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

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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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