Today I had the pleasure of making an appearance on the Fight Network’s MMA Meltdown with Gabriel Morency discussing some of the latest legal topics in combat sports.   You can find the full interview here:

I’d like to thank Gabriel for having me as a guest.

For those of you visiting here for the first time after listening welcome!  For your convenience here are some quick links to the topics we touched on in the interview.

Nate Diaz Vaping Tweet

In the aftermath of his UFC 202 re-match against Conor McGregor, Nate Diaz was quick to give a back stage interview reportedly vaping CBD Oil.

Cannabinoids are banned in-competition both by the Nevada State Athletic Commission and by the United States Anti Doping Agency who each have jurisdiction over potential competitor doping for this event.  The 2016 WADA Prohibited List defines these as follows:

  • Natural, e.g. cannabis, hashish and marijuana, or synthetic delta 9-tetrahydrocannabinol (THC)
  • Cannabimimetics, e.g. “Spice”, JWH-018, JWH-073, HU-210.

Despite the ban, and despite the ingestion of a substance mere minutes following the bout Diaz’s vaping may not violate the prohibition.

Both the NSAC and USADA generally use World Anti Doping Agency standards when it comes to the in-competition marijuana ban.

WADA has the following definition of in-competition ingestion:

In-Competition: Unless provided otherwise in the rules of an International Federation or the ruling body of the Event in question, “In-Competition” means the period commencing twelve hours before a Competition in which the Athlete is scheduled to participate through the end of such Competition and the Sample collection process related to such Competition.

USADA uses a similar definition:

In-competition refers to the period commencing twelve hours before a competition in which the athlete is scheduled to participate through the end of the competition and the sample collection process related to the competition.

The NSAC, when debating harsher (and consistent) anti-doping penalties published this document implying they follow (and will continue to follow) the WADA in-competition definition:

We will continue to follow WADA’s definitions, particularly the definition of “In‐competition.

However, for some reason the UFC-USADA custom tailored anti-doping contract changes this definition to include a period of up to 6 hours post bout reading as follows:

“In-Competition” means the period commencing six hours prior to the commencement of the scheduled weigh-in and ending six hours after the conclusion of the Bout.

So, assuming Nate Diaz provided a post bout sample to the NSAC (assuming they wished to collect one) before vaping and assuming that sample comes back negative than this escapade will not amount to an NSAC  anti-doping violation.

Interestingly, if USADA wishes to collect a sample in the hours following the vaping Diaz’s choice may prove problematic.  It is possible that USADA can interpret the Cannabinoid ban to not include CBD but this would be peculiar as CBD is clearly a Cannabinoid.

It is also worth noting that a failed test is not needed for an anti-doping violation.  As Mirko Filipovic learned, a mere admission can be sufficient under the USADA policy.  This was also demonstrated by the ongoing Lyoto Machida suspension.

 

Adding to this site’s archives of combat sports safety studies, The Journal of Sports Health published a data review concluding that MMA combatants suffer an in competition injury rate between 22.9 and 28.6%.

In the recent study the authors reviewed 35 years of publications detailing injury rates in MMA or thier component sports.  The data revealed that “The majority of studies on MMA injuries evaluate those sustained during competition, which range in incidence from 22.9 to 28.6 per 100 fight-participations. Striking-predominant disciplines such as boxing, karate, and Muay Thai have high rates of head and facial injuries, whereas submission-predominant disciplines such as Brazilian jiu-jitsu, judo, and wrestling have high rates of joint injuries.

The study is titled “Injuries Sustained by the Mixed Martial Arts Athlete” and the full article can be purchased here.

As recently discussed, there is a race underway for organization efforts for professional MMA fighters with the long-standing Mixed Martial Arts Fighters Association taking shots at the newly minted Professional Fighters Association.

The PFA held their first press conference and fired back not only at the MMAFA but also at the UFC.

I will repeat my previous comments that fighters should have a simple choice, do they wish to have collective representation or not?  If so there should be one organization speaking for them.  Big Tent politics.  Egos, personal agendas and in-fighting should not play a role.  All stakeholders should get on the same page to ensure the best representation of fighters interests and hopefully efforts to do so are going on behind the scenes.

In any event, the PFA’s press conference was insightful and should be viewed in full for anyone interested in the busiess of MMA.  HT to Submission Radio for the upload


 

In 2015 the Nevada State Athletic Commission revealed that Jon Jones tested positive for cocaine metabolites in a random out of competition drug test taken 30 days prior to a schedeld title defense at UFC 182.

At the time the NSAC adopted WADA standards which do not ban cocaine out of competition leaving the regulator with no sanctioning options for the finding and with a potential legal issue on their hands for exceeding their jurisdiction by testing for a non-prohibited substance.

The NSAC appears to be responding to this by overhauling their regulations expressly making cocain, along with other stimulants, banned at all times, not just in competition. (shout out to Twitter’s @dimspace for the find).

Specifically, proposed NSAC NAC-467.850(1)(f) reads as follows:

NSAC Stimulant Reg

Section s-6 of the 2016 WADA Prohibited List lists not only cocaine but all of the following stimulants which, if this regulation passes, will be banned year round for all licenced fighters in Nevada:

WADA Stimulant List

As @dimspace notes, these changes are problematic as they create friction among competing anti-doping schemes with little explanation for the rift with WADA.  Whatever reason for these proposed changes, all fighters licenced to compete in Nevada must do their due diligence and ensure they can comply with the NSAC’s contemplated new standards.

dimspace tweets

 

 

When the Criminal Code was amended in 2013 paving the way for Mixed Martial Arts to be legalized in Canada other sports were disrupted in the wake of legal change.  In particular, professional kickboxing was left in legal limbo with some Provinces taking the position that the overhauled Criminal Code prohibited the legalization of the sport.

The Senator who drafted the Criminal Code amendments expressed concern that interpreting the law as prohibiting professional kickboxing “defies logic”.  Despite this there is fragmentation across Canada about the sport’s potential legality.

Fortunately, at a recent Conference of Federal-Provincial-Territorial Minsters responsible for Sport, Physical Activity and Recreation consensus was reached that nationwide clarity is needed and a press release indicates that “they endorsed the proposed amendments to section 83 of the Criminal Code relating to Prize Fights.”

These ‘proposed amendments’ have yet to be publicly released as their exact language is being refined.  I have it on good authority, however, that the language includes effort to make it clear that Provinces have the express power to legalize professional kickboxing if they wish and that many Provinces are prepared to exercise this power once clarified.

I will update this article as more details come to light however it looks like it is just a matter of time until promotions such as GLORY and BellatorKB will have the Canadian door opened for them.

 

As recently discussed there is a race for control of Mixed Martial Arts fighter organization efforts with the longstanding Mixed Martial Arts Fighters Association expressing concern about the Professional Fighters Association bursting onto the scene after the UFC’s $4 Billion sale.

The MMAFA has now published the below press release urging for fighters to join their organization.  The one thing clear from recent developments is that a rift appears to exist in organization efforts and promoters, not fighters, benefit from this reality.  As previously discussed, if fighters are going to enjoy any success in organizing,  Big Tent politics will be key. Stakeholders must be on the same page to ensure the best representation of fighters interests and hopefully efforts to do so are going on behind the scenes.

August 15, 2016

Statement from the Mixed Martial Arts Fighters Association (MMAFA) Organizing Committee

My brothers and sisters, fellow professional mixed martial artists, you’ve probably noticed great changes coming to the sport of mixed martial arts (MMA) over the past few months. The question we all have is whether these changes will serve to benefit fighters or not. The MMAFA is actively engaged in ensuring these changes benefit fighters and the time has come to ask you to join us to make sure that happens.

Over the years, the MMAFA has been involved in lawsuits against promotions including KOTC, Pride, and the effort to free fighters from EliteXC. Each of these efforts were resolved successfully in favor of the fighters. Currently, our members are the Plaintiffs spearheading the antitrust lawsuit against the UFC in an effort to restore competition to the market and to provide damages to all proposed class members.

The MMAFA is also leading the charge to change federal law by enacting the Muhammad Ali Expansion Act, which will extend protections already enjoyed by boxers to all combat sports. We have appeared numerous times on behalf of our fellow athletes in front of the Association of Boxing Commissions and individual state commissions to support improved conditions for fighters. We have also supported various state efforts seeking changes in laws favorable to fighters. We aggressively utilize the tools and resources at our disposal, and have been laying the groundwork for improvements for all fighters for more than 10 years.

We do not seek to destroy, nor are we anti-promotion. We are vigorously pro-fighter in our actions and campaigns. We are learning, complaining to press or on social media will not lead to effective change. We are organizing to effectively respond to our current condition as professional MMA fighters in the most effective way possible and in business like fashion. Our successes will enable all aspects of the MMA industry to thrive, leading to better equipped, healthier athletes competing in a more competitive marketplace.

Our record speaks for itself—we have been paving the road for improvements for all our fellow athletes for years. We have an experienced and dedicated executive team that has provided incredible support to our efforts for years. We cannot thank them enough, and we thoroughly trust their advice and counsel. The MMAFA, however, is a democracy, comprised of member fighters and trainers who can change the direction of MMAFA and/or replace executive committee members. We, as professional MMA fighters and trainers who are members in the MMAFA determine our own fate.

With our success and news of the UFC’s sale we are likely to see others offer to assist in organizing a “fighter’s union.” Of course they will not have similar knowledge of the industry, nor will they have much of a track record looking out for MMA fighters. But they will still be offering their assistance . . . for a price. Further efforts to organize fighters only lead to delays. In the coming days and weeks, you will likely receive lawyer solicitations, union solicitations, and solicitations from your own agents to get involved in organizing efforts. We urge you to politely decline all such requests. Together, in one unified movement, we will succeed.

To all agents wishing to get involved in organizing the MMAFA, we urge you to encourage your fighters to contact the fighters involved in our effort, or any member of our executive team. We have learned from the examples of other sports who have successfully organized, and who prohibit agents from involvement in the operations of the players associations. Agent efforts to organize and agent involvement in association operations suffer from two fatal conflicts. First, agents vigorously compete with each other, creating divisions preventing successful formation and operation of the association. Second, agents appropriately view all issues through the lens of “my clients.” Association efforts, on the other hand, must be viewed through the lens of all member fighters.

Agents can greatly assist in our efforts moving forward by supporting our efforts to enact the Muhammad Ali Expansion Act, H.R. 5365, by signing our petitions and voicing your support for needed changes in the sport we are all involved with together. When we succeed, the agents will benefit greatly as purse levels and endorsement opportunities will dramatically increase leading to increased earnings for our agents. As professional fighters, our careers are short, in contrast to an agent’s career that can last decades enabling our agents to reap the benefits of our successes long into the future.

Please join all of us and the MMAFA. Together, we will succeed in securing desperately needed protections for our fellow athletes, and also enable our sport to reach its natural potential.

MMAFA Organizing Committee

Important reasons for judgement were released earlier this month limiting the scope of the laws most often used to prosecute commercial Pay Per View piracy.

In the recent case (Joe Hand Promotions, Inc v. Spain) the Defendant, who operated a martial arts gym, purchased UFC  169 and displayed the program “at a social gathering that was taking place at the establishment outside the normal operating hours.” The Defendant paid the residential fee and  displayed the program via the Internet using an Xbox device.

The Plaintiff sued arguing that as a commercial establishment the Defendant needed to pay the commercial sub licencing fee.  The lawsuit was struck down with the Court noting that the Defendant lawfully purchased the program but more importantly noting the legislation the Plaintiff relies on cannot be relied on in a piracy prosecution where the program is obtained via internet stream.  In dismissing the lawsuit Senior District Judge Stephen McNamee provided the following reasons:

The Court finds that Sections 605 and 553 are inapplicable in this case. These statutes, originally enacted in 1934, were intended to prevent pirate interception of radio, satellite, and cable signals. Here, Defendants purchased the Program from UFC.tv, an authorized distributor of the Program. Even if sections 605 and 553 did extend to Internet streaming, there is no evidence of unauthorized signal reception or interception, nor is there evidence that the Program was used for an unauthorized purpose despite being shown at a non-residential venue. Plaintiff does not meet its burden of proof under either statute. See Celotex, 477 U.S. at 323-24.

According to the contract between UFC and Defendant, Defendant is the “exclusive distributor of commercial closed circuit television of the Events” but does not have the exclusive rights to show the Program over the Internet.[5] (Doc. 32-4 at 10.) UFC retains the rights to show this and other similar programs “via any and all means and modes of pay-per-view television, Internet, wireless, broadband, and all other means or modes . . .” (Id. at 11.) If anything, issues of breach of contract and licensing may exist, but those are matters beyond the scope of this lawsuit. Therefore, because the Court finds that there are no genuine issues of material fact and the Internet defense is valid, Defendants are entitled to judgement as a matter of law.

KArate contest image

When Section 83 of the Criminal Code was overhauled in 2013 to allow Mixed Martial Arts to be legalized in Canada other combat sports were impacted by the legislation.  The law made it clear which professional and amateur combat sports were legal.  In large part the legislation defers to Provinces.  A default, however, are Olympic Combat Sports.  Unless Provinces say otherwise amateur versions of these sports are automatically legal under the Criminal Code.

Over the years many Provinces have exercised their Section 83 Criminal Code powers noting which sports were legal and which were not.  Other Provinces, most notably Ontario, have not yet exercised their powers since section 83 was overhauled making the Criminal Code the default for amateur combat sports.

This brings us to Karate.  Earlier this month Karate was officially added as an Olympic Sport.  This move makes amateur Karate contests legal across Canada with no Government red tape unless a Province says otherwise.

What is interesting is just which variations of Karate are legal.  Arguably all forms now are.  The Olympic Exception in the Criminal Code reads as follows:

A prize fight….does not include…. a contest between amateur athletes in a combative sport with fists, hands or feet held in a province if the sport is on the programme of the International Olympic Committee or the International Paralympic Committee and, in the case where the province’s lieutenant governor in council or any other person or body specified by him or her requires it, the contest is held with their permission

Karate, as adopted by the Olympics, is basically restricted to point sparring and kata.  Other ‘harder’ styles of karate such as Kyokushin, will not be represented in the Olympics however they are arguable no longer a crime.

The argument is as follows – Karate is now a sport “on the programme of the IOC“.  The Criminal Code does not expressly say that the rules must be used for the sport to be legal are those used by the IOC.  It simply needs to be a sport on the programe  of the IOC.  To the extent that a Kyokushin practitioner can argue in good faith that their contest is indeed Karate a prosecution under this section of the Criminal Code would be an uphill battle.

This specific sub-section of the Criminal Code has yet to be judicially interpreted so no one can say for certain how it would play out if a Kyokushin practitioner was charged for hosting an illegal ‘prize-fight’, what is clear, however, is that such practitioners have a much stronger defence if they wish to test the boundaries of the Criminal Code.

 

For the better part of a decade lawyer Rob Maysey has been pushing for a more equitable labor landscape for professional MMA athletes through the Mixed Martial Arts Fighters Association.  Mayesey’s efforts have included lobbying for State legislative reform, Federal legislative reform, an anti-trust lawsuit against the sport’s biggest promoter and vocally creating awareness of current contractual conditions for the athletes.

In the wake of the recently reported $4 Billion sale of the UFC, others are stepping into the mix.

Yesterday it was revealed that New York lawfirm Lichten and Bright hope to be a player in the effort to unionize fighter with the lawyers noting

We are labor lawyers with a combined 40 years of experience representing unions and people seeking to organize unions…We are not associated with past efforts to unionize UFC fighters. We believe that legalization in New York, together with the explosive growth in the popularity and revenues of the UFC in recent years, and recent sale of the UFC, present a unique opportunity for the UFC’s athletes to join together and create a union or association that will put them on par with other professional athletes competing in major sports leagues, both financially and in terms of the influence they have over how their sport is run and its athletes are treated.

Today, as first reported by MMAFighting’s Marc Raimondi, another organization was launched with a view towards organizing fighters.  The Professional Fighters Association launched their website and Twitter handle and explain as follows:

Historically, owners have taken advantage of the athletes until they created a unified association to combat the owners’ greedy ways. Professional sports history shows how the formation of an association to collectively bargain employment terms has dramatically increased the compensation and working conditions of an organized membership. These associations have helped players financially and given them control over their careers and their life after they finish competing. The MMA business is a billion dollar industry where all fighters, even the ones at the top, receive only a fraction of what they deserve.

This will continue unchecked until there is a unified front on the part of the fighters in order to level the playing field and stop those at the top from taking advantage of the fighters in the Octagon. Remember – the fighters generate the revenue.

Where does this all leave the fighters?  Probably fragmented and confused.

For one thing the competing groups appear to have different means in mind.  The MMAFA seek to form an association whereas the New York lawfirm and the PFA seem to have a union in mind.  Reporter John Nash did a good job explaining the difference in this 2015 article.

As the fight for organization takes hold solidarity will be key.  All organizations must have the same goal in mind which is improved conditions for fighters.  Fighters should have a simple choice, do they wish to have collective representation or not?  If so there should be one organization speaking for them.  Big Tent politics.  Egos, personal agendas and in-fighting should not play a role.  All stakeholders should get on the same page to ensure the best representation of fighters interests and hopefully efforts to do so are going on behind the scenes.