At UFC Fight Night 95 Roy Nelson unceremoniously kicked referee John McCarthy after a perceived late stoppage.  This upset the heavyweight who believes he had to then inflict unnecessary damage on his opponent.

The UFC has previously expressed a zero tolerance stance on aggression towards referees when they cut Jason High after he pushed a referee with company president Dana White stating as follows:

That Jason High kid got up and pushed a referee – he’s cut….I’m going to cut him…. You don’t ever, ever f——- touch a referee, ever. You’re done here. He’s been apologizing on Twitter, but he’s done.”

It is unclear why the UFC has not acted with equal swiftness against Nelson although issues of due process may explain inaction to date.

The UFC can take contractual action directly against Nelson for allegedly violating his promotional agreement with the company along with the UFC’s Fighter Conduct Policy.

Standard language in the UFC’s promotional agreements gives them broad language to terminate athletes who “materially breach, violate or are in default of any provision” of the contract.  These provisions are broad and include the following requirements:

Fighter shall conduct himself in accordance with commonly accepted standards of decency, social conventions and morals, and Fighter will not commit any act or become involved in any situation or occurrence or make any statement which will reflect negatively upon or bring disrepute, contempt, scandal, ridicule, or disdain to Fighter, the Identity of Fighter or any of Fighter’s Affiliates, Zuffa or any of its officers, managers, members, employees or agents.  Fighter’s conduct shall not be such as to shock, insult or offend the public or any organized group therein, or reflect unfavorably upon an current or proposed arena, site hotel, sponsor or such sponsor’s advertising agency, or any network or station over which a Bout is to be broadcast.”

This requirement, as expanded by the UFC’s Fighter Conduct Policy, goes on to expressly prohibit “violent, threatening or harassing behavior“.

Nelson’s actions likely breach these previsions which provide the UFC with the unilateral ability to impose sanctions.  The punishment options include “fines, suspension and secession of service“.  The policy does spell out due process rights for athletes including an arbitration process.

If the UFC does take action Nelson can argue that if his conduct did not amount to a breach of regulatory requirements then his actions do not amount to a breach of this policy although this would be a hard sell.  Nelson can also point to seeming inconsistent application of this policy with actions such as Fabricio Werdum kicking an opposing trainer failing to trigger UFC discipline.

Ultimately in-cage misconduct is best governed by Athletic Commissions who are tasked with overseeing the integrity of the sports they regulate.  Once due process plays out with respect to any regulatory consequences the UFC would be on firmer ground to pull the trigger on in-house sanctions.  The Brazilian Athletic Commission has been slow to take action with the regulatory saga apparently now playing out before Brazil’s Superior Justice Court of Sport.  For everyone’s sake hopefully this conduct is addressed by the Brazilian Commission in a fair and transparent manner.

 

Mild traumatic brain injury is sometimes referred to as an ‘invisible injury’ as there is often no objective evidence to help diagnose the damage done. Instead a diagnosis is made based on a host of subjective complaints.  Repetitive concussive and sub-concussive blows are linked to CTE.  This disease also cannot be diagnosed with certainty in living individuals and objective criteria demonstrating risk of this disease are lacking.

An interesting study was published in JAMA Neurology this month, however, showing promise that certain biomarkers may be “an objective tool to assess the degree of central nervous system injury in individuals with PCS (post concussion syndrome)” and further that this tool may even be used to screen athletes that are at high risk of developing CTE.

In the study, titled “Neurochemical Aftermath of Repetitive Mild Traumatic Brain Injury” the authors reviewed 16 athletes with a history of Post Concussion Syndrome (approximately half of which recovered within a year and the others having persistent symptoms beyond a year) along with a control group.  Neurofilament light proteins were significantly increased in players with PCS for more than 1 year and players with PCS had significantly lower cerebrospinal fluid amyloid-β levels compared with control individuals.

The authors concluded that these biomarkers could potentially be used to help screen athletes showing signs of too much damage which could, in turn, help athletes make a more informed retirement decision from combative and other contact sports.

Here is the study’s full abstract:

Importance  Evidence is accumulating that repeated mild traumatic brain injury (mTBI) incidents can lead to persistent, long-term debilitating symptoms and in some cases a progressive neurodegenerative condition referred to as chronic traumatic encephalopathy. However, to our knowledge, there are no objective tools to examine to which degree persistent symptoms after mTBI are caused by neuronal injury.

Objective  To determine whether persistent symptoms after mTBI are associated with brain injury as evaluated by cerebrospinal fluid biochemical markers for axonal damage and other aspects of central nervous system injury.

Design, Settings, and Participants  A multicenter cross-sectional study involving professional Swedish ice hockey players who have had repeated mTBI, had postconcussion symptoms for more than 3 months, and fulfilled the criteria for postconcussion syndrome (PCS) according to the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) matched with neurologically healthy control individuals. The participants were enrolled between January 2014 and February 2016. The players were also assessed with Rivermead Post Concussion Symptoms Questionnaire and magnetic resonance imaging.

Main Outcomes and Measures  Neurofilament light protein, total tau, glial fibrillary acidic protein, amyloid β, phosphorylated tau, and neurogranin concentrations in cerebrospinal fluid.

Results  A total of 31 participants (16 men with PCS; median age, 31 years; range, 22-53 years; and 15 control individuals [11 men and 4 women]; median age, 25 years; range, 21-35 years) were assessed. Of 16 players with PCS, 9 had PCS symptoms for more than 1 year, while the remaining 7 returned to play within a year. Neurofilament light proteins were significantly increased in players with PCS for more than 1 year (median, 410 pg/mL; range, 230-1440 pg/mL) compared with players whose PCS resolved within 1 year (median, 210 pg/mL; range, 140-460 pg/mL) as well as control individuals (median 238 pg/mL, range 128-526 pg/mL; P = .04 and P = .02, respectively). Furthermore, neurofilament light protein concentrations correlated with Rivermead Post Concussion Symptoms Questionnaire scores and lifetime concussion events (ρ = 0.58, P = .02 and ρ = 0.52, P = .04, respectively). Overall, players with PCS had significantly lower cerebrospinal fluid amyloid-β levels compared with control individuals (median, 1094 pg/mL; range, 845-1305 pg/mL; P = .05).

Conclusions and Relevance  Increased cerebrospinal fluid neurofilament light proteins and reduced amyloid β were observed in patients with PCS, suggestive of axonal white matter injury and amyloid deposition. Measurement of these biomarkers may be an objective tool to assess the degree of central nervous system injury in individuals with PCS and to distinguish individuals who are at risk of developing chronic traumatic encephalopathy.

While fraudulent records where once the bedrock of unverifiable boasts among many martial artists, the modern era of mixed martial arts coupled with the internet and video evidence have largely done away with such nonsense.

Unfortunately, the practice apparently is not completely dead as a recent story illustrates.

Today it was announced that the Canadian MMA promotion TKO MMA uncovered “fraudulent declarations” by one of their fighters and this led the promotion to terminate the fighters contract.

The claims include the fighter inventing a promotion, creating fake fight posters and boasting about winning fights that never occurred. The boasts appear to have fooled  MMA website Sherdog who posted the padded record and today published this correction.  If true, yes, this is fraud, and yes such misrepresentations would in all likelihood justify a promotion in rescinding a contract.

TKO MMA published the following statement:

The TKO organization has been informed today of a very serious situation involving Mr. Christ Franck. He has committed an irreparable gesture and he, and his team, have been informed that his recently signed TKO contract has been terminated.

The false and fraudulent declarations made by Mr. Frank in regards to his last four fights in Africa (that in reality never took place) are a shame to our sport. This is a first in the history of MMA and we hope that this type of situation never happens again. Both Sherdog (.com) and Tapology (.com) have also been mislead as these events never took place.

Sherdog added the following:

The organization announced on Thursday that Christ Franck has been released after creating four fake events — where he fought and won — to improve his record from 5-7 to 9-7. The promotion, entitled African Warriors Championship, was fabricated, while Franck’s four opponents had either been inactive or invented. In order to bolster his resume, Franck had himself winning a pair of one-night tournaments in Togo that in actuality never happened.

The following poster, apparently a fake, was produced in the comments section of TKO MMA’s statement:

poster

 

Reasons for judgement were released this month by the US District Court, ED Michigan, Southern Division, rejecting a request for $110,000 in damages following the commercial piracy of UFC 168 and instead awarding just over $4,500 in damages and costs.

In the recent case (Joe Hand Promotions, Inc. v. M & J Ballpark Inc.) the Defendant operated a bar and displayed UFC 168 without purchasing a commercial sub licencing licence from the Plaintiff.  The Plaintiff sued and obtained default judgement seeking $110,000 in damages.

The Court rejected this request and instead assessed damages at $750 (the cost of the commercial sub licence) then tripled this amount as ‘enhanced’ damages.  In finding this to be a fair assessment of damages District Judge Mark Goldsmith provided the following reasons:

Here, Joe Hand submitted evidence showing that Defendants should have paid $750 to show the Program. See Rate Card, Ex. 9 to Pl. Mot. Joe Hand does not indicate the rate that its auditor, who visited the location and witnessed the statutory violations at issue, charged for her services. Therefore, statutory damages are in the amount of $750…

Having concluded that Defendants willfully violated § 605 and that `enhanced’ damages are available, the Court determines that a just award requires trebling the amount of statutory damages, for a total of $2,250, inclusive of both statutory and `enhanced’ damages. See Joe Hand Promotions, Inc. v. The Happy Hour Tavern, LLC, et al., No. 14-cv-11693, Dkt. 15 (E.D. Mich.) (trebling damages); Joe Hand Promotions, Inc. v. McBroom, No. 5:09-cv-276(CAR), 2009 WL 5031580, at *6 (M.D. Ga. Dec. 15, 2009) (same).

Finally, under § 605(e)(3)(B)(iii), the Court “shall direct the recovery of full costs, including awarding reasonable attorneys’ fees to an aggrieved party who prevails.” Joe Hand submitted its attorneys’ invoice, billing his client for 9 hours. See Invoice, Ex. 10 to Pl. Mot. (Dkt. 14-10). These hours were billed at hourly rate of $210 — a rate customarily charged in the region. See Ex. 11 to Pl. Mot. (Dkt. 14-11) (State Bar of Michigan Billing Rate Summary Report). The Court deems this amount reasonable. See Potopsky, 2011 WL 2648610, at *4 (6 hours reasonable). Finally, the costs incurred by Joe Hand’s counsel seem no more than necessary. See Ex. 10 to Def. Mot. (filing fee of $400; postage and delivery costs of $54.32). Thus, pursuant to § 605(e)(3)(B)(iii), Joe Hand’s request for fees and costs in the amount of $2,344.32 is granted.

Adding to this site’s archived posts addressing UFC Pay Per View piracy, reasons for judgement were released this month by US District Court, WD Louisiana, Shreveport Division, noting that the UFC’s Commercial PPV distributor may not have the right to sue where an establishment purchases and displays the residential version of the program.

In the recent case (Joe Hand Promotions, Inc. v. Triple JJJ Travel Plaza, Inc) the Defendants operated a nightclub.  They purchased a licence directly from the UFC Website and registered their Roku as the device to stream a UFC Pay Per View program.

The price-tag for the residential program was $44.99 whereas a commercial licence, purchased from the plaintiff, would have cost $950.

The Plaintiff sued alleging Satellite and/or Cable Piracy which are the usual claims made in these prosecutions as the Federal Statutes creating civil liability for these offences call for steep statutory damages. The Plaintiff applied for summary judgement but the Court denied the application noting Joe Hand Promotions may not even have standing to sue in these circumstances and perhaps the UFC /Zuffa themselves are the aggrieved party.

In denying the application Magistrate Judge Mark Hornsby provided the following reasons:

The summary judgment evidence shows that Defendants purchased directly from Zuffa the right to receive the fight for $44.99. In showing the fight to the customers of their nightclub, Defendants violated the terms of use as set forth on the UFC (Zuffa) website, as well as the Roku terms and conditions, limiting use of the fight for residential purposes only. Other state or federal laws may also have been violated. The difficulty for the court, at least on the summary judgment record alone, is that Plaintiff may not be the proper party to assert claims against Defendants. Plaintiff’s distributorship makes a clear distinction between the exclusive right given to Plaintiff (distribution of the fight on commercial closed circuit television) and the right retained by Zuffa (the right to show the fight to residences via the internet). In other words, Defendants used the internet and their Roku device to violate someone’s rights by publically displaying the fight in a commercial establishment after having purchased only a residential license. That much is clear. But it is not clear that Plaintiff is the proper party to assert that violation. And it is far from clear that Defendants’ violations were willful.

Based on this record, the best exercise of this court’s discretion is to deny the motion for summary judgment and proceed to a trial where all of these issues can be fleshed out in full. Accordingly, Plaintiff’s motion for summary judgment (Doc. 25) is denied.

combat-sports-law-roxy-sponsorship-logo

From time to time I am pleased to sponsor combat sports athletes or promotions either through this site or my personal injury lawfirm.

I am honoured to once again be a sponsor for Roxanne “the Happy Warrior” Modafferi as she headlines Invicta 19 on September 23, 2016 seeking the promotion’s flyweight championship.  The card can be viewed on UFC’s Fight Pass.

Ms. Modafferi exemplifies all the best qualities one hopes to see in a combative sports athlete and supporting her quest for a title was an easy choice.

War Roxy!

In the last decade there has been great progress in public understanding that concussions are a form of traumatic brain injury, not simply ‘getting your bell rung’.

Current studies are showing, however, that sub-concussive blows over a prolonged period are equally troubling and a recent article published in the Journal of Neurosurgery Clinics of North America highlights this.

In short the authors of the article, titled “Repetitive Head Impacts and Chronic Traumatic Encephalopathy” note current literature indicates that “the number of years of exposure to contact sports, not the number of concussions, is significantly associated with more severe tau pathology in CTE, suggesting that repetitive head trauma, including sub-concussive injury, is the primary stimulus for the disease” a message that should resonate to all who choose to pursue either amateur or professional combative sports.

cte-article-screenshot

The full article can be purchased here.

 

At UFC 203 Farbricio Werdum won a unanimous decision against Travis Browne in the co-main event.

A controversial moment arose in Round 1, however, when Browne injured his finger from a Werdum (legal) strike and basically called timeout with the referee intervening and allowing a stoppage of the action.  (I would provide a GIF of the incident but the UFC take very aggressive stances on use of their intellectual property on the internet).

bjm-tweet-re-werdum

Here’s a breakdown of the relevant factors in an appeal:

Under Ohio’s Rules a TKO stoppage is to occur in the two potentially applicable circumstances:

  • Referee stops bout because contestant can no longer defend themselves
  • When an injury as a result of a legal maneuver is severe enough to terminate the bout.

And verbal and physical tapouts also potentially come into play with the following definitions:

  • (a) Tap out: when a contestant physically uses their hand(s) to indicate that they no longer wish to continue.
  • (b) Verbal tap out:  when a contestant verbally announces to the referee that they do not wish to continue.

If Werdum ultimately lost a decision he could argue the referee misinterpreted the rules and appeal to overturn the result.

It is unclear what Rules Ohio uses in fighter appellate rights but the Nevada Rules, widely adopted in many jurisdictions, allow a contest to be overturned in the following three circumstances:

  • The Commission determines that there was collusion affecting the result of the contest or exhibition;
  • The compilation of the scorecards of the judges discloses an error which shows that the decision was given to the wrong unarmed combatant; or
  • As the result of an error in interpreting a provision of this chapter, the referee has rendered an incorrect decision.

Allowing a fighter to call a time out after a legal strike is “an error in interpreting” the rules and a viable appeal can exist.

For an example of a fighter calling a timeout following a legal strike with the bout ending (correctly) in a TKO win you can watch Donald Cerrone v. John Makdessi at UFC 187.

 

 

fight-like-a-physicist-screenshot

One topic I often revisit is the reality that gloves in combative sports such as boxing, kickboxing and MMA do a great job protecting from superficial injury but likely lead to an increase of traumatic brain injury and CTE.

This week I had the pleasure of picking up a hard copy of Jason Thalken’s “Fight Like a Physicist who after experimentation published the following sober comments that regulators should consider next time they revisit sanctioning a gloveless combat sports event –

Boxing gloves and MMA gloves are effective at absorbing and dispersing the energy of impact, which causes local tissue damage, but we have no reason to believe any gloves reduce momentum transfer.  In fact, thanks to the excellent hand protection gloves provide, fighters are able to punch with greater momentum than they would with bare knuckles, and they are able to attack hard targets like the head more often.  This means gloves do a great job of reducing the types of injuries associated with structural tissue damage (cuts, bruises, swelling, black eyes, and broken bones), but they also lead to an increase in the frequency and intensity of momentum transfer to the brain, which is directly related to diffuse axonal injury and CTE.

Fifty years ago, before we had a firm understanding of CTE, the choice was clear; use padded gloves to prevent injury.  Today we need to think a little harder.  A cut, a broken hand or an eye injury might stop a fight or even end a fighter’s career, but brain injury can take away a fighter’s ability to function as a human being, both in and out of the ring

 

Ohio Athletic Commission Logo

Ohio has some unique rules on their books when it comes to weigh ins and all UFC 203 athletes setting foot into the Buckeye State for the first time ought to be aware of these.

Somewhat controversially, Ohio has gone against the grain in the recent trend of earlier weigh ins anchored in the belief that this encourages greater weight cuts.  Given this it is unclear if the Commission will allow early weigh ins for UFC 203.  In addition to this Ohio rules also

  • limit the weight discrepancy between opponents who tip the scales in different weight classes (perhaps most interestingly not allowing heavyweights, where one cuts down to 265, with a weight difference of more than 7 pounds from facing each other)
  • Second weigh ins on the day of the event are allowed with rules on how much weight an athlete can regain from their initial weigh in
  • Ohio gives athletes multiple chances to make weight with no restriction on how much weight can be shed overall but prohibits how much weight can be lost in an hour
  • A list of strict penalties for fighters who fail to make weight

Below are the Ohio Athletic Commissions full weigh in rules for MMA

Weigh in procedures.

(A) The weigh-ins must be conducted by an inspector or a representative of the Ohio athletic commission at a place and time designated by the promoter in accordance with the rules bearing agency 3773 of the Administrative Code.

(B) All contestants must weigh in. With the exception of super heavyweights contestants are limited to shorts, shirt and socks.

(C) The scale used for the official weigh-in shall be provided by the Ohio athletic commission. If authorized by the executive director or the commission the scale may be provided by the promoter. If more than one scale is used, each contestant shall weigh in on the same scale as their opponent

(D) Allowance in weight class is the weight difference permitted between contestants in two different weight classes.

(1) There may not be a difference of more than three pounds between weight classes from straw weight up to and including the bantamweight class.

(2) There may not be a difference of more than five pounds between weight classes from lightweight up to and including the welterweight class.

(3) There may not be a difference of more than seven pounds between weight classes from middleweight up to and including the heavyweight class. 

E) When a weigh-in is conducted the day prior to the event, with the exception of the heavyweight and super heavyweight class, all other contestants may be required to weigh-in at a second weigh-in the next day scheduled by the commission within eight hours of the starting time of the event. Contestants weighing one hundred fiftyfive pounds and lower will not be permitted to exceed the weight of the previous weigh-in by more than eight pounds. A contestant weighing more than one hundred fifty-five pounds will not be permitted to gain. more than thirteen pounds, from their recorded weight from the day prior. The random second day weigh-in will be at the discretion of the executive director.

(F) Amateur contestants may not weigh in earlier than ten a.m. the day of the event.

(G) A contestant one hundred fifty-five pounds and lower may not lose more than two pounds within one hour. A contestant above one hundred fifty-five pounds may not lose more than three pounds within one hour. There are no restrictions to the number of times a contestant may attempt to re-weigh within the prescribed time period. This rule applies to a second day weigh-in also..

(H) Penalties for a fighter being overweight:

(1) Up to a sixty day suspension and/or a fine .

(2) Overweight by one ounce to two pounds shall be fined by paying opponent one hundred dollars or ten per cent of purse whichever is higher.

(3) Overweight by more than two pounds but not over four pounds shall pay a fine and pay opponent two hundred dollars or twenty percent of purse whichever is higher.

(4) Overweight by greater than four pounds and if within the regulations for the bout to continue, shall be fined and pay opponent four hundred dollars or twenty five percent of purse whichever is higher.

(5) If purse exceeds ten thousand dollars the opponent will receive fifty percent and the state of Ohio will receive fifty percent.

(6) If the bout goes on no suspensions will be issued for not making weight.

(I) Weight allowances between weight classes do not apply to amateur contestants. They must compete within the weight class.