Following a series of high profile brain injury lawsuits hitting professional sports, the world of Combat Sports has now been brought into this unwelcome club.

William Haynes aka Billy Jack Haynes, a former professional wrestler, filed a lawsuit earlier this week in US Federal Court against the WWE.    The lawsuit follows a similar model to the NFL brain injury class action, namely allegations that the WWE fraudulently covered up the true medical toll of the sport from their athletes.  The most troubling allegation, one which if proven is likely to create the greatest chance of success, states that “instead of stopping wrestling matches when wrestlers have sustained head injuries, WWE, along with its doctors and medical professionals, has allowed such matches to continue” and that “during and after wrestling matches, medical professionals associated with WWE have negligently or purposefully failed to diagnose concussions” and lastly that “For years, WWE employed medical staff for the purpose of rubber-stamping a wrestler’s participation long past the outer boundaries of then-known safety guidelines“.

The lawsuit seeks class action status but has not yet been certified, the allegations have not yet been proven.

While many don’t consider professional wrestling to be a true combat sport given its predetermined outcomes, there is no doubt that these athletes are exposed to significant trauma over the course of their careers.  Whether this claim succeeds or not, the strong message to those involved in combat sports promotion is to be proactive in the face of ever growing medical understanding of traumatic brain injury sustained not only from single concussive events, but also from careers built on a foundation of multiple sub concussive impacts.

It is the duty of those who seek to profit from the toils of others to ensure those individuals understand the true risks of the enterprise.  Repeated head trauma can bring serious consequences and employers who turn a blind eye to these risks, or worse yet, cover up these risks do so at their own peril.

As the NFL lawsuit has proven, allegations of fraud can go a long way in setting aside conventional limitation periods and defenses relating to informed consent.  Combat Sports athletes have now taken notice and I suspect this is the first of many such claims which will be advanced in years to come.

Haynes Class Action Complaint Allegation can be found here – Haynes v. WWE Class Action Complaint

Adding to this site’s archived judgments of lawsuits addressing UFC piracy claims, reasons for judgement were recently released by the US District Court, W.D. Louisiana, Lafayette Division, ordering double the cost of licencing as fair damages following commercial piracy.

In the recent case (Joe Hand Promotions Inc v. Guillory) the Defendant Rival Sports Grill, LLC was sued after showing UFC 130 without paying the required sub licence fee to the Plaintiff.  The Plaintiff obtained default judgement and asked for maximum statutory damages of $10,000 and additionally enhanced damages.  The Court dismissed the claim for enhanced damages but awarded statutory damages of $3,200, a sum twice the price of the sub licence fee.  In finding this to be a fair assessment District Judge Hailk provided the following reasons:

Plaintiff has elected to seek statutory damages and requests the maximum amount of $10,000. In its Memorandum Supporting Default Judgment, R. 9, Plaintiff argues that it would be impossible to calculate the full extent of lost profits and additional damages suffered because of Defendant’s actions. To support its claim for damages, Plaintiff attached an affidavit from its President, Joe Hand, Jr., explaining the serious threat that this sort of conduct poses to the industry. R. 9-2. Courts have awarded various amounts of statutory damages for similar conduct. Joe Hand Promotions, Inc. v. Plummer 2014 WL 3749148 (N.D.Miss.,2014) (awarding base statutory damages of $3,000); Joe Hand Promotions, Inc. v. Armijo, 2014 WL 1761709 (W.D.Tex.,2014) (awarding base statutory damages of $3,600); Joe Hand Promotions, Inc. v. Alima, 2014 WL 1632158 (N.D.Tex., 2014) (awarding base statutory damages of $5,000); Joe Hand Promotions, Inc. v. Ashby 2014 WL 1330027 (E.D.La.,2014) (awarding statutory damages of $4,800); Joe Hand Promotions, Inc. v. Bonvillain 2013 WL 5935208 (E.D.La.,2013) (awarding base statutory damages of $1,925). As stated by Plaintiff, one purpose of statutory damages is to deter this type of conduct. By imposing only minimal statutory damages or only requiring Defendant to pay the licensing fee he should have previously paid, Defendant would have no motivation to refrain from continuing the unauthorized conduct. In addition, this conduct harms Plaintiff’s business and decreases profits. Considering the need to deter future similar conduct and that the commercial sub-license fee alone in this case would have been $1600, the Court finds that a flat penalty of two times the license fee, or $3200, is a just amount under the circumstances, and is comparable with awards in similar cases. See Bonvillain,2013 WL 5935208, at *2 (E.D.La.,2013) (J.Africk) (finding award of approximately twice the license fee to be a “just amount under the circumstances”)…

Considering Plaintiff’s evidence, the small size of the crowd viewing the Program, and the fact that there is no evidence that Defendant, Rival, was a repeat offender, the Court…declines to award enhanced damages.

Andy Foster, the current Executive Director at the California State Athletic Commission, recently interviewed with Joe Ferraro where Foster revealed that he is spearheading regulatory change to bring reform to the dangerous Rapid Extreme Weight Loss practices prevalent in MMA and Boxing.  You can listen to the full interview here starting at the 13 minute mark:

Fosters comments include the following

Next week I’m actually going to Las Vegas to discuss this issue with the Association of Ringside Physicians.

What I can tell you is something’s going to be coming….We want something to happen.  I think that (caliper measurements) they’ve had some good success with that.  So I think that is certainly coming.  Another thing I think is the gold standard and something I wold support is hydrostatic testing to determine the minimum weight that you can fight at for the year….Those are two ideas.

What we have right now is not working…What really got me into a panic, so to speak, was after the UFC (177) here in Sacramento, the day of the weigh-in. We have two of our fighters unable to weigh in, or licensees, because they’ve lost too much weight…I think that’s a problem. That’s want kind of stirred me to start taking action.

The A.R.P. is certainly on board with doing something. They issued their statement last year about weigh-ins…(once) we establish the lowest weight…that lowest weight be placed on the fighters permanent record both with the A.B.C. (Association of Boxing Commissions) database and the Fight Fax database….When a commission pulls the Fight Fax and looks up a record, we can see right here and we can make sure they are not contracted for less than that amount of weight

Fights between dehydrated opponents following Rapid Extreme Weight Loss practices are one of the greatest dangers in MMA, a sad irony considering weight classes are designed to protect fighters.  Foster’s efforts should be encouraged by all stakeholders interested in the long term well being of the combat sports landscape.

 

Ontario Plans to Legalize ammy combat sports

Since last year I have been pressing Ontario for answers about if or when they will exercise their section 83 Criminal Code powers to legalize amateur MMA and other non-Olympic combat sports.

Ontario has finally provided a substantive reply and the Province advises that they plan on legalizing amateur MMA along with  many other combat sports. Specifically Steve Harlow of Ontario’s Ministry of Tourism, Culture and Sport has advised that:

For the purposes of Section 83 of the Criminal Code, the Ministry of Tourism, Culture and Sport proposes that the following amateur combative sports be designated:

 

 

- boxing
- jiu jitsu
- judo
- karate
- kickboxing
- mixed martial arts
- taekwondo
- wrestling
- wushu

You can find a copy of Harlow’s full letter here which seeks feedback from all interested in the Combat Sports community:

Ontario Amateur Combat Sports Proposed Action

The Ministry is seeking stakeholder feedback until December 8 and the formal regulations are expected shortly thereafter.

BC Athletic Commission Logo

The office of the British Columbia Athletic Commissioner, who oversee various amateur and professional combat sports in the Province, is looking to overhaul and finalize their rules relating to amateur MMA, Pankration, Kickboxing, Muay Thai and Combat Sports Tournaments (events where athletes participate in more than one match during the event).

The BCAC has put together a Draft of the proposed rules for each of these respective sports which can be found here.

 

BCAC Draft New Amateur Kickboxing Rules

BCAC Draft New Amateur MMA Rules

BCAC Draft New Amateur Muay Thai Rules

BCAC Draft New Amateur Pankration Rules

BCAC Draft New Amateur Tournament Rules

Prior to finalizing these rules the BCAC is looking for feedback from the combat sports ccommunityand other interested parties.

All interested parties are invited to email thoughts and suggestions on how to improve the proposed rules to Athletic.Commissioner@gov.bc.ca.

The deadline for submissions is November 28, 2014.

The Commissioner will review suggestions before finalizing and posting updated rules for use in amateur combat sports. It is anticipated that final rules will be posted in early 2015.

Until new rules are posted, the current versions remain in effect.

Fightland reports that the UFC middleweight title bout between Vitor Belfort and Chris Weidman which initially was scheduled to take place in Nevada is being moved to California.

One issue, however, is that Vitor Belfort is under a conditional licence with the Nevada State Athletic Commission and a move to California puts him in breach of his licence which can pose regulatory problems for licencing in California.

Here’s the background – Belfort failed a random drug test in Nevada in February of this year testing positive for testosterone levels above normal even for those with Therapeutic Use Exemptions (which Belfort did not have with Nevada at the time).   When Belfort finally applied for a Nevada licence in July, 2014 this drug test came back to haunt him with the Commission placing conditions on his licence.

During the application process Belfort tells the Commission “I promise I will not fight anywhere else before I fight here in Nevada.  Anywhere.  I promise you guys.  Finally I would like the Commision to know that the UFC has the championship fight for me in December here in Las Vegas, I would hope the Commission would grant me the licence today“.

The NSAC took this promise to heart and imposed it as a strict condition of his licence which was granted with the following terms:

1. There is not to be a fight before December, 2014

2. The fight is to take place in Las Vegas and no other jurisdiction

3. Belfort is to comply with all reasonable drug testing, at his expense.

Leaving aside the ridiculousness of this condition (a licence should be based on merit, not based on promising to have a big money fight in the Commission’s back yard) by breaching the condition Belfort’s licence is effectively retroactively denied.  If Nevada took this position, NAC 467.087 would apply and Belfort would be a person who was denied a licence and be banned from seeking a licence until July of 2015 putting California in the unenviable position of licencing a fighter who was prohibited from applying for a licence in another jurisdiction.

The loophole, however, may come under Nevada’s Rule 467.100 which holds that “a license is valid for the remainder of the calendar year for which it is granted“.  If Nevada flexes their muscle Belfort and California can argue that the licence simply expired and that Belfort never breached the condition.  As demonstrated by the Chael Sonnen and Wanderlei Silva incidents, the NSAC has a history of pushing the boundaries of their jurisdiction.  If they do so again the UFC middleweight title bout can get caught up in a regulatory mess.

 

Update October 24, 2014 - This week UFC Executive Lawrence Epstein provided an interview addressing the situation justifying their actions stating “we’re not in the drug testing business“.  This quote, if anything, does not help the UFC’s position but in fact highlights the need of why the organization should have received medical advice before going public with the test results and stating that Le violated the UFC’s PED policies.

________________________________________________________________

After self-regulating UFC Fight Night 48 in Macau the UFC implemented drug tests of Cung Le.  According to a Zuffa press release  Le “tested positive for an excess level of Human Growth Hormone” and was initially suspended for 9 months and shortly thereafter the suspension was unilaterally raised to 12.

After media scrutiny the UFC agreed to allow Le to arbitrate the decision.  Before the hearing Zuffa rescinded the suspension acknowledging that they had received ‘medical advice‘ suggesting that the test results did  “not prove that he took performance-enhancing drugs before the August 23rd bout.

Le vehemently denied taking HGH throughout the ordeal and his reputation was undoubtedly tarnished following Zuffa’s initial press release.  The question now is did the press release cross the line into defamation and if so, will Le take legal action?

Generally, for a defamation lawsuit to succeed the Plaintiff  must prove

(1) a false and defamatory statement  

(2) an unprivileged publication to a third person

(3) fault, amounting to at least negligence

(4) actual or presumed damages

If the defamatory communication imputes a “person’s lack of fitness for trade, business, or profession,” or tends to injure the plaintiff in his or her business, it is deemed defamation per se and damages are presumed.

Zuffa’s statement clearly struck at the heart of Le’s fitness in his profession so damages can be presumed.  The key question is was their initial press release false?  Here is the statement in its entirety with the key part in bold-

UFC middleweight Cung Le tested positive for an excess level of Human Growth Hormone in his system following his fight at UFC Fight Night in Macao, China on August 23. Due to his positive test result, Le was suspended by the UFC and notified that he violated the UFC Fighter Conduct Policy and Promotional Agreement with Zuffa, LLC. The UFC has a strict, consistent policy against the use of any illegal and/or performance-enhancing drugs, stimulants or masking agents by our athletes. Le will serve a nine-month suspension and, at its conclusion, will need to pass a drug test before competing in the UFC again.

The test results were flawed according to anti-doping scientist Dr. Don Catlin who stated that “I think (the test done by the UFC) is useless. I wouldn’t pay any attention to it all“.  The test arguably did not reveal ‘an excess level‘ of HGH as the test was taken “following his fight” and HGH in blood “can increase 10‐fold during prolonged moderate exercise”. So if the levels were increased from resting but consistent with the findings one can expect after a rigorous MMA bout the statement may be false.

If Zuffa failed to obtain ‘medical advice‘ before issuing their initial statement negligence can be made out.

Le has two years to take legal action under Nevada law.  Given that he is at the twilight of his career it would not be surprising if he turns to the courts to seek damages for the harm this has taken on his reputation.

While the UFC can be applauded for implementing PED testing in jurisdictions without formal Athletic Commissions, the teachable moment here is that PED testing is a complex undertaking and is best left to an independent, arms length and experienced third party.

When Zuffa or their commercial distributor (Joe Hand Promotions) sue for piracy of UFC Pay Per View products in the US they usually rely on cable and satellite signal theft legislation.  These laws often allow them to recover, in addition to damages, their legal fees from the opposing parties.  When their lawsuits fall short, however, defendants don’t enjoy equal privileges in recovering lawyer fees as demonstrated in reasons released earlier this month.

In the recent case (Joe Hand Promotions, Inc v. Soto) the Defendants were sued for alleged piracy of UFC 128.  The lawsuit was dismissed when Joe Hand failed to comply with the Court’s scheduling order.  The Defendant spent over $9,000 in attorney fees in successfully defending the lawsuit.  They asked the Court to award these but District Judge Winmill dismissed the request finding the attorney fee remedy is a one way street typically only available to the Plaintiff’s.  In finding that the remedy was not available to Defendants absent evidence the Plaintiff acted “in bad faith, vexatiously, wantonly, or for oppressive reasons” the Court provided the following reasons:

Under both 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii), awards of attorney fees are limited to “an aggrieved party who prevails.” Other districts have determined that a defendant is not an “aggrieved party” within the meaning of the statutes and that nothing within the Cable Act statutes authorizes an award of attorney fees to a prevailing defendant. VJC Productions., Inc. v. Kydes, 903 F. Supp. 42, 43 (S.D. Ga. 1995); Kingvision Pay-Per-View, Ltd. v. Manente, 1:05CV00280 OWW SMS, 2006 WL 120141 (E.D. Cal. Jan. 12, 2006); Joe Hand Promotions, Inc. v. Nekos, 96-CV-706 (FJS), 1998 WL 238619 (N.D.N.Y. May 5, 1998). As reasoned by the court inVJC Productions:

Having authored a “two-way street” fee-shifting statute in the past, 42 U.S.C. § 1988, Congress certainly knew how to enact the same component in 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii). “Where Congress knows how to say something but chooses not to, its silence is controlling.” In re Haas, 48 F.3d 1153, 1156 (11th Cir.1995). By limiting these Cable Communications Policy Act fee-shifting statutes to an “aggrieved” party, rather than a mere “prevailing” party (under which a defendant may recover fees under 42 U.S.C. § 1988), Congress signaled its intention not to authorize fee awards for defendants in Cable Act cases.

903 F. Supp. at 43-44. The Court agrees with the reasoning in VJC Productions and, likewise, holds that 47 U.S.C. § 553(c)(2)(C) and § 605(E)(3)(B)(iii) do not authorize an award of attorney fees to a prevailing defendant.

Welcome UFC Central Listeners

Posted: October 16, 2014 in Uncategorized

UFC Central Logo

 

 

 

 

Earlier this week I had the pleasure of making an appearance on UFC Central Radio with Showdown Joe Ferraro along with UFC Bantamweight Mitch Gagnon and Fox Sports MMA writer Marc Raimondi, discussing some of the latest legal topics addressing 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:

Piracy Lawsuits in MMA

Ryan Ford Fighting With a Pre-Existing Broken Arm

Nova Scotia Fighter Pay Law

Manitoba Legalizes Amateur Combat Sports

Promoter Liable After Fighter Fails Pre Bout Drug Test

Prince Edward Island Legalizes Amateur Combat Sports

Weight Cut Reform in MMA

In the latest UFC Pay Per View prosecution to reach judgement following alleged event piracy by a commercial establishment, $18,900 in damages plus attorney’s fees were awarded by the US District Court, S.D. Texas, Houston Division.

In this month’s case (Joe Hand Promotions, Inc. v. Dadson) the Defendant was sued after displaying UFC 124 in their establishment without first paying the commercial sub licence fees to the Plaintiff.  The Plaintiff sued and obtained default judgement.  In finding total damages of $18,900 were appropriate District Judge Gray Miller provided the following reasons:

…To establish liability, plaintiff need only show that 1) the Event was exhibited in defendants’ establishment and 2) plaintiff did not authorize the particular exhibition of the Event. Id. Plaintiff’s pleadings establish both of these elements. Dkt. 1 at 2-3.

47 U.S.C. § 605(e)(3)(C)(i)(II) allows courts to award statutory damages to a plaintiff in an anti-piracy case of at least $1,000 and no more than $10,000, as the court considers just; § 605(e)(3)(C)(ii) allows courts to award additional damages for willful behavior up to $100,000; § 605(e)(3)(B)(iii) mandates that courts award reasonable attorneys’ fees and full costs to the party who prevails; and § 605(e)(3)(B)(i) allows courts to grant reasonable temporary and final injunctions to prevent or restrain violations of the law. Plaintiff has requested an award of statutory damages against each in the amount of $10,000; additional damages in the amount of $50,000; attorneys’ fees equal to one third of the recovery or $1,500; pre- and post-judgment interest; and a permanent injunction enjoining any future exhibition of unauthorized or unlicensed programs in violation of § 605. Dkt. 11 at 11.

Plaintiff is entitled to recover the following awards against defendants, jointly and severally, plus post-judgment interest at the rate of .11 percent annually from the date of this judgment until it is paid. Pre-judgment interest will not be paid. The court finds that $5,000 is appropriate to compensate for the violation of § 605. Plaintiff has produced evidence that the Gold Coast Lounge could hold approximately 100 people. Dkt. 1, Ex. A at 30-31. Plaintiff could have charged an establishment of this size $1,100 to exhibit the Event. Dkt. 1, Ex. A at 33. An additional $3,900 is reasonable for statutory damages to deter future violations. Further, $10,000 will be awarded for defendants’ willful actions. Attorneys’ fees will be awarded in the amount of $1,500, because the court finds that six hours of work at a blended rate of $250 per hour is reasonable. Dkt. 11, Ex. B at 6. Finally, the court finds that plaintiff’s request for an injunction pursuant to § 605(e)(3)(B)(i) is reasonable to “prevent or restrain violations” of §605(a) and grants it.