Does the MFC’s Ban on WMMA Violate Human Rights Legislation?

Posted: May 3, 2013 in Uncategorized
Tags: , ,

Alberta Human Rights Commission Logo

With MMA’s ever growing popularity comes a greater need to comply with legislative requirements.  This is clearly in the long term interests of the sport and will help accelerate mainstream acceptance.  With this in mind Mark Pavelich, the outspoken CEO of Canada’s longest running Mixed Martial Arts organization (the MFC), voiced recent comments worthy of scrutiny.

In an interview given earlier this week Mark reiterated his long held views that woman’s MMA has no place in his organization.

Mark is quoted as saying “And don’t forget too, I’ve always said ‘I’m never going to put female MMA in my organization.’…I personally will never have it. And it’s no disrespect to female MMA fighters, because I do have an overabundance of respect for them

His reason for this policy?  “it’s my only personal issue that I just don’t like to see females hitting each other. I really don’t, it’s maybe something weird in my brain, but I just don’t like the visual of that happening.

Now, we are all entitled to our views and not everyone is a fan of MMA or WMMA.  That said, can an Alberta fighting organization take such a stance?  Likely not given Section 7 of the Alberta Human Rights Act which stipulates that:

7(1) No employer shall
(a) refuse to employ or refuse to continue to employ any
person…because of gender

But can’t it be argued that the MFC is not an employer but instead an organization which obtains the services of independent contractors?  Probably not given the “broad, liberal and purposive interpretation” that Canadian Courts give to Human Rights legislation.  The Alberta Human Rights Commission provides the following expansive summary of “employment” situations in the Human Rights context:

Alberta courts have considered the definition of employment in human rights legislation in a number of cases including those cited below.1 In Cormier, the court defined an employment relationship as “any contract in which one person agrees to execute any work or labour for another.” In Bugis, the court stated that to employ is “to utilize.” Under human rights law, courts and human rights tribunals have found employment relationships in situations which are broader than conventional ideas of what is “employment.” Independent contractors, subcontractors, taxi drivers, army cadets and volunteers have all been found to be in employment relationships under human rights legislation and therefore protected against discrimination.

MMA and Woman’s MMA have been growing at an unprecedented pace with greater mainstream acceptance by the day.  MMA organizations hosting events in Canada would do well to stay with the times and the ever clearer defined boundaries regulating this sport.  As the UFC has demonstrated over the past 20 years, embracing legislation and regulation are not only good for the growth of the sport, WMMA is as well.

___________________________________________________________

Update May 5, 2013

The above post was republished, with my permission at Top MMA News.  As always, access to this wider audience generated a number of comments which prompted me to further add to the discussion.  I reprint my additional comments below.  If you are interested in this topic please feel free to visit the article there and weigh in on the topic.

Some interesting comments were also made on Twitter with Big John McCarthy and Showdown Joe Ferraro adding the following thoughts to this debate -

John McCarthy Twitter Comments

Showdown Joe Twitter comment

Thanks everyone for your comments. I appreciate the dialogue.

One point worth noting is most major leagues such as the NHL and NFL do not have ‘no woman allowed’ policies. If a female athlete could make the cut based on merit there is no internal barrier to participation.

Some valid points raised relate to issues other than gender justifying an organizations exclusion of WMMA. This is fair enough. If there is no market demand for the sport or if there is not sufficient depth in the sport for an organization to field a WMMA event that is one thing. It is quite another to justify the exclusion for the voiced reason of “I’m never going to put female MMA in my organization.’

Like it or not Human Rights Tribunals have a very far reach in Canada. Their reach is so far that they can even override freedom of speech if it is found to be discriminatory as recently held by the Supreme Court of Canada.http://www.theglobeandmail.com/news/national/supreme-court-ruling-upholds-limits-on-free-speech-in-case-involving-anti-gay-proselytizer/article9104862/

Given this reality it is important to appreciate that there is nothing unique about MMA that would exclude it from the jurisdiction of Human Rights legislation. Consider it this way – imagine an employer or a person who retains contractors stating that “I will never hire females for my (fill in the blank, plumbing, contracting, etc) company”. With the reason being that “its my only personal issue that I just don’t like to see females (doing this kind of work)” You would quickly have an employer in hot water.

I also appreciate the comments that MMA organizations deal with contractors, not employees. However, as discussed above, Human Rights Tribunals don’t use this as a barrier to their reach. Like it or not this is a real legal issues organizations in Canada can face.

Accepting this, the question is what can be done. I suggest that organizations keep an open mind to including WMMA when the business model can support this expansion instead of having a closed door policy to the issue.

Many on this forum will remember the rough road to acceptance that MMA has faced over the past 20 years. It’s a shame if many of the same individuals who paved the path for MMAs’s growth and public acceptance put up barriers for the growth of WMMA.

Comments
  1. […] Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  2. donna_seale says:

    Hi Erik. Thanks so much for this post! It’s not often (actually, never!) that two of my favorite subjects — MMA and human rights law — collide together in one discussion.

    I tend to agree with you that the position put forward by Mark Pavelich of the MFC — that being a public refusal to allow female fighters into his organization — is problematic from a human rights law perspective.

    You are quite right that because of the quasi-constitutional nature of human rights legislation in Canada, human rights commissions and tribunals take a very broad approach to the interpretation of their governing human rights statutes. It is also a general premise that any exemptions from the protections provided by human rights legislation must be clearly stated in order to be found to exist. And so, when it comes to determining whether a person can be classified as an employee of a business courts and tribunals interpreting human rights legislation will not apply restrictive tests like those found in our common law or in tax law. Instead, a court or tribunal will look at the entire nature of the relationship between the parties to determine whether there are sufficient markers to consider the complainant to be in the “employ” of the respondent — and there really are no limitations on the factors that can be considered. Given the MFC provides a gateway/opportunity for fighters to fight (or “work”) for money and any contract between the MFC and a fighter would likely oblige the fighter to perform services for the organization (by actually fighting in the promoted fight), there is a level of economic dependency that appears, at least on its face, to exist between a fighter brought into the MFC fold and the MFC that I think makes it arguable that their relationship could be seen to be employment-related.

    Section 7 of Alberta’s Human Rights Act, the provision dealing with a prohibition on discrimination in employment, is standard fare in Canadian human rights law. An employer cannot refuse to employ a person on a human rights ground. But, if you look further into section 7 you will see that this prohibition on discrimination does not apply “with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.” What this means is that an employer can establish a defence to discrimination if it can show its refusal to hire a person is based on a workplace rule or policy that is essential for the purposes of operating its business and cannot be changed to accommodate the protected needs of the potential employee in question without incurring undue hardship to the business.

    So, let’s get back to Mark Pavelich’s comments. Nothing that he says appears to disclose a business case for denying women entry into his organization. There is nothing in his comments that highlights any particular hardship that would befall the MFC if women fought under the MFC banner. He discloses nothing to suggest consideration has even been given to permit female fighters entry into his organization but that entry needed to be disallowed because of the impacts on the business. Rather, his “I’m never going to put female MMA in my organization” comment (his “workplace rule”) appears to stem from a personal dislike of seeing two women fight. Based solely on his comments, I think it would be extremely difficult to make a viable argument that “not being female” is a bona fide occupational requirement for entry into the MFC organization. Without that capability, the MFC would appear to be without a defence to a claim of discrimination on the basis of gender should a female fighter choose to bring one forward and should a human rights tribunal find the MFC to be an “employer” for the purposes of the law.

    Now, one thing I did want to point out is that I don’t think that making an employment discrimination claim is the only “angle” a female fighter could take in this situation. The Alberta Human Rights Act also contains a section (section 9) that prohibits a “trade union, employers’ organization or occupational association” from excluding a person from membership in the organization on the basis of gender (among other characteristics). None of these terms are defined in the legislation and, remember, the terms will be interpreted broadly based on what we’ve already discussed about how human rights law is interpreted by the courts. Given the MFC puts itself out as a fight promoter and an organization for fighters, and it even puts photos on its website of fighters “associated with” the business, I think it is arguable the MFC could be found to be a “professional association.” If that is the case, then excluding women from the organization could breach this section of Alberta’s Act as well.

    Those are my two cents on the subject! Thanks, again, Erik for writing this post. Having watched the first women’s bout in the UFC and observed the reaction of both the female fighters and the fans to the fight, I would hope the MFC will come to the realization that respecting human rights law is good for the fighters and good for business.

  3. […] ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  4. […] ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  5. […] ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  6. […] // // ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  7. […] ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  8. […] Earlier this year I dissected some comments made by Mark Pavelich who proclaimed that he “is never going to put female MMA in my organization.“ […]

  9. […] ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  10. […] ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

  11. […] ______________________________ Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. The article was re-printed with permission from his Canadian MMA Law Blog. […]

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