martial Arts Fighters Association, from having access to documents disclosed in discovery.

Tweet reporting UFC loses request keeping Maysey from accessign discovery docs

With this hurdle out of the way full discovery is set to begin in the litigation.  Economist and MMA reporter Paul Gift, canvassed what this means at this worthwhile article at BloodyElbow.  The discovery highlights are as follows –

According to a previously filed case management statement, the entire process should take around 16 months. Dana White and Lorenzo Fertitta will certainly be deposed and have to truthfully answer questions under oath. As previously reported by Bloody Elbow, there’s an extensive initial list of UFC employees and other MMA figures who could easily find themselves in a deposition room in the next 12 months.

UFC Employees

Dana White, Lorenzo J. Fertitta, Frank J. Fertitta, Peter Dropick, Jackie Poriadjian, Craig Borsari, Ike Lawrence Epstein, Kirk Hendrick, Ken Berger, John Mulkey, Joseph Silva, Sean Shelby, Edward Muncey, Marc Ratner, Michael Mersch, Tracy Long, Sonja McKinney, Reed Harris, David Safer, Mike Mossholder, Link McCluan, Shanda Maloney, Michael Pine, Steven Gray, Ryan Richeal, Doug Hartling, Marshall Zelaznik, Joe Carr, Garry Cook, David Allen, Michael Britt

Other Key Players

Scott Coker, Rich Chou, Bjorn Rebney, Frank Shamrock, Mike Afromowitz, Fedor Emelianenko, Oscar De la Hoya, Pride executives, Randy Couture, Mark Cuban, Ed Soares, Jeff Aronson, Lex McMahon, Shannon Knapp, Julie Kedzie, Ray Sefo, Ali Abdel-Aziz, Kevin Kay, Ben Askren, Bob Arum, Lou Dibella, Ken Hershman, Bob Meyrowitz, Monte Cox, Rose Gracie, Terry Trebilcock, Vadim Finkelchtein, Turi Altavilla and more.

We’ve also learned more about the discovery process in the past week. The parties are still arguing over how broad the UFC’s document production should be. It was originally slated to take place in two phases and is unknown at the moment if the phases will be consolidated since the motion to dismiss has been denied. Regardless of the phasing, here’s what the UFC has committed to so far.

Organizational Charts

The UFC has produced two 2015 organizational charts. Plaintiffs were not satisfied with this and have proposed that the UFC identify all individuals “who may have potentially relevant information.” Upon review of this information, plaintiffs and the UFC will negotiate “…to identify an agreed number of custodians whose documents and information should be searched for production.”

In other words, whose documents and e-mails should be searched? We know at least nine people are targeted at the moment, and this number could expand.

“Zuffa has proposed to Plaintiffs a list of nine custodians, broken down by topic, who Zuffa believes are most knowledgeable about the subject matter of Plaintiffs’ Complaints.These custodians comprise the three primary decision-makers at the company, the three other individuals primarily responsible for fighter relations, as well as the group leaders for agreements with sponsors, venues and merchandizers.” (Emphasis added)

Financial Documents

The UFC has agreed to provide “detailed financial documents such as consolidated financial statements, event-by-event financial analyses, where available, showing gate receipts, Pay-Per-View revenues, and sponsorship and merchandise revenues and documents showing revenue from other sources that are not contained in the event-by event analyses. Zuffa also proposed to provide financial data sufficient to show each athlete’s event and non-event related compensation in Plaintiffs’ requested format, where possible, on an event-by-event and fighter-by-fighter basis.”

Fighter Contract Files

“Zuffa proposed to provide to Plaintiffs copies of the hard copy Fighter Files for the named Plaintiffs and an agreed upon number of additional fighters selected by Plaintiffs. These hard copy files contain not only the agreements entered into between Zuffa and the fighter but, where applicable, also correspondence related to the contracts, including negotiations, and correspondence regarding extensions and suspensions and related information that Plaintiffs can use to test their allegation that the contracts lock fighters up “in perpetuity.” These files, which include contracts and other information for, at minimum, hundreds of athletes, are extraordinarily voluminous and, given the communications regarding negotiations, contracts, and extensions, contain materials that may be privileged and will require close privilege review. Moreover, because these files contain personally identifiable information (“PII”), such as Social Security numbers, the files will need to be redacted to protect the athletes’ PII. Given those considerations, which will require extensive review of the files prior to production, Zuffa has agreed to produce a representative subset of these files to Plaintiffs in Phase 1. For these and the other files for which Zuffa has offered to provide representative samples, Zuffa has offered to discuss an appropriate sampling method with Plaintiffs.”

Venue Contract Files

“Zuffa has proposed to provide Plaintiffs with the contract files for an agreed-upon number of venues selected by the Plaintiffs. These contract files contain not only the agreement between Zuffa and the venue but may also contain additional information related to the contract, such as correspondence. Given the potential for privileged information in these files, which will require extensive review prior to production, Zuffa has proposed in Phase 1 to provide Plaintiffs with a representative sample of these files.”

Sponsor Contract Files

“Zuffa has proposed in Phase 1 to provide Plaintiffs with the contract files for an agreed-upon number of sponsors selected by Plaintiffs. Like the venue files, these files may also contain additional information such as correspondence related to the agreement. Given the potential for privileged information in these files, which will require extensive review prior to production, Zuffa has proposed in Phase 1 to provide Plaintiffs with a representative sample of these files.”

Merchandise Contract Files

“Zuffa has proposed in Phase 1 to provide Plaintiffs with a representative sample of contract files for an agreed-upon number of third-party merchandisers selected by Plaintiffs. These files are not limited to the agreements but may contain additional information related to the agreement, such as correspondence. Given the potential for privileged information in these files, which will require extensive review prior to production, Zuffa has proposed in Phase 1 to provide Plaintiffs with a representative sample of these files.”

List of Television Contracts

“In Phase 1, Zuffa will provide a list of contracts it has with television distribution outlets. Zuffa will then meet and confer with Plaintiffs regarding a plan for which documents should be produced.”

Third Party Analyst/Consultant Reports

“Zuffa has proposed to search for and produce third-party analyst or consultant reports responsive to this Request found in Zuffa’s financial department.”

FTC Strikeforce Documents

“Zuffa has proposed to produce in Phase 1 all documents produced to the Federal Trade Commission in response to the Commission’s closed investigation of Zuffa’s acquisition of the Strikeforce promotion, the only acquisition in the Complaints that arguably falls within the statute of limitations.”

List of Litigations/Arbitrations

“Zuffa has proposed to initially provide Plaintiffs with a list of litigations and arbitrations with athletes and their representatives related to Zuffa’s contracts, at which point the parties can meet and confer to refine the set of documents responsive to these Requests.”

Last month I questioned whether all UFC fighters have agreed to the promoter’s anti-doping policy and pondered what would happen to fighters who refuse to do so.  Yesterday, the UFC’s Vice President of Athlete Health & Performance, Jeff Novitzky, shed some light on these issues.

In a broad interview provided to Josh Samman at BloodyElbow, Novitzky acknowledged that not all fighters have agreed to the new anti-doping policy and perhaps more interestingly that, to his understanding, the UFC would not offer bouts to any athlete that refuses to sign.  Novitzky was quoted as follows:

I will say that not everybody has signed it. The majority have, although I haven’t run into any instance where I was told a fighter 100% wasn’t going to sign it. I think it’s just one of those deals where it takes a long time to get 600 people to sign something. In terms of the repercussions from refusing to sign it, my understanding is that they’re not going to be fighting for us if they don’t agree to this anti-doping program. We can’t have it that some are going to be subject to it and others aren’t. It’s going to be a condition of getting a bout, in my understanding.”

The real question is what will be the legal fallout for athletes who refuse to sign and are then not offered bouts?  While there may not be much sympathy for an athlete who refuses to enter into an anti-doping agreement, basic contract law principles do come into play and an athlete is certainly entitled to request that their existing contracts with the promotion be honored without unilaterally imposed change.

UFC contracts have standard “entire agreement” clauses and further standard language about alterations not being permitted without consent of both parties.  In other words, a fighter ought to be able to refuse to sign the addendum and still maintain their existing contractual rights the same way a promoter can refuse a fighter’s request for more money while under existing contract.

While the UFC should be applauded for taking firm measures against doping in a full contact sport, this situation (along with the recent Nick Diaz saga) reveal why the athletes should have a voice at the table with the promoter and regulators when it comes to anti-doping measures.

Earlier this year when Federal Judge Kimba Wood dismissed a UFC lawsuit against New York alleging the State’s professional MMA ban was unconstitutional the Court noted that the Plaintiff’s did not have standing to sue.  The Court did suggest, however, that the law may not withstand scrutiny if the UFC could establish damages and invited

(the) Plaintiffs, particularly Zuffa, may consider filing new vagueness claims based on events that occurred after this lawsuit commenced, including the OAG’s recent statements that the Ban prohibits sanctioned professional MMA (despite its plain language to the contrary).”

Although the first lawsuit is under appeal the UFC was quick to take up Judge Wood on her suggestion and this week filed a second lawsuit.  Taking lessons from admissions gained through discovery from the prior litigation and further taking Judge Wood’s comments to heart the second lawsuit is a leaner and more compelling version of the first.  Zuffa booked Madison Square Gardens for an anticipated UFC card in April 2016 and signed a contract with the WKA to act as a sanctioning “exempt organization” arguably making the event legal.

The UFC is essentially now playing chicken with the State of New York to see if they will take action to shut the event down.  If they do they have damages and have standing to sue.  If not then they will get in the back door what has not yet fit through the front.

In short the lawsuit alleges that New York’s Combative Sport Law is unconstitutionally vague as applied to professional MMA and they are seeking a declaration stating the same along with an injunction preventing the State from enforcing the Combative Sport law against UFC professional events.

The full pleadings can be found here (courtesy of MMA Journalist Jim Genia) – Zuffa v New York

These are worth reading in full to see the sometimes inconsistent and difficult to understand stance that New York has taken trying to establish that the law prohibits modern day professional MMA in the Empire State.

The latest development is this claim is set to be heard by the very same Judge Kimba Wood who expressed strong views as to the merits of the vagueness claim.

Jim Genia Tweet Re Kimba Wood

Your move New York.

Jon Jones Guilty plea image

This morning Jon Jones plead guilty to a 4th degree felony after being involved in a hit and run causing injury to his victim, a crime which came with a potential of up to 18 months imprisonment.

A plea deal was reached and he was sentenced to a conditional discharge (basically meaning Jones will not be a convicted felon if he complies with all of his conditions of probation).

The conditions include supervised probation for up to 18 months.   The court was open to a potentially earlier discharge if the probation office felt it was warranted.

During probation Jones was ordered to make 72 charitable appearances which equal to one for each week of his probation period.  The court did not restrict his ability to travel for his promotional obligations for the UFC.  The court noted a further hearing will be held after the 72 appearances are complete to determine if it is appropriate to finalize the discharge.

Below are the standard terms of probation as set out by New Mexico’s Corrections Department –

Standard supervision serves those offenders in the community who are less likely to re-offend and who do not fit the criteria of special programs. Some offenders are placed into standard supervision if they are pending acceptance in special programs. The following are the conditions of Standard Probation Supervision.

  • State Laws: I will not violate any of the laws or ordinances of the State of NM, or any other jurisdiction. I shall not endanger the person or property of another.
  • Reporting: I will report to my Probation/Parole Officer as often as required and will submit completed and truthful written reports as required by my Probation/Parole Officer. All communication with my Probation/Parole Officer will be truthful and accurate and I will promptly reply to any correspondence or communication I may receive from the Probation Office.
  • Status: I will get permission from my Probation/Parole Officer before: a) Leaving the county where I am being supervised and/or residing; b) Changing jobs; c) Changing residence; or d) Engaging in any major financial contract or debt.
  • Association: I will not associate with any person identified by my Probation/Parole Officer as being detrimental to my Probation supervision, which may include persons having a criminal record, other probationers and parolees, and victims or witnesses of my crime or crimes.
  • Visits: I will permit any Probation/Parole Officer to visit me at my home or place of employment at any time. I will permit a warrant-less search by the Officer of my person, automobile, residence, property and/or living quarters if he/she has reasonable cause to believe the search will produce evidence of a violation of my conditions of probation.
  • Employment: Unless exempted, I will make every effort to obtain and hold a legitimate job and fulfill all financial obligations required of me including support of my family. I shall cooperate with my Probation Officer in any effort to assist me in obtaining employment. If I lose my job for any reason, I shall report this fact to my probation/Parole Officer within 48 hours of the change.
  • Weapons: I will not buy, sell, own or have in my possession, at any time, firearms, ammunition, or other deadly weapons.
  • Drugs: I will not buy, sell, consume, possess or distribute any controlled substances except those legally prescribed for my use by a State Certified Medical Doctor. I will also provide urine or breath test specimens for laboratory analysis upon request of the Probation and Parole division.
  • Arrest: I will report any arrest, charge or questioning by a Peace Officer to my Probation/Parole Officer within 48 hours of the incident. The toll free number 1-866-416-9867 is available for emergency contact with my Probation/Parole Officer.
  • Transfer: If my probation supervision is transferred to another state, I will abide by any additional supervision conditions required by that state.
  • informant: I will not enter into any agreement to act, or act as an “informer” or special agent for any law enforcement agency without the permission of the Director of the Probation and Parole Division and the sentencing judge.
  • Probation Costs: I will pay probation costs as determined by my Probation/Parole Officer on or before the designated date each month to the Corrections Department in the form of a money order or cashier’s check.
  • Photo: I will submit myself for photographing and fingerprinting as directed by the Probation & Parole Division.
  • Alcohol: I shall not possess, use or consume any alcoholic beverages and will not at any time enter what is commonly known as a bar or lounge where alcoholic beverages are served or sold for consumption on the premises.

On Friday the UFC lost a motion to dismiss the proposed class action anti trust lawsuits against them.  If you are not following the ins and outs of this litigation I encourage you to do so at BloodyElbow where Paul Gift and John Nash have provided coverage that is second to none.

In Gift’s play by play breakdown of Friday’s proceedings Judge Boulware, who has conduct of the case, made interesting comments during argument which could shed light on how one of the most essential pieces of evidence will be viewed, the duration of UFC fighter contracts.

In the simplest of terms, the lawsuit alleges that the UFC obtained their market position through a series of anti-competitive practices and have secured approximately 90% of the global share of all MMA revenue and are misusing this position of prominence to give fighters an unfair deal.  In other words, the heart and soul of the lawsuit, (if the fighters can prove the UFC did gain their market position through anti-competitive practices) is the allegation that UFC fighter contracts are unfair.

Money is just one element in a contract that will be considered in determining fairness.  Here, Judge Boulware’s comments shed light into how another factor may be viewed, the issue of contract length.

The fighters argued that UFC contracts have the potential to lock in talent forever to which the UFC countered that no such express language exists in the Contract.  Judge Boulware was quick to respond noting a contract with a matching clause is “not a 2 or 3 year contract, that’s forever.”

Here is the heart of the issue.  In 2013 when BleacherReport broke down the terms of Eddie Alvarez’s proposed contract a few key features came into the public eye.  The first is that UFC contracts don’t end easily.

At the conclusion of the contract and any exclusive negotiating period a fighter can test free agency. However, during this period, as Judge Boulware noted, matching provisions come into play. During the term of the matching period the UFC enjoys “the option to match the financial terms and conditions of any offer made to Fighter.  In addition, if a fighter is a champion at the end of their term, a position which arguably makes them the most desirable free agent, the contract contains a ‘champions clausewhich ties a fighter to the promotion for a further period.

As was noted by Northwestern University labor law professor Zev Eigen in BleacherReport’s article, the champion’s clause has never been judicially challenged and it is “potentially a violation of the 13th Amendment, the prohibition against… involuntary servitude. You can’t force someone to work for you. I don’t know how, under contract law, that would be enforceable.“.

Eigen further noted that the matching provisions may not pass judicial scrutiny stating “It’s a little bit tricky because contracts are governed by state law. But in general terms, this is problematic. It’s essentially a contract that could have no end. You can’t compel someone to work for you.

There are a lot more twists and turns to come as the anti trust lawsuit continues to weave its way through the courts.  At the end of the day, however, one of the outcomes is that these contract terms when contrasted with the very short window of professional fighters careers may receive a judicial overhaul.

For some examples of how fighter contracts have been reformed (or proposed to be reformed) over the years you can look at

Lost in this week’s story by Josh Gross discussing the UFC’s role in mixed martial arts ‘TRT era’ is the important parallel story that doping is 100% legal under Ontario’s combat sports regulations.

Combat sports regulation in Ontario is filled with problems such as the government turning a blind eye to amateur MMA which is illegal in the Province.  Perhaps no bigger issue exists, however, than the Government’s complete failure to address doping in professional MMA and boxing.

As previously discussed, in Ontario the Athletics Control Act Regulation which governs the sport of professional MMA does not require mandatory drug testing.  Instead, section 17.1 of the Regulation only requires drug tests to be performed by the commission if the contract between the fighter and the promoter “requires the participant to undergo a drug test“.  The full section reads as follows:

17.1  If a contract between a participant in a professional contest or exhibition and the person holding the contest or exhibition requires the participant to undergo a drug test on the day of the contest or exhibition, the Commissioner shall, on request, oversee the administering of the test and the person holding the contest or exhibition shall pay for the costs of administering the test. O. Reg. 465/10, s. 16.

In other words no out of competition testing ever.  Day of competition testing also does not exist unless there is a specific contract between the promoter and fighter.  It goes without saying that a regulator allowing a promoter to call  the shots on performance enhancing drugs creates an obvious conflict of interest (hint – look at the PRIDE we won’t test for steroids clause).

Worse yet, where no such contract exists then performance enhancing drugs such as testosterone and EPO and methods such as blood doping will not violate Ontario’s regulations.  Baffling!

If you don’t want to take my word on it you can listen to the Government themselves who, two years ago, confirmed to me that

The OAC does not require drug testing of fighters, and does not have a list of prohibited drugs”

And more recently to Bloody Elbow’s John Nash that

The Athletics Control Act does not require testing for illegal drugs and/or performance enhancing substances. If a promoter includes a requirement for drug/substance testing in its contract with the fighters, they can request that the Commissioner administer those tests.  However, it would be up to the promoter to determine what would satisfy that contractual requirement or if an exemption should be made for certain treatments. The Commission has no role to play in such decisions. Questions about test results for drugs or performance enhancing substances for fighters in a particular event should therefore be directed to the promoter.”

Ontario has been slow to make meaningful change to their combat sports legislation and are doing little more than ‘reviewing’ their lacking laws.  If nothing else comes of Gross’ work, Ontario should be embarrassed to be North America’s largest jurisdiction with legal doping in combat sports.  For the safety of competitors and the integrity of Boxing and MMA Ontario should quickly remedy this situation.

Update October 3, 2015 – today at the UFC 192 post fight presser UFC Vice President of Public Relations issued the following comments on this issue – “I think one of the things to keep in mind with this particular topic is any suggestion or inference that there was a cover up regarding to that is just categorically false.  That period of time with TRT was one that was very tricky for everyone. For the UFC, for Athletic Commissions and for athletes alike.  I think when everybody came to a conclusion that it didn’t have a place in the sport, and it was outlawed in 2014, we were quick to make sure that we too followed suit as Nevada have said.  And as you look at it today we have signed on with one of the greatest and most stringent anti doping policies in the world through USADA.  So our positioning in anti doping in the sport is the same.  We have no place for it in our sport and we are going to, through Jeff Novitzky and the USADA folks, continue to be aggressive to make sure that performance enhancing drugs have no place in the UFC.”

Update September 30, 2015 – yesterday UFC Vice President of Health and Performance Jeff Novitzky was the first from the organization to acknowledge this situation.  He told Josh Samman, in an interview for BloodyElbow, as follows “I think with the whole TRT issue, it goes back to what we started with, which is I don’t think the UFC and the commissions a couple years ago had knowledge of what it was. It’s a very complicated field, anti-doping, and steroids, and TRT. I just think everyone was a little naive a couple years ago, and I give them credit for bringing in someone that hopefully knows enough about it. I don’t profess to know everything there is about anti-doping, but if I don’t know, I know exactly who the world experts are to call. I think that was a part of hiring me to come here, was an acknowledgement within the organization that they didn’t know everything there was to know about anti-doping


Yesterday Josh Gross wrote a long form article suggesting that the UFC allowed Vitor Belfort to compete at UFC 152 despite a “sketchy” drug test.

In short the article alleges that

  • Belfort was using testosterone
  • the UFC knew this
  • Belfort’s levels were “high” at some point prior to the bout (or at least the high end of normal)
  • the Ontario Athletic Commission, who regulated UFC 152, deferred to the promoter on doping issues
  • the bout went ahead without Belfort’s testosterone use being disclosed to Jones.

Jones won the bout and retained his title.  No harm no foul, right?  Not necessarily.

Here is why such a fact pattern, if true, (and I use the word “if” because the UFC have not weighed in on their version of what occurred) can prove problematic and how MMA’s ‘testosterone era‘ may come back to haunt many.

The fight business is a risky one.  The chance for injury is real.  A career in the fight game comes with a real possibility of long term health consequences including brain damage such as CTE.

Despite all these risks the fight game is allowed based on one fundamental principle, informed consent.  Adults generally can consent to engage in risky activity, even if it poses a risk of harm to themselves and their competitor.  Here the issue of ‘informed’ consent becomes crucial.  Relevant facts which can vitiate consent cannot be swept under the rug otherwise the integrity of the consent is compromised.

Anther legal principle of significant import is that of ‘indivisible injuries’.  It is a principle which states that if multiple events cause an injury, and it is impossible to say which event contributed how much to that injury, anyone legally responsible for an event which contributed to the injury may be liable for the whole of the loss.

Now let’s talk Chronic Traumatic Encephalopathy.  CTE.  The progressive degenerative disease that is plaguing countless career athletes from collision sports such as football, rugby, hockey and boxing.  Eventually MMA will make its way to this list.

CTE is the classic example of an indivisible injury.  If the disease is formed from a life time of blows to the head any bout can play a role.  All a Court would need to decide for legal liability to potentially follow is if a fight that forms the foundation of a lawsuit “aggravated or exacerbated” this condition.  Any fight ending in a KO or TKO victory would likely have little difficulty meeting this test.  From there, the liable party is on the hook for the full toll of the disease.  We are talking about a lifetime of care and damages.

So, lets apply these legal principles to potentially covered up doping in a combat sport –

  1. If a fighter cheats through doping and harms their competitor, legally consent to fight may not exist and the door is open to a lawsuit based on assault.  For a real world example of pre-bout cheating vitiating consent leading to criminal assault you can look to the Collins v. Resto litigation.
  2. If an athletic commission fails to have adequate anti-doping measures in place (hint, Ontario and you can click here to read just how ridiculous Ontario’s anti doping scheme is) they can be exposed to civil liability as well.  Again, want a real world example?  Just ask the British Boxing Board of Control how much their inadequate safety measures cost them.
  3. If the harm is CTE or another indivisible injury the damages in play may be significant.  The Concussion lawsuit strategy of blaming the athlete for a lifetime of shots may not embraced by the courts.
  4. The legal net can target not only the doping competitor, but also others who have a duty of care to the athlete and regulators who ignore their duty in looking after combatant safety with sensible policies on doping.
  5. Not only can allegations of fraud vitiate consent, they can also work to stall limitation periods and set aside contractual provisions with defenses such as waivers of liability and assumption of risk clauses.  Remember that it was allegations of fraud that gave fuel to the NFL concussion lawsuit. (Updateinterestingly an argument can be made that using TRT and not disclosing it is A-OK in Ontario given the Province’s comical anti doping laws).

Regulators and promoters have made strides to clean up doping in MMA in recent years.  The past, however, is not always as easy to sanitize.  If and when the CTE era comes to MMA the TRT era will not be viewed favorably.

Adding to this site’s archived cases of UFC pay per view event piracy prosecutions, two further judgments were released recently reaching rather opposite results in assessing damages on fairly similar facts.

In the first case (Joe Hand Promotions , Inc v. Musser) the Defendant was found liable for showing UFC 172 in his commercial establishment without purchasing the commercial sub licence from the Plaintiff.  Default judgement was awarded.  The Court assessed statutory damages at the high end of the range and also awarded enhanced damages.  In finding it was just to do so District Judge Sandra Beckwith reasoned as follows –

The Court finds that an award of the statutory maximum of $10,000 is appropriate in this case. The affidavit of Plaintiff’s investigator, Mark Caddo, states that he entered Charlene’s Lounge at 9:30 p.m. on April 26, 2014 (which was a Saturday night), and saw the Plaintiff’s program being played on four television screens behind the bar starting at 10 p.m. There was no cover charge, and the bar’s maximum occupancy was 250; Mr. Caddo counted between 10 and 18 patrons in the bar during the approximately 90 minutes that he remained at the bar. (Doc. 10-3) These facts do not suggest that the establishment reaped any significant profit from the illegal broadcast. But they do mesh with what Plaintiff describes as the “piracy model” of illegally broadcasting events such as Plaintiff’s UFC program. An award of a minimum amount of statutory damages would not address the necessity of deterring the conduct that is apparently quite common yet quite difficult for Plaintiff to detect and document.

Moreover, based on Plaintiff’s arguments and Mr. Caddo’s observation of a satellite dish on the roof of Charlene’s Lounge that evening, the Court agrees that the Defendant’s violation was willful within the meaning of the statute, as being done for the purpose of an indirect commercial advantage. Plaintiff cites cases defining “willful” conduct as conduct exhibiting a careless disregard for the governing statute and indifference towards the requirements of the law. See, e.g., TWA v. Thurston, 469 U.S. 111, 126-127 (1985). Whether or not Charlene’s Lounge actually reaped a commercial or economic advantage from the illegal broadcast is not controlling for purposes of determining willfulness; and it is difficult to imagine any other motive for such conduct. The Court finds that an award of $10,000 enhanced damages for the willful violation is appropriate based on the evidence and the arguments presented.

For all of these reasons, the Court orders that a default judgment be entered against Defendant Redeye Partners, LLC, individually and as the alter ego of Charlene’s Lounge, and in favor of Joe Hand Promotions, Inc., for statutory damages of $20,000 pursuant to 47 U.S.C. §§605(e)(3)(B)(iii) and (C)(I) and (ii), together with reasonable attorneys’ fees of $1,375.00 and costs of $400.00, for a total judgment of $21,775.00.

In the second case, (Joe Hand Promotions, Inc v. Hibbard) the Defendant was found liable for broadcasting UFC 167 in a commercial establishment without the appropriate licence.  The facts were fairly similar to the above case but here the Court awarded minimal damages.  In finding this was appropriate District Judge Meyerscough provided the following reasons:

In this case, Plaintiff submitted the Affidavit of its Investigator, who reported that she counted the number of patrons three separate times on the night the Program was broadcast. Aff. of Alexandria Gunn, Ex. B (d/e 18-2). The head counts were 20, 28, and 37. Id. Based on the capacity of the establishment, which was 70 people, Defendant would have paid $850 had he ordered the Program. See Id.; Rate Card, Ex. C (d/e 18-3).

Plaintiff asks the Court to award statutory damages not based on the number of patrons but on the amount Defendant would have paid if he had ordered the Program ($850) multiplied by four, for total statutory damages of $3,400. Mot. at ¶ 26; see also Rate Card, Ex. C (d/e 18-3).

After reviewing the affidavit and exhibits in this case, this Court concludes that an award based upon the amount Plaintiff would have charged Defendant for the Program ($850) is the sensible approach. Because the minimum amount of statutory damages the Court can award is $1,000, the Court awards $1,000 in statutory damages.

The Court then went on to reject the claim for enhanced damages providing the following reasons:

The Court, in its discretion, finds that enhanced damages are not warranted. Certainly, by failing to appear and file an answer, Defendant has admitted the allegations of the Complaint, which include the allegation that Defendant’s conduct was willful and for the purposes of direct or indirect commercial advantage or private financial gain. Compl. ¶¶ 17. However, the record before the Court does not establish that Defendant is a repeat offender, that Defendant charged a cover fee, or that Defendant advertised the event. Moreover, the size of the crowd was not large, and Defendant likely made little profit. Finally, the Court believes the statutory damages will be a sufficient deterrent

One of the latest safety studies addressing combat sports, published last month in the journal Australasian Epidemiologist, the author compiled data from a total of 47 observational studies addressing injuries in combat sports.  Specifically the author looked for the injury incidence rate, injury patterns and injury severity rates in 6 different sports, namely boxing, judo, karate, kickboxing, mixed martial arts, and taekwondo.

The study found that sports with a striking element had the greatest injury rate with MMA leading the pack followed by boxing and the other striking sports and with Judo having the lowest injury rate of the group.

In terms of injury patterns the study found that “The head and neck was the most frequently injured anatomical region in boxing (84%), karate (74%), mixed martial arts (64%), and kickboxing (55%); whereas the lower limb and upper limb were the most frequently anatomical regions in taekwondo (51%) and judo (47%), respectively.

Lastly, in terms of injury severity the study was lacking data on boxing, MMA and kickboxing.  Of the remainign sports the study concluded that “the proportion of moderate to severe injuries (i.e. injuries resulting in more than one week of time lost from play) was 32% in taekwondo. 15% in karate. and 7% in judo.

I should mention that a recent study published addressing MMA and boxing injury severity rates noting that while MMA had a greater overall injury rate than boxing, boxing injuries tended to be more severe.

The full study can be found here – Epidemiology of injuries in full-contact combat sports

The study included the following helpful visual charts –

Figure 1 Figure 2

Figure 3

Figure 4