Archive for May, 2012

Today BC’s proposed Athletic Commissioner Act has passed Second Reading which means this Bill is one step closer to becoming law.  I have previously discussed this new proposed law here.

You can click here and scroll down to section 1550 to read the Legislative debate about Bill 50.  There appears to be little doubt that this Bill will become law as the Government has the necessary majority and even the opposition critic’s comments include the following positive remarks “You know, I somewhat applaud the government for going here with this bill, simply because in many ways it’s necessary.

I will post a further update once this Bill passes Third Reading and receives Royal Assent (the final steps for a Bill to become a Law).

I recently discussed Senate Bill 209 and the fact that it will potentially criminalize amateur mixed martial arts contests on a Province by Province basis.  The reason being that the Criminal Code currently allows amateur contests so long as “the contestants wear boxing gloves of not less than one hundred and forty grams each in mass” but the proposed change will require Provinces to specifically designate allowed amateur contests otherwise risk these becoming criminal ‘prize fights’.

I have brought this concern to the Provincial Government, specifically to BC’s Minister of Community, Sport and Cultural Development.   The Government is now apparently looking into this concern and crafting a solution.  I first brought this to the Minister’s attention via private e-mail.  I followed up publicly via twitter.  Here is our public twitter exchange:

 

 

 

 

 

 

 

I am advised, in a series of DM’s from a knowledgeable source that the Government is in fact addressing this concern and that details will be provided to me shortly.  I will post a further update once this is done.

I previously discussed that the BC Government has introduced sensible legislation seeking to create an Athletic Commissioner who will be tasked with regulating professional MMA and other Striking Sports on a Province wide basis.

I am following this matter and today had a chance to review the Government’s comments on the Floor of BC’s Legislature when Bill 50 was first introduced.  For the sake of convenience I reproduce these here:

BILL 50 — ATHLETIC COMMISSIONER ACT

Hon. I. Chong presented a message from His Honour the Lieutenant-Governor: a bill entitled Athletic Commissioner Act.

Hon. I. Chong: Mr. Speaker, I move that Bill 50 be read for the first time now.

Motion approved.

Mr. Speaker: Continue, Minister.

Hon. I. Chong: This bill would provide for the establishment of a provincial athletic commissioner to regulate and supervise professional boxing, kickboxing and other similar sporting events, including mixed martial arts. Once established, the commissioner’s primary focus would be to ensure consistent application of safety rules for participants in professional contests. This approach will replace local government commissions that currently require and regulate these types of events with a centralized regulatory body ensuring consistency across the province.

This legislation would not apply to amateur sporting contests. The duties of the commissioner would be to ensure a consistent standard of qualifications and safety protocols for all participants and officials through a uniform licensing and permitting framework. It would ensure compliance with the proposed act and its regulations through the use of suspension or cancellation of licences and event permits as well as administrative penalties.

The benefit of having a provincial athletic commissioner would be that every professional boxing, kickboxing and mixed martial arts or similar event would be subject to the same rules and regulations whether it’s being held in Vancouver, Nanaimo, Vernon or anywhere else in the province.

[1350]

Since sports such as kickboxing and mixed martial arts are very popular and are taking place without a consistent regulatory framework, it makes sense to be proactive about creating this position to increase the safety of athletes and officials as well as to provide certainty for communities and the industry.

I move that the Athletic Commissioner Act be placed on the orders of the day for second reading at the next sitting of the House after today.

Bill 50, Athletic Commissioner Act, introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

I will continue to follow the development of this law and post relevant updates at this blog as they develop.

I’ve recently written about the Federal Government’s effort to modernize the Criminal Code to permit MMA and other Striking Sports to become lawful.

While this amendment will allow the sport to be properly regulated on a Professional level, review of the legislation appears to create a potential gap on the amateur side. The reason being that “prize fights”, including MMA and other martial arts contests, will become illegal on the amateur side unless one of the following 3 exceptions apply:

(a) if the sport is on the programme of the International Olympic Committee (Note many martial arts, including MMA, are not)

(b) if the sport has been designated by the Province’s lieutenant governor in council or by any other person or body specified by him or her, or

(c) if the contest is held “in a province with the permission of the Province’s lieutenant governor in council or any other person or body specified by him or her.

Currently I am not aware of any BC legislation setting out a list of designated or permitted amateur contests.  Under the current Criminal Code language this is not needed as amateur contests are exempt from criminalization where “the contestants wear boxing gloves of not less than one hundred and forty grams each in mass”.  However, given the proposed re-wording it appears amateur bouts without a specific designation may unintentionally become outlawed.

The passage of the proposed federal legislation may unintentionally criminalize otherwise lawful amateur contests on a Province by Province basis.  The solution will be for the various Provinces to be aware of this and make appropriate designations on the Provincial level.

With Bill 50 expected to become law soon in British Columbia, Professional MMA will benefit from consistent standards Province wide

Once a Provincial Athletic Commissioner is appointed standards will need to be designed that will apply to MMA competitions in BC pursuant to the Commissioner’s obligations under Section 4 of the Athletic Commissioner Act and more specifically pursuant to section 46(2)(m) of the Act.  When setting the standard both fighter safety and industry consistency will need to be taken into account.  Both of these factors point to the adoption of the Unified Rules of Mixed Martial Arts.

The Unified Rules of Mixed Martial Arts have been widely utilized over the past decade and have demonstrated good results in protecting fighters.  In perhaps the most comprehensive study into this issue, the 2007 Johns Hopkins Study “INCIDENCE OF INJURY IN PROFESSIONAL MIXED MARTIAL ARTS COMPETITIONS” published in the Journal of Sport Science and Medicine concluded that under the Unified Rules “The injury rate in MMA competitions is compatible with other combat sports involving striking.”. 

Of note, this study highlighted that the vast majority of injuries were of a resolvable nature (with facial lacerations making up nearly 50% of the reported injuries) and that traumatic brain injury rates were far lower than in regulated professional boxing noting the following “As opposed to professional boxing, MMA competitions have a mechanism that enables the participant to stop the competition at any time.  The “tap out” is the second most common means of ending an MMA competition…(which) is thought to help explain a knockout proportion in MMA competitions that is almost half of the reported 11.3% of professional boxing matches in Nevada

Moving on to consistency, there is certainly no greater accepted standard for MMA contests in North America than the Unified Rules.  With the Association of Boxing Commissions unanimously adopting this standard in 2009 BC’s MMA Regulations will have little reason to go outside this standard.

Last but not least, if the purpose of this legislative overhaul is to court the UFC back to British Columbia, giving the UFC the fighting regulations they are most familiar with certainly makes sense.

Leaving aside the fact that professional MMA is currently technically illegal in BC, an additional problem is that professional MMA events in British Columbia are subject to inconsistent regulatory requirements.

The reason being that local municipalities are allowed to form their own Athletic Commissions based on the power given to the them by section 143 of BC’s Community Charter (or in the case of Vancouver by Part XIX of the Vancouver Charter).

Fortunately, the Provincial Government has taken a meaningful step to remedy this with the introduction of Bill 50.  This Bill, introduced earlier this week in the Legislature, seeks to create a Province-wide Athletic Commissioner who will be responsible for the following:

(a) the regulation and supervision of professional contests or exhibitions in accordance with this Act and the regulations;

(b) licensing and permitting under this Act;

(c) the enforcement of this Act and the regulations.

Importantly, section 50 of the Bill specifically speaks to repealing the power of Vancouver and other municipalities to create their own athletic commissions.

In short this will replace the myriad of different regulations local municipalities have created for professional MMA fights.  This will create consistency which will benefit both participants and hosts of these events.

It is worth noting that Vancouver, while being stripped of the ability to create their own Athletic Commission, will still retain the right to veto MMA events if they wish because the Vancouver Council will be given the discretion to “prohibit a professional contest or exhibition, including a professional contest or exhibition for which an event permit is required under the Athletic Commissioner Act.”

I should note that as of today’s date this Bill is just that, a Bill.  It has not formally become law although Third Reading is expected shortly.  I will provide an updated post once this Bill becomes formal law.

Despite a relatively long history of hosting professional MMA bouts, inlcuding several high profile UFC contests, professional MMA bouts presently are illegal in Canada.  This is so due to the outdated language of section 83 of Canada’s Criminal Code which makes it an offence to engage in a “prize fight” except in limited circumstances.

Currently Section 83 of the Criminal Code reads as follows:

Engaging in prize fight
  • 83. (1) Every one who
    • (a) engages as a principal in a prize fight,
    • (b) advises, encourages or promotes a prize fight, or
    • (c) is present at a prize fight as an aid, second, surgeon, umpire, backer or reporter,

    is guilty of an offence punishable on summary conviction.

  • Definition of “prize fight”(2) In this section, “prize fight” means an encounter or fight with fists or hands between two persons who have met for that purpose by previous arrangement made by or for them, but a boxing contest between amateur sportsmen, where the contestants wear boxing gloves of not less than one hundred and forty grams each in mass, or any boxing contest held with the permission or under the authority of an athletic board or commission or similar body established by or under the authority of the legislature of a province for the control of sport within the province, shall be deemed not to be a prize fight.

The Government of Canada has introduced legislation to modernize the definition of exempt “prize fights” to include properly sanctioned MMA events.  Specifically Bill S-209 seeks to make the following changes:

2) In this section, “prize fight” means an encounter or fight with fists, hands or feet between two persons who have met for that purpose by previous arrangement made by or for them, but does not include
 
 
(a) 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 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;
 
 
(b) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province if the sport has been designated by the province’s lieutenant governor in council or by any other person or body specified by him or her and, in the case where the lieutenant governor in council or other specified person or body requires it, the contest is held with their permission;
 
 
(c) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province with the permission of the province’s lieutenant governor in council or any other person or body specified by him or her; and
 
 
(d) a boxing contest or mixed martial arts contest heldin a province with the permission or under the authority of an athletic board, commission or similar body established by or under the authority of theprovince’s legislature for the control of sport within the province

In short this proposed legislation will allow Provinces to regulate both professional and amateur “Prize Fights” which will specifically include MMA.  Currently the Bill is being debated before the Senate.  You can click here to read the Senate’s news release over these hearings.  You can access webcasts of these meetings here and here.

As discussed at my BC Injury Law Blog in 2009, BC law does not allow Infants (defined as anyone under the age of 19) to waive their right to sue.  This is so due to legislation called the Infants Act.

Waivers signed by Infants are not enforceable.  Furthermore, waivers signed by Infants parents are also not binding on the infant making these an ineffective means of protecting martial arts schools.  This was demonstrated in a 2009 BC Supreme Court decision.

In the 2009 case (Wong v. Lok’s Martial Arts Centre Inc.) the Plaintiff alleged he was injured when engaged in a sparring match with a Defendant in the lawsuit. The Plaintiff claimed that the defendant company was “negligent in failing to take preventative measures to ensure that injuries did not occur in the course of sparring matches by taking such measures as screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches. ”

At the time the Plaintiff began taking martial arts courses with the Defendant the Plaintiff’s mother signed a contract which stated in part that “It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School. YOU ARE RESPONSIBLE FOR ALL INJURIES.!”

The Martial Arts School brought a motion to dismiss the lawsuit based on this contract.   Mister Justice Willcock was asked specifically “whether a child’s parent can effectively execute a pre-tort release on behalf of a minor”.  The Court held that the contract was not enforceable because the Infant’s Act “does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort. ”

Mr. Justice Willcock engaged in a thorough and lengthy analysis of the law at paragraphs 19-53 of the judgement which are worth reviewing in full for anyone interested in BC Infants Law.  In holding that this contract was not enforceable Mr. Justice Willcock concluded as follows:

[55] The release is a simple document. It clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school…

[59] I have considered the defendant’s submissions that the Court should not limit the full range of parental authority. I am also cognizant of the policy reasons for permitting parents to sign limited releases (considered in the Washington State cases Scott v. Pacific West Mountain Resort, 834 P. 2d 6 (Wash. 1992); and Wagenblast v. Odessa School Dist.(1988), 110 Wn.2d 845, 758 P.2d 968) and the arguments that such releases are permissible in the common law.  (Malamud and Karyan “Contractual Waivers for Minors In Sports-Related Activities” (1991-1992) 2 Marquette Sports L.J. 151; Doyice J. Cotten & Sarah J. Young, in “Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools” (2007) 17 J. Legal Aspects Sport 53; Robert Nelson, “The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive their Children’s Tort Liability Claims” (2001-2002) 36 U.S.F. L. Rev. 535)

[60] I am of the opinion, however, reading the Infants Act as a whole that the legislature intended the Act to establish the sole means of creating contractual obligations that bind minors. In coming to this conclusion I place some weight upon the fact that the rationale for prohibiting parents and guardians from releasing infants’ claims after a cause of action has arisen applies with some force to pre-tort releases as well.

[61] The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.  The Defendant’s application is therefore dismissed.

Welcome to my Canadian MMA Law Blog.  This site will follow legal developments addressing issues concerning Mixed Martial Arts in Canada.