Today a Congressional hearing is taking place discussing Mixed Martial Arts in the context of considering the Muhammad Ali Expansion Act.

Hearing overview document

Statement of Jeff Novitzky

Dr. Ann McKee Statement

Lydia Robertson Statement

Statement of Randy Couture

You can watch the hearings here

Adding to this site’s archived posts addressing combat sports piracy, reasons for judgement were released recently by the US District Court, SD West Virginia, Charleston Division, assessing damages for the commercial piracy of UFC 170.

In the recent case (Joe Hand Promotions, Inc. v. Harrison) the Defendant displayed UFC 170 in a commercial establishment without paying commercial sub licencing fees to the Plaintiff.  The cost would have been $1,300.

The Plaintiff obtained default judgement and requested $60,000 in damages although the Court rejected this request as being disproportionate.

In assessing statutory damages at $5,000 and enhanced damages at $10,000 District Judge Thomas E. Johnston provided the following reasons:

In this case, awarding a per-patron rate of $100 for each of the seven patrons present during the Broadcast is insufficient, as Joe Hand’s provable losses are at least $1300, the amount of the sublicense fee. Similarly, the Court finds that a statutory damages award limited to the equivalent of the sublicense fee would have little deterrent effect on future piracy. The Court finds statutory damages in the amount of $5000 is just compensation for Defendants’ violation of Section 605. This amount takes into account what appear to be repeated violations of the statute on the part of Defendants, as indicated by Club Infinity’s Facebook advertisements. However, given that Club Infinity does not appear to have acquired substantial monetary gain through its illegal activity, the Court finds that awarding the statutory maximum of damages is excessive and would create an unjustified disparity with similar cases…

Enhanced penalties often bear a relation to the amount of the statutory award. See, e.g., Lawhon, 2016 WL 160730, at *2 (awarding enhanced damages equal to three times the statutory damages); Joe Hand Promotions, Inc. v. Upstate Recreation, No. 6:13-2467-TMC, 2015 WL 685461, at *9 (D.S.C. Feb. 18, 2015) (awarding two-and-one-half times the statutory award in enhanced damages); J & J Sports Prods., Inc. v. Romenski, 845 F. Supp. 2d 703, 708 (W.D.N.C. 2012) (awarding total damages equal to treble the sublicense fee). When determining additional damages, other courts have considered factors such as: “(1) repeated violations over an extended period of time; (2) substantial unlawful monetary gains; (3) significant actual damages to plaintiff;

(4) defendant’s advertising for the intended broadcast of the event; and (5) defendant’s charging a cover charge or charging premiums for food and drinks.” Wing Spot, 920 F. Supp. 2d at 668 (quoting Kingvision Pay-Per-View Ltd. v. Rodriguez, No. 02 CIV. 7972 (SHS), 2003 WL 548891, at *1 (S.D.N.Y. Feb. 24, 2003)).

Joe Hand points out by affidavit that these factors are somewhat limited in their utility. (See Aff. of Joe Hand Jr., President, at ¶ 14.) While that may be true, the Court has no evidence that the circumstances of this case deviate from the norm, save perhaps for evidence suggesting that Club Infinity had some history of intercepting Joe Hand’s satellite broadcasts in a similarly illegal manner. Joe Hand points to no other aggravating factor that would warrant an exceptional enhanced damages award. And if the Court focuses its attention on the five factors delineated above, only the first, as mentioned earlier, is particularly noteworthy. The other factors are neutral or even weigh against an increased award of enhanced damages. With regard to the fifth factor, for example, Mr. Shifflett attests that he was not charged a cover fee at Club Infinity on the night of the Broadcast. (Shifflett Aff. at 1.) The Court also notes that any attempt on the part of Club Infinity to attract patrons by displaying the Broadcast appears to have been unsuccessful. Apart from Club Infinity’s staff, Mr. Shifflett observed only seven patrons present that night. Thus, although enhanced damages are appropriate whether Defendants’ conduct resulted in great financial gain or not, the Court finds that $50,000 is excessive. Consistent with the deterrence goals of § 605, and as a means of penalizing Club Infinity’s repeated violations, the Court awards enhanced damages equal to two times the statutory damages, or $10,000. This results in total damages of $15,000 against Defendants.

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An unusual ending occurred between Jake Ellenberger and Jorge Masvidal during the UFC’s TUF 24 finale card which took place in Las Vegas on December 3, 2016.

Ellenberger slipped and his left foot wedged between the mat and the bottom fence..  Masvidal proceeded to (legally) reign down strikes until referee Herb Dean called timeout.  He inquired if this could be considered an equipment failure, and when told the answer was no called a TKO ending to the bout on the basis that Ellenberger was not intelligently defending himself.

As reported by MMAMania Ellenberger promptly noted he will be appealing hoping to overturn the TKO stoppage to a no contest.

While it is extremely rare for an in-bout result to be overturned after the fact (with the exception of when positive PED results come into play) as was demonstrated by the recent Tonya Evenger saga, there are circumstances where a change of decision is appropriate.

So what standards will Ellenberger have to meet?

Having taken place in Las Vegas, the Nevada Athletic Commission rules will be in play.  Nevada’s regulations have an extremely limited set of circumstances that can apply.  NAC 467.770 governs changing a bout result and reads as follows:

Except as otherwise provided in subsection 6 of NAC 467.850, the Commission will not change a decision rendered at the end of any contest or exhibition unless:

     1.  The Commission determines that there was collusion affecting the result of the contest or exhibition;

     2.  The compilation of the scorecards of the judges discloses an error which shows that the decision was given to the wrong unarmed combatant; or

     3.  As the result of an error in interpreting a provision of this chapter, the referee has rendered an incorrect decision.

Rules 1 and 2 are non-starters and clearly don’t come into play.  Ellenberger’s only hope will rest on rule 3 and he will have to argue that the referee rendered “an incorrect decision” through “an error in interpreting a provision” of the NAC’s MMA rules.

The bout ended by TKO.

NAC 467.7968 specifically allows a bout to end by “Technical knockout by the referee stopping the contest“.  The rules provided only the following circumstances of when a TKO occur

.  If a contest or exhibition is terminated because an unarmed combatant is:

     (a) Unable to continue;

     (b) Not honestly competing;

     (c) Injured; or

     (d) Disqualified,

it may be adjudged a technical knockout to the credit of the winner.

However, the regulations go on to note that “The provisions of this section do not apply to a contest or exhibition of mixed martial arts.”.  In other words, an MMA bout can be stopped by TKO but there is silence on when an MMA TKO stoppage takes place.

Ellenberger’s strongest argument could be that without a clear definition of when a TKO ending occurs in MMA such a result should not extend to this unique set of circumstances.  If this fails he can try to point to potential defects in the cage design.

The regulations require that

  • the floor of the fenced area must be padded with ensolite or another similar closed-cell foam, with at least a 1-inch layer of foam padding, with a top covering of canvas, duck or similar material tightly stretched and laced to the platform of the fenced area. Material that tends to gather in lumps or ridges must not be used.
  • There must not be any obstruction on any part of the fence surrounding the area in which the unarmed combatants are to be competing.
  • Fence posts must be made of metal, not more than 6 inches in diameter, extending from the floor of the building to between 5 and 7 feet above the floor of the fenced area, and must be properly padded in a manner approved by the Commission

If Ellenberger can find a flaw with the cage design such that it violates the above requirements, and then persuade the NAC that failing to take the faulty design into account insofar as it may have contributed the final sequence of events he may have a chance of success.  Barring that, and barring the NAC taking a restrictive approach on when TKO’s can occur in MMA, Ellenberger, like so many before him on the losing side of controversial endings, will likely be stuck with the in cage result.

Today Ariel Helwani broke the surprising news that Conor McGregor obtained a professional boxing licence in California.  Andy Foster, the California State Athletic Commissions executive officer noted

He got a license today and a federal ID…He’s a California boxer now….He’s qualified [as a boxer]…I’d love to see him fight in California. It just needs to be the right opponent. Certainly a high-level opponent. We’re happy to license him. We’re happy he’s a California fighter.

So here is the multi-million dollar question – Why?  Perhaps its an attempt to keep his name in the press, perhaps its a simple negotiating tactic or perhaps its something far more clever and interesting.

McGregor remains under contract with UFC parent company Zuffa.  His contract likely has exclusivity provisions prohibiting him from competing in other combative sports.  Specifically, Zuffa contracts contain the following provision

During the Term, Zuffa shall have the exclusive right to promote all of Fighter’s bouts and Fighter shall not participate in or render his services as a professional fighter or in any capacity to any mixed martial art, martial art, boxing, professional wrestling, or any other fighting competition or exhibition, except as otherwise expressly permitted by this Agreement“.

Given his unparalleled financial drawing power for the UFC it is more than unlikely that they would simply let him walk away to compete in boxing.  He would be promptly sued and this is where things get interesting.

Now that McGregor is a licensed professional boxer in the US he enjoys all the protections of the Muhammad Ali Act.  If you are unfamiliar with this legislation you can click here for a section by section breakdown of all the protections it grants boxers which MMA fighters do not enjoy.

If McGregor tries to box and is met with a Zuffa lawsuit and injunction application he can try to shield himself with the protections of the Act.  He can argue that he is a professional boxer and his restrictive Zuffa contract violates numerous provisions of the Federal legislation. To the extent that his Zuffa contract seeks to restrict him from earning a living as a professional boxer he may be on to something.  Zuffa would, on the other hand, argue that they do not meet the definition of a professional boxing “promoter” under the legislation and that it does not apply to their McGregor contract.

Will McGregor’s strategy work?  Who knows.  Its a long shot.  But it is also a potential power play.  It is leverage.  It is a unique move.  McGregor has expressed an interest to take a break from competing until after his first child is born.  This may be a perfect opportunity to get litigation underway for judicial interpretation.  Interesting times.

Today an anticipated press conference took place with the announcement of the Mixed Martial Arts Athletes Association.

You can listen to full audio here courtesy of BloodyElbow.com

Notable about today’s announcement was the involvement of 5 currently relevant UFC fighters who were willing to put their full weight behind the association.  The fighters included Georges St-Pierre, Tim Kennedy, Donald Cerrone, Cain Velasquez and T.J. Dillashaw.

Unlike the recent equally high profile announcement of the Professional Fighters Association which was quarterbacked by an agent and a lawyer, the involvement of current fighters seemed to bring out a lot of support or at least curiosity from other fighters as evidenced by their reactions on twitter.

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Here are some quick points worth noting

The MMAFA have been in the game the longest, almost a decade.  Both the MMAFA, spearheaded by Arizona attorney Rob Meysey, and the MMAAA are seeking an association, not a union.  It is unclear if they will pool their efforts and work together or each blaze a path of their own.

Where the MMAFA and the MMAAA differ is the former is looking to protect all professional fighters whereas the MMAAA is looking only to form an association that will deal with UFC fighters.

Another fundamental difference seems to be with respect to the current anti-trust lawsuit the MMAFA has engineered.  The MMAAA spoke dismissively of this effort.

Both the MMAFA and the MMAAA differ from the PFA which is seeking to form a union instead of an association.  If you are not familiar with the difference this article is a good place to start where labor law professor Zev Eigen provided the following summary:

A professional association is broader in scope than a labor organization.

Labor organizations are defined by federal law—the National Labor Relations Act, or “NLRA.” Labor organizations exist to deal with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Unions like the Teamsters, or the Screen Actors’ Guild are examples of labor organizations. They are commonly organized around a community of interest in a particular category of work or profession. The Screen Actors Guild advances the interest of actors. The Writers Guild advances the interests of writers. Labor organizations are focused on representing a particular category of individuals and collectively representing them. Unions serve as the exclusive representative for their members in collective bargaining with their employers for wages, hours, and working conditions.

A professional association doesn’t necessarily collectively bargain. It doesn’t benefit from the protections that labor organizations have. For example, rules for labor organizations that pertain to strikes, work stoppages, protections against discrimination, and for union status, do not apply to a professional association, such as the American Bar Association (“ABA”) or the American Medical Association. Professional associations typically promulgate sets of rules or uniform standards pertaining to their members and typically the members are in one profession. Association members, even if they are negotiating with employers or other entities, are supposed to follow those rules or standards.

Another noteworthy development is the MMAAA suggested they have plans in place to make the UFC want to come to them and even mentioned collective bargaining which really is not a tool an association has at their disposal.

To the extent that the MMAAA is planning to be disruptive to the UFC to get their attention they must tread very lightly or risk violating US anti-collusion laws and the tort of intentional interference with contractual relations.

As noted by the FTCforming a trade association does not shield joint activities from antitrust scrutiny: Dealings among competitors that violate the law would still violate the law even if they were done through a trade association. For instance, it is illegal to use a trade association to control or suggest prices of members. It is illegal to use information-sharing programs, or standardized contracts, operating hours, accounting, safety codes, or transportation methods, as a disguised means of fixing prices.”

And by the Department of JusticeWhen competitors collude, prices are inflated and the customer is cheated. Price fixing, bid rigging, and other forms of collusion are illegal and are subject to criminal prosecution by the Antitrust Division of the United States Department of Justice

Hopefully the MMAAA has the counsel of a seasoned US labor lawyer to guide them in the right direction.  With James W. Quinn apparently being in the mix it appears the MMAAA have this base covered.

It is hard to argue that UFC fighters can’t benefit from reform with them likely receiving a relatively small percentage of the revenues they help generate when compared to other major sports.  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.

One of the competing groups seeking to organize fighters has lost one of its key players.  Leslie Smith, who was vocal in championing the Professional Fighters Association has published a letter explaining that she is stepping away due to sports agent Jeff Borris failing to keep fighter names considering joining the PFA confidential.

This development occurs on the cusp on an announcement where it is anticipated that fighters managed by Creative Artists Agency (a key competitor to current majority Zuffa stockholder WME-IMG  who are arguably a in a regulatory conflict of interest by also managing current UFC fighters) will seek to implement “industry redefining” changes.

Smith’s full statement, which continues to support efforts of fighters to organize and lays out concrete goals, is set out below:

This is an open letter to apologize to all the fighters, trainers and managers that I introduced to Jeff Borris in the capacity of the PFA.  I am stepping away from the PFA because our vision and methodology surrounding a fighters union are not aligned.  I apologize to any of the fighters and their supporters who may have been negatively affected by the actions of Jeff Borris though the PFA.  I still believe in the need for, and will continue to work toward, a union for fighters under the UFC banner.  Previously I thought we needed help and leadership from a well-established sports agent such as Jeff Borris.  I believe strongly now that for a fighter union to succeed it must be the fighters that lead and choose.

In order to assist in the progression of PFA, I made a list of active fighters that I thought would be great candidates to serve on an interim executive board.  I spoke to those fighters and solicited insight from several managers on the condition of confidentiality.  I shared all the names and information I had compiled with Jeff Borris, because he pledged confidentiality and professed his desire to see the liberation of fighters from restrictive contracts and one-sided negotiations.  Most of the fighters to whom I spoke prudently withheld absolute commitment to the union until such time that they felt confident in the union and that the best leadership was in place.  I was horrified when I read an article published by a major MMA news outlet that included a list of fighter names, some of whom I had spoken regarding potential involvement in the PFA.  The names included people to whom I had promised confidentiality, and those people had neither pledged commitment nor consented to the release of their names.  I had also provided this information to Lucas Middlebrook, the labor lawyer involved with the PFA.  However, I am confident, based on my opinion of his character as well as through direct discussion with him that he would not betray the trust nor jeopardize the careers of the fighters and their supporters.  When I reached out to Jeff Borris to inquire how the names could have been released, I was severely disappointed to hear that he had started creation of a board of agents with whom he was sharing information – including, in my opinion, the information he assured me would be kept confidential.

Jeff might have been doing everything with the best of intentions.  However, I cannot work with him anymore given the opinion I have formed regarding his unique perception of the concept of confidentiality and lack of transparency.  I have not written this letter to cast a negative light on Jeff Borris.  Quite the contrary! I have written this letter because I need to apologize and explain to everyone who trusted me enough to entertain a conversation with me why their names ended up on a publicized list that incorrectly asserted they had committed to the union.

I am deeply passionate about the need for a promotion specific union to bargain for UFC fighters health care, negotiating power and revenue shares.  At the same time I believe in the MMA Fighters Association’s ability to operate as an umbrella over all MMA promotions, and deal with issues like regulating state commissions and officials, as well as looking out for fighters in all promotions.

I believe we need a union specific to both the UFC and Bellator.  In fact, it could be the same union that administers separate CBA’s for each promotion.  My vision of this union is a democratic one in which the fighters in the UFC and Bellator will be the ones that lead the organization and decide the issues that affect the fighters.  We, as fighters, do not need agents or lawyers making policy decisions on behalf of our union, because as fighters, the labor and product we provide places us in a unique situation to bargain for our due share of leverage and the revenue we are generating.  As with any other union composed of professionals, we will hire professionals, such as lawyers or economists, but we will decide who those professionals will be, they will work for us.

I look forward to the next step in this journey, which will be to work closely with other fighters that have 100% committed to the union in order to draft a constitution and bylaws, which will secure control of our union exclusively for fighters, not agents or lawyers.  Once we are an established labor organization, and information does not have to be confidential, we shall diligently research and examine potential formation of an advisory board of agents, as these bodies have proved useful to the other major players unions in this country.  However this will be done transparently and only after receiving democratic approval from the fighters represented by our union.

The next steps will be:

1)    Establish an interim executive board of UFC and Bellator fighters;

2)    Draft a constitution and bylaws, which will serve as the governing document for our union;

3)    Collect authorization cards with the goal of obtaining cards from a minimum of 30% of UFC fighters;

4)    Once we have the requisite number of cards,  asking the UFC to voluntarily recognize our union, and if it refuses then we will submit the cards to the NLRB;

5)    The NLRB will determine if we have presented the necessary amount of cards to demonstrate showing of interest, and if so will commence the process of organizing an election.  In order to be certified, 50% plus 1 of all eligible voting fighters will need to approve unionizing.  We would expect the UFC to argue that we are independent contractors as opposed to employees, but we feel strongly that our status as employees entitles us the right to unionize.  That issue, if raised by the UFC, will be decided by the NLRB;

6)    Once certified we will hold an election amongst the membership to determine the dues structure and to elect a full-term executive board comprised of fighters.

7)    The elected executive board will be empowered to construct a negotiating committee, including hiring necessary professionals, to begin negotiations toward our first collective bargaining agreement.

I am excited to make the unionizing of fighters a reality.  I want to focus now on making sure when it does happen, the union will be our union – led and chosen solely by fighters.

Update November 29, 2016 – It is being reported that the NYSAC is prepared to waive the suspension in lieu of a fine thus clearing the way for Gastelum to be licenced in Ontario assuming prompt payment of the of the fine.

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Update – Shortly after publishing this article Gastelum replied with the following tweet leading to speculation that the NYSAC may have backed away from their suspension

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Today the UFC announced that Kelvin Gastelum is scheduled to fight Tim Kennedy at UFC 206 in Toronto.  This, despite Gastelum currently facing a 6 month suspension from the New York State Athletic Commission after failing to make weight and attend the weigh in for UFC 205.

The UFC is somewhat cautious in this fight announcement noting it is “pending approval from the athletic commissions“.

Gastelum is apparently appealing his suspension and if the NYSAC is willing to clear the path then no harm no foul.  If, however, the suspension remains in place he may face regulatory issues being licensed in Ontario.

Regulation 52 passed pursuant to Ontario’s Athletics Control Act governs the licencing of professional MMA fighters in the Province.  Section 8(5) of the Regulation requires Gastelum to hold a “current valid licence to take part in professional contests or exhibitions in another jurisdiction“.  This is a mandatory requirement and there does not appear to be discretion to waive it (although the requirement may violate Canadian constitutionally guaranteed ‘mobility rights’).

The full section reads as follows:

(5) A person who is not a resident of Ontario and who applies for a permit to take part in a professional contest or exhibition shall at the time of applying provide evidence satisfactory to the Commissioner that the person is the holder of a current valid licence to take part in professional contests or exhibitions in another jurisdiction.  R.R.O. 1990, Reg. 52, s. 8 (5); O. Reg. 197/06, s. 4 (1); O. Reg. 465/10, s. 7 (2).

Leaving aside an unlikely full blown constitutional challenge to requirement, Gastelum will have to produce a valid licence from “another jurisdiction“.  His New York licence is suspended so that will not do.  Unless he can provide a valid current licence from another jurisdiction or New York changes their mind Ontario’s hands may be legally tied in approving this fight.

Additionally, section 17.2 of the Regulations may act as a barrier even if Gastelum can navigate the above with the following requirement:

17.2 (1) If a participant is under contract to take part in a professional contest or exhibition, the participant or promoter of the contest or exhibition shall, by the time specified in clause 11 (1) (b) or (c) as applicable, submit to the Commissioner evidence satisfactory to the Commissioner that there are no existing suspensions, prohibitions or other limits restricting or limiting the participant from taking part in a professional contest or exhibition under any other jurisdiction.  O. Reg. 465/10, s. 16.

(2) A participant mentioned in subsection (1) who does not submit the evidence described in that subsection shall not take part in the contest or exhibition.  

Adding to this site’s archived posts addressing combat sports piracy, reasons for judgement were released recently by the US District Court, ED California, assessing damages for the commercial piracy of UFC 173.

In the recent case (Joe Hand Promotions, Inc v. Ahmadi) the Defendant displayed UFC 173 in a commercial establishment without paying the commercial sub licencing fees.  The Plaintiff sued and obtained default judgement.  The Plaintiff sought maximum statutory damages of $110,000 but the Court rejected this request and instead awarded damages totaling $6,000 Magistrate Judge Deborah Barnes provided the following reasons:

Under the Federal Communications Act, a plaintiff may elect to seek either actual or statutory damages…. The statute provides for statutory damages for each violation of not less than $1,000 and not more than $10,000, as the court considers just… Plaintiff seeks the maximum award of $10,000. The statute also authorizes enhanced damages of not more than $100,000 if the court finds the violation was “committed willfully and for purpose of direct or indirect commercial advantage or private financial gain.” ….. “[T]he mere assertion that Defendant acted willfully is insufficient to justify enhanced damages.” Kingvision Pay-Per-View, Ltd. v. Backman, 102 F.Supp.2d 1196, 1198 (N.D. Cal. 2000).

Here, plaintiff seeks $100,000 in enhanced statutory damages. Plaintiff argues that the requested amount is justified primarily because of the need to deter broadcast piracy in light of the harm done to plaintiff’s business as a result of such activities. In determining whether enhanced statutory damages are appropriate, courts usually consider “repeated violations over an extended period of time; substantial unlawful monetary gains; significant actual damages to plaintiff; defendant’s advertising for the intended broadcast of the event; defendant’s charging a cover charge or charging premiums for food and drinks.” Kingvision Pay-Per-View, Ltd. v. Gutierrez, 544 F.Supp.2d 1179, 1185 (D. Colo. 2008) (quotation omitted).

Plaintiff has submitted an affidavit from its investigator stating that during the airing of the program at defendant’s establishment the investigator observed a maximum of 26 patrons inside the establishment and that there was no cover charge to enter the establishment. (ECF No. 14-3 at 2.) Plaintiff has come forward with no evidence of any promotion by defendant that the fight would be shown at the establishment, that a special premium on food or drink was being charged at the establishment on the night of the program, or that the establishment was doing any greater level of business on the night the program was shown than at any other time. As acknowledged by plaintiff, there are “no egregious circumstanced noted” in this action. (Pl.’s MDJ (ECF No. 14-1) at 11.) Moreover, plaintiff has presented no evidence to the court suggesting that the defendant is a repeat broadcast piracy offender.[3]

In light of this record, the undersigned finds plaintiff’s argument in support of enhanced statutory damages to be unpersuasive and not supported by the weight of authority in this area. Accordingly, the undersigned will recommend that judgment be entered against the defaulted defendant, and that plaintiff be awarded $6,000 in statutory damages, with no award for enhanced statutory damages, pursuant to 47 U.S.C. § 605(e)(3)(C)(i & ii). See J & J Sports Productions Inc. v. Ocampo, Case No. 1:16-cv-0559 LJO JLT, 2016 WL 6246490, at *6 (E.D. Cal. Oct. 26, 2016) (“Because there is insufficient evidence to demonstrate the piracy was done for purposes of commercial or private gain, enhanced damages are not recommended.”); J & J Sports Productions, Inc. v. Bolano, Case No. 5:14-cv-3939-BLF, 2015 WL 4512322, at *4 (N.D. Cal. July 24, 2015) (“In sum, it is Plaintiff’s burden to establish willfulness and Plaintiff has offered no evidence nor conducted any analysis of the specific facts in this case on this point sufficient to warrant an award of enhanced damages. As such, Plaintiff has failed to demonstrate entitlement to enhanced damages and the Court declines to award such damages here.”); J & J Sports Productions, Inc. v. Lorenzana, Case No. 13-cv-5554 BLF (JCS), 2014 WL 3044566, at *4 (N.D. Cal. May 13, 2014) (“There is also insufficient evidence that Defendant displayed the Program for a `commercial advantage’ or for `financial gain,’ which is required for an award of enhanced damages.”).

Update December 1, 2016 – Today Tonya Evinger tweeted that her appeal succeeded and her bout was overturned to a no-contest.

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On November 18, 2016 dominant InvictaFC Bantamweight champion Tonya Evinger saw her nine fight win streak come to an end when she tapped to an armbar to challenger Yana Kunitskaya.

The ending was controversial, however, with referee Mike England apparently telling Evinger to adjust position shortly prior to the bout ending sequence.  Evinger was caught in an armbar and defended by stepping on her opponent’s face.  A technique that is 100% legal in professional MMA.  Shortly after adjusting from the referee’s instructions Evinger was caught deeper in the hold and tapped out.  The sequence can be viewed in the below video.

As reported by Marc Raimondi, Evinger was displeased with this sequence and lodged an appeal with the Missouri Office of Athletics who regulated the event.  The former champ noted that “We are def gonna protest that call and see what can be done to get a rematch immediately“.

There is no universal set of rules for appealing a disputed bout result in MMA.  The analysis must be conducted on a jurisdiction by jurisdiction basis.  So what does Evinger need to prove to succeed in Missouri?  Here is a brief legal breakdown:

Chapter 7 of Missouri’s MMA Rules sets out the following appellate rights:

Any party may contest the outcome of any bout within ten (10) days of the decision by writing all the facts and the basis for the complaint. The complaint must be forwarded to the office. If there appears to be a violation of these rules, the director or his/her designate shall investigate, and, if the claims seem to be substantial, hold a hearing and issue its findings and decision.

So step 1 is for Evinger to lodge her complaint in writing to MOA within the 10 day deadline.

Chapter 8 of Missouri’s MMA Rules set out the below fairly universal list of fouls.  Foul “S” being the only one the referee could possibly have in mind.

(1) Fouls. The following actions in a mixed martial arts bout or contest are defined as fouls: (A) Head butting;

(B) Eye gouging or openhand attacks to the eyes;

(C) Biting;

(D) Groin attacks of any kind;

(E) Pulling hair, ear or the nose;

(F) Palm heel strikes (using the heel of the palm of the hand to deliver a blow to the face); (

G) Fish hooking which is defined as grasping or pulling the inside of an opponent’s cheek or nose;

(H) Inserting any body part into any orifice or into any cut or laceration of an opponent;

(I) Obstruction of breathing through the mouth or nose;

(J) Small joint manipulation (e.g., twisting of fingers or toes);

(K) Striking the spine, the medulla and/or the back of the head;

(L) Elbow attacks to the head or the face of the opponent;

(M) Driving or spiking an opponent straight to the ring or fighting area floor on his head or neck from an upright and vertical position;

(N) Attacking fingers;

(O) Striking downward using the point of the elbow. Arcing elbow strikes are permitted;

(P) Throat attacks or strikes of any kind, including, without limitation grabbing, striking or obstructing the trachea;

(Q) Clawing, twisting or pinching the flesh;

(R) Grabbing the clavicle;

(S) Kicking, kneeing or stomping the head of an opponent who is down or not standing. For purposes of this section, a contestant is down when any part of his/her body, other than his/her feet, touch the floor or if he/she is hanging helplessly on or over the fighting area enclosure;

(T) Kicking to the kidney with the heel;

(U) Spiking an opponent to the canvas on their head or neck;

(V) Intentionally pushing, shoving, wrestling or throwing an opponent out of the ring or fighting area;

(W) Holding the shorts or glove of an opponent and/or intentionally grabbing anything the opponent is wearing;

(X) Spitting on an opponent, referee or any other person;

(Y) Engaging in any unsportsmanlike conduct that causes an injury to an opponent or poses a safety risk;

(Z) Grabbing or holding the ropes, cage or fighting area enclosure and/or hanging the limbs of the body over the rope during a bout or contest;

(AA) Using abusive language or illicit gestures in or near the fighting area;

(BB) Attacking an opponent who is under the care of the referee or during the break;

(CC) Attacking an opponent after the bell has sounded the end of the round or bout;

(DD) Flagrantly disregarding the instructions of the referee;

(EE) Escaping or leaving the fighting area during the course of the bout or contest;

(FF) Intentional evasion of contact with an opponent, intentionally not using best efforts, intentionally or consistently dropping the mouthpiece or faking an injury;

(GG) Interference from anyone working the corner or anyone leaving the corner area, including, throwing any object on or into the fighting area by a contestant’s corner staff; and

(HH) Throwing in the towel during competition.

However, as John McCarthy (influential drafter of the so-called ‘unified rules’) notes, stepping on an opponent’s head is not a foul.

bjm-screenshot

This leaves an appeal where a fighter was improperly told to change position based on referee error.  Evinger cannot be faulted for moving positions when instructed to do so as Chapter 4 of the OACs Rules mandates that “contestants shall at all times observe the directions and decisions of all officials” putting her in the unenviable position of committing a foul and arguably sanctionable offence if she did not comply with the order.

The next question is when can the OAC overturn the result of a bout on appeal?  This is where things become a little murkier.

Clearly they can change the ‘outcome of a bout‘ but I cannot find any rule the OAC uses setting out the circumstances  when they can do so. All the appellate rules reference is needing a “violation of these rules“.

The most common standards for changing the outcome of a bout across other jurisdictions are when the following occur:

1.  The Commission determines that there was collusion affecting the result of the contest or exhibition;

2.  The compilation of the scorecards of the judges discloses an error which shows that the decision was given to the wrong unarmed combatant; or

3.  As the result of an error in interpreting a provision of this chapter, the referee has rendered an incorrect decision.

Assuming the OAC is prepared to use these standards, there is a strong argument that number 3 is triggered with the referee erring in interpreting the rules.  The “violation of these rules” would be unwarranted referee instruction.

To be more specific Evinger can argue that Chapter 8 of the OAC’s rules were breached, with the referee being required to “understand Missouri laws and rules relating to the contest” and enforce those rules.  Further it can be argued that the referee is only allowed to “give an official warning” for “an unauthorized blow, strike or attack” or where she a fighter is “guilty of foul tactics” none of which occurred.

If this is accepted, and the OAC further accepts that this error led to the submission, a burden Evinger will have to meet, then she may enjoy the rare success of overturning the result of her bout.

After overseeing their first professional MMA contest after the sport was legalized in New York, the State’s athletic commission is coming under scrutiny for the suspensions they are handing out to fighters.

Two such suspensions were for missing weight with Thiago Alves suspended 3 months for missing weight and Kelvin Gastelum suspended for  6 months for missing weight and apparently no-showing at the weigh in.

The NYSAC is, however, well within their rights to hand out suspensions to fighters who miss weight under the newly minted regulations governing combative sports in New York.

Section 206.6 of New York’s Regulations allows the NYSAC to suspend the licence of anyone who “violates the rules, policies and directives” of the NYSAC.

While there is no regulation saying a fighter must make weight s.209.2 requires bout contracts to specify a “combatant’s contracted weight” and s. 209.3 allows suspension for fighters to who do not “carry out the terms and conditions of contracts to which they are parties.“.

Although it is not the norm in combat sports for fighters to be suspended for missing weight NYSAC does enjoy this authority.

From there the only relevant legal question is whether the NYSAC is exercising this power fairly or are they arbitrarily handing out punishments to MMA fighters?  The answers appears to be the former with the NYSAC publishing a bulletin in 2015 setting uniform penalties for missing weight. (ht Joe Seatter).

The bulletin reads as follows:

Suspension of Overweight Boxers

Professional boxers have an obligation, at the official weigh-in for a bout, to weigh in at or below the weight set forth in the bout contract. A boxer who fails to make weight violates his or her obligations under the bout contract, damages the boxer’s opponent and the sport of boxing, and does a disservice to him or herself. Pursuant to 19 NYCRR 214.10, “[i]n nontitle bouts, boxers overweight under the terms of the contract may be suspended after the match for such period as the commission may decide.” It is the sense of the Commission that boxers who weigh in over the contract weight should be suspended as follows:

1. For a first violation of the terms of the contract, ninety (90) days.

2. For a second violation of the terms of the contract, one hundred and eighty (180) days.

3. For a third violation of the terms of the contract, two hundred and seventy (270) days.

4. For a fourth or subsequent violation of the terms of the contract, a time period as determined by the Commission but no less than two hundred and seventy (270) days.

The suspension periods will apply to all boxers in nontitle bouts pursuant to 19 NYCRR 214.10, and to all boxers in title bouts pursuant to the Commission’s authority to act in the best interest of boxing.

The Commission reserves the right to take any additional disciplinary action it deems appropriate based on (a) whether the bout is cancelled as a result of one or both boxers weighing in over the contract weight, (b) the amount by which a boxer weighs in over the contract weight, or (c) any other aggravating factor. Additional disciplinary action may include, but is not limited to, suspension, revocation, and fine. Implemented by vote of the Commissioners on August 25, 2015.

This policy shall be effective immediately.