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

Is This Legal? A Quick Review

Posted: August 20, 2014 in Uncategorized

Is this legal image

I have finally had a chance to read Is this Legal, a book written by UFC co-founder Art Davie.  The book accounts “how Davie started the Ultimate Fighting Championship, and launched mixed martial arts” in the US.

The 260 page book is a great read for any fan of combat sports. I was 16 when UFC 1 was broadcast on PPV and have been following the sport for over twenty years.   I thought I knew a lot about the history of the sport but Is This Legal was quick to correct this view.  Just as a first grappling lesson quickly teaches strikers that they have a lot to learn about fighting, Is This Legal teaches combat sports fans that they have a lot to learn about the true history of UFC 1.  Well done Art.

 

 

In my ongoing efforts to highlight legal action taken against those accused of unlawfully accessing MMA Pay Per View products, reasons for judgement were released this week in two separate prosecutions addressing such claims.  Both resulted in modest damage assessments in the face of a lack of evidence of commercial advantage by the Defendants. 

In the first case (Joe Hand Promotions v. Plummer) the Defendant pub owner was sued for unlawfully exhibiting UFC 142 without purchasing a commercial exhibition licence.  The Defendant failed to respond to the suit and default judgement was obtained.  Joe Hand sought maximum statutory damages of $10,000 along with enhanced damages of a further $100,000.  The Court found damages in a far more modest range were appropriate given “the small size of the crowd viewing the Program, and the fact that Defendant is not a repeat offender

The Court awarded statutory damages of $3,000, attorney fees of $3,373 and outright dismissed the claim for enhanced damages.

In the second case (Joe Hand Promotions v. Lorenzana) the Defendant was sued for unlawfully exhibiting UFC 155 in a commercial establishment without paying for commercial licencing fees.  Again default judgment was obtained and the Plaintiff sought significant statutory and enhanced damages.  In finding total damages of just over $2,000 were more appropriate the Court provided the following reasons:

As to Plaintiff’s request under § 553(c)(3)(B), enhanced damages of no more than $50,000 may be warranted if the court finds “that the violation was committed willfully and for purposes of commercial advantage or private financial gain.” The Ninth Circuit has not set forth controlling factors for the determination of when enhanced damages are appropriate in this context, but various factors specific to this unique line of cases have been considered by district courts. These include the “use of cover charge, increase in food price during programming, presence of advertisement, number of patrons, number of televisions used, and impact of the offender’s conduct on the claimant.” Concepcion, 2011 U.S. Dist. LEXIS 60607, at *10. Enhanced damages have also been awarded when the defendant has violated sections 605 or 553 on previous occasions. See J & J Sports Prods., Inc. v. Paniagua, No. 10-CV-05141-LHK, 2011 U.S. Dist. LEXIS 33940, at *5-6, 2011 WL 996257 (N.D. Cal. Mar 21, 2011).

In this case, Defendant did not charge a cover to patrons nor is there any evidence that Defendant increased prices or required food or drink purchases during the Event. The relevant numbers are similarly unimpressive for the purpose of enhanced damages; two television sets displayed the Event to 8 people. None of these facts suggest that commercial or private financial gain was Defendant’s motivation in displaying the Event.[3] In fact, what Tate described is more likely than not just a normal evening at the Castroville Inn.[4]

Plaintiff points out that Defendant was found to have violated § 605 in another action, J & J Sports Productions, Inc. v. Lorenzana, Case No. 5:13-cv-05554 BLF, and provides a supplemental declaration in support of its request for enhanced damages. But while other courts have awarded enhanced damages under similar circumstances, this court is not persuaded that a significant “repeat offender” enhancement is appropriate here. Defendant’s conduct in Plaintiff’s two actions is more accurately described as “simultaneous offense” — the two illegal interceptions occurred in the same month (December, 2012), the two lawsuits were filed in the same month (December, 2013), and Defendant was served with process for both lawsuits on the same date and at the same time (February 10, 2014, at 6:40 p.m.). This is therefore not a case where the same defendant, having been previously notified of impermissible activity, disregards that notice and offends again. Moreover, Defendant’s conduct here had much less impact on Plaintiff than the conduct described in the other case, which involved a well-known boxer and an event displayed to 50 people at the Castroville Inn. Accordingly, the court finds that Plaintiff is entitled to $950 in enhanced damages — the value of the commercial license to air the program. This amount properly accounts for the broadcast’s minimal impact on Plaintiff.

Last week a British Columbia jury awarded former UFC fighter Jason Day approximately $340,000 following what turned out to be a career ending motor vehicle collision.

Day was struck on his bicycle by an SUV and sustained chronic soft tissue injuries to his knees and ankles.  While the injuries did not prevent him from pursuing many endeavors they proved too much for the high physical toll of MMA and he never fought again.    John Cameron, Day’s lawyer, confirmed that the jury awarded $50,000 for ‘diminished earning capacity’ which reflected the financial realities of the lost career to Day.

The jury was far more robust in their non-pecuniary assessment (money for pain and suffering and loss of enjoyment of life) and assessed damages for this loss at $325,000, a figure near the high end of what can be awarded in Canada, likely in an acknowledgement of the great loss of a sport Day dedicated many years of his life to.  The global award was then reduced 10% to account for a finding of contributory negligence on the part of Day.

It is unclear if ICBC (the insurer for the at fault motorist) is going to appeal.  The non-pecuniary award is vulnerable to appeal as it is close to Canada’s ‘rough upper limit’ which is reserved typically for catastrophic injuries and currently is at about $360K.

Hopefully there is no appeal and the insurer respects the jury’s assessment for the non-pecuniary loss of an MMA career.

________________________

Update September 10, 2014 – Yesterday Jason Day confirmed via twitter that there is indeed an appeal being launched by the Defence insurer in this matter.  I will update this article if/when the appeal concludes.

UpdateAugust, 6, 2014 – Bleacher Report, who initially broke this story, has obtained correspondence between Sonnen’s lawyers and the Nevada Commission.

The legal arguments advanced largely mirror the below arguments and additionally point to recorded comments of NSAC Chairman Francisco Aguilar, where he agreed that Metamoris “is not subject” to the ban imposed on Sonnen.  Despite this the NSAC is reportedly not backing down and neither is Sonnen.

Here are copies of Sonnen’s lawyer’s letters to the NSAC

chairman-aguiilar-letter-08-01-2014

chairman-aguiilar-follow-up-letter-08-04-2014

It appears a game of legal chicken is going to take place.  If Sonnen competes and fines are issued, the Courts in Nevada will likely be asked to weigh in on this and ultimately decide who is right in this battle of wills.

_____________________________________________________________

Today it was rumored that the Nevada State Athletic Commission threatened to fine ‘retired’ MMA athlete Chael Sonnen $250,000 “per failed drug test violation if he competes at Metamoris“.  The problem?  They likely don’t have the right to do so.

By way of brief background, Sonnen was handed a two year suspension by the Nevada commission following multiple failed drug tests.  They could have fined him for his transgressions at that time but did not.  Instead they waived fines in lieu of an agreement that Sonnen would cooperate with the NSAC in addressing their PED policies and further secured his agreement that he would not ‘fight‘ in any other jurisdiction during the time of his suspension.

When Nevada realized that Sonnen was scheduled to compete at Metamoris , a professional grappling event hosted in California, it appears some considered this fighting triggering a breach of the secured agreement.  The problem with this, however, is that Metamoris likely cannot be considered a ‘fight’ under Nevada law.

Nevada was well aware they could not ban Sonnen from fighting in another jurisdiction.  Appreciating this, the NSAC was very careful in the wording of their penalty which was phrased as follows:

we will solicit Mr. Sonnen’s agreement that he will not fight in any other jurisdiction for that same period of time.”  Sonnen agreed to these terms.  The only question is whether competing in Metamoris can equal a ‘fight’ as defined in Nevada law thereby breaking this agreement allowing Nevada to reconsider their penalties.

The commission did not bother defining what they meant by fight.  The terns likely would be interpreted synonymously with the types of events the Nevada commission has the authority to regulate.  Under Nevada’s combat sports regulations the term ‘fight’ is not defined, instead the phrase ‘unarmed combat’ is used and is defined as follows:

boxing or any form of competition in which a blow is usually struck which may reasonably be expected to inflict injury.

The key for a non boxing event being captured by this definition is the word ‘blow’ which would be synonymous with strikes.  It is hard to see how Sonnen’s agreement could be violated by his participation in a grappling event which does not allow striking.

Lastly, there is a legal principle known as Contra Proferentem which basically means that any ambiguity in a contract is to be interpreted against the person that drafted the ambiguous phrase.  In the case of Sonnen, the stipulation that he not ‘fight’ in another jurisdiction was a term agreed to by Sonnen in essence creating a verbal contract.  The NSAC selected this term and failed to define it at the hearing.  The Commission should not be given the benefit of a broad interpretation of the term after the fact and the contra proferentum principle seeks to prevent such a result.

The Nevada commission, while perhaps not pleased with Sonnen’s intent to compete in a high profile event, in all likelihood lacks the power to reopen this matter and hit Sonnen with this threatened fine.