Does failing to disclose illegal PED use take away consent in MMA?

Posted: March 8, 2013 in Doping

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In case there aren’t enough reasons to avoid illegal Performance Enhancing Drugs, their use may also open the door to civil or criminal repercussions following otherwise lawful MMA bouts.

You need look no further than the aftermath of the McSorley/Brashear altercation or the Bertuzzi/Moore incident to recognize that the law sets limits to consent of harm in sports.

With Bill S-209 giving combat sports a legal framework in Canada, a question that will arise is when will consent be exceeded in MMA?   This is a live issue because while the Bill S-209 Criminal Code amendments protect sanctioned bouts from illegal ‘prize-fight’ status,  they do not over-ride the assault provisions of the Criminal Code.

Enter PED abuse.  What separates PED abuse in MMA from other sports is the risk of harm to fellow competitors.  Lance Armstrong’s PED fueled cycling feats did not expose his opponents to risk of physical harm.  The same cannot be said when a fighter gains physical advantage over another involved in a striking or grappling contest.  When athletes consent to an MMA bout there is an agreement that the rules of engagement will be abided by.  If a competitor uses illegal PED’s and fails to disclose this prior to the match that will arguably trigger the Assault provisions of the Criminal Code.

Consent is a recognized defence to criminal charges of assault.  One limit to this defence is that consent cannot be obtained by fraud.  If an athlete uses and fails to disclose the use of illegal PED’s consent is arguably stripped away opening the door to not only criminal assault charges but also to civil suits for damages.

So what factors would a Court look at in deciding whether consent is obtained by fraud?  The leading decision in this field of law (R v. Mabior) was recently released by the Supreme Court of Canada.  While Mabior dealt with consent to sexual contact where an HIV positive status was not disclosed, its analysis can equally be applied to consent to MMA.  The Court held that consent to contact which would otherwise be valid can be taken away if a participant

  1. Fails to disclose a key fact
  2. The other participant would not have participated had that fact been known
  3. The activity consented to poses ‘a significant risk of or causes actual serious bodily harm’ by virtue of the non-disclosed fact.

Where an athlete gains physical advantage over an opponent in MMA through the use of illegal PED’s all of the above factors are arguably met.

Want a combat sports based example of rule breaking leading to criminal and civil consequences?  Look no further than the Collins v. Resto affair (read footnote #2 to see the criminal repercussions).

Fraud can delay the operation of limitation periods exposing cheaters to legal repercussions years after the fact.   A quick look at Lance Armstrong gives a striking example of how serious the legal consequences can be after one achieves all they desire through cheating in sport.  If you are an MMA athlete stay clear of illegal PED’s.  Don’t gamble with your and your opponent’s livelihood.  You won’t want to be on the wrong end of the test case on this issue.

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Update October 6, 2014 – For an example of a combat athlete withdrawing consent following a scheduled opponent testing positive for a PED you can look to page 4-5 of World of Boxing v. Don King.

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Update February 10, 2015This month both GSP and Ronda Rousey suggested that fighting a PED using opponent is akin to fighting an opponent armed with a weapon.  Strong evidence, coming from UFC champions, that consent is exceeded with fraudulent PED use.

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Update February 18, 2015 – Today, during the UFC’s press conference addressing the need to clean up doping in the sport, company President Dana White expressly acknowledged that a fight with one opponent cheating through doping is “incredibly dangerous” with the following noteworthy comment –

We’re going to move a lot faster than baseball did. They’re hitting a ball with a stick. Who cares?.  You have two human beings, who go in and compete in combat sports. And if one is using performance enhancing drugs, it’s incredibly dangerous. I hate it. I hate everything about it. If you can’t compete, based on your natural abilities, you don’t belong here.

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Update July 10, 2015This week UFC welterweight Travis Brown spoke out against PED users adding weight to the argument that clean athletes do not consent to fight doping fighters.  Brown provided the following pointed comment ““People do die doing this sh-t – just not in the UFC yet, fortunately. The day is gonna come when it happens. We all know that. If it happens to someone that got beat by a known juicer, is that not going to be more of an issue? I don’t want to be the dead one because a motherf-cker was sticking needles in himself all day.”

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Update October 16, 2015this week the Supreme Court of Canada released reasons confirming that doping in sport is outright criminal fraud making the above argument far more than mere speculation.

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Comments
  1. […] Criminal Code assault provisions from being triggered in appropriate circumstances.  In cases of PED abuse and intentional post bout contact, criminal prosecution is not out of the question in Canadian […]

  2. […] previously discussed the discovery of doping after the fact can have repercussions.  In the world of combat sports there are real world consequences to masked PED use.  Perhaps win […]

  3. […]  While this seems like a complex challenge the legal analysis may be surprisingly simple.  Fraud vitiates consent.  If a combatant would not have fought knowing their opponent was using PED’s their consent […]

  4. […] a competitor uses illegal PED’s, then lies about this in the bout agreement that is fraud.  Fraud can vitiate consent to fight undermining the integrity of the entire bout and the protections parties seek through […]

  5. […] thing that comes up, and I think someone blogged about it recently, the question of going to the PED point, if you consent to a fight between two clean athletes and […]

  6. […] Last year I authored an article discussing the possible Criminal and Civil consequences that combat sports competitors expose themselves to if they decide to cheat using PED’s.  In short the legal issue revolves around fraud and this can open the door to far reaching legal consequences. […]

  7. […] withdraw consent to fight an opponent who is on illicit PED’s.  This withdrawal of consent can be instrumental to proving civil liability if a fighter is ever harmed at the hands of a PED usin…  In addressing the reasonableness of the bout’s cancellation the WBA […]

  8. […] Not only does fraud vitiate consent, it can also work to stall limitation periods and set aside contractual provisions with defenses such as waivers of liability and choice of venue provisions. […]

  9. […] have previously suggested that PED use can amount to fraud in the world of combat sports and a cheating athlete can be exposed not only to regulatory consequences but also criminal and […]

  10. […] you are guilty of doping in combat sports, not only can you face regulatory penalties, you can be exposed to criminal charges and face lawsuits not only from your opponent but also the betting […]

  11. […] Lastly, and perhaps more importantly, Hunt can argue in a civil lawsuit that PED use is fraud and fraud vitiated consent to fight.  This can lead to litigation based on the torts of assault/battery seeking recovery of provable damages.  (Source the Resto / Collilns affair where doctored gloves and hand wraps led to criminal conviction and a civil lawsuit based on cheating vitiating consent and my 2 cents) […]

  12. […] Nate Diaz likes to say “everybody’s on steroids“.  Perhaps not everyone but MMA’s PED list is an ever growing concern.  I count my self on the side calling for PED’s to be banned in combat sports and further am firm in my view that if / when an opponent is terribly injured or killed at the hands of a PED using opponent there will be legal fallout. […]

  13. […] Why Doping Can Be Legal Fraud in Combat Sports […]

  14. […] previously discussed a successful lawsuit against a PED using opponent would likely be based on the torts of assault/bat… with the argument being that consent to fight did not exist against a doping opponent who […]

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