Archive for May, 2013

Dave Maedel Image(Image via BC Government’s Flickr Page)

There is now official confirmation that BC’s first Athletic Commissioner is Dave Maedel.  You can click here to read about his background.

Maedel, who recently served as the Chief Sheriff of BC Sheriff Services, is now the first acting BC Athletic Commissioner.  With his formal powers coming into force on May 30, 2013 BC now has a new Sheriff for professional Boxing and MMA.

Congratulations on your appointment and good luck serving BC’s combat sports community!

Logo KamloopsRadio

This week I had the pleasure of being interviewed by the Jim Harrison Show in Kamloops to discuss BC’s new Athletic Commissioner Act regulating professional boxing and MMA.

Jim was kind enough to give me permission to rebroadcast the interview here:

 

 

For those of you who listen to Jim’s show that are visiting this site for the first time, welcome!  Here are links to my archived posts addressing some of the topics we covered on the show:

Bill S-209 and the expected changes to the Criminal Code

The Nuts and Bolts of BC’s Athletic Commissioner Act

The Gap on the Amateur Side of MMA and other Combat Sports in BC

Why These Laws Won’t Effect Fighting in Hockey and other Sports

BC Athletic Commissioner Website

 

 

 

 

The Office of the BC Athletic Commissioner is now open for business.

Their website is now live and can be found here.  It is very user friendly for anyone looking to get a licence but could use direct links to the Regulations which can be found here.

hfl promo

If you are a fan of combat sports you don’t have to wait for the big show to come to town to see a great live event.  There is much more to combat sports than the bright lights of the UFC with local events often producing exciting action and great entertainment.

To this end, I am proud to have my law firm involved as a corporate sponsor of the Hurricane Fight League which will be hosting an action packed card of kickboxing this Friday, May 31 in Esquimalt’s Archie Browning Arena.  The card is stacked kicking off at 6:30 and finishing strong with two ISKA World Title Fights.  If you are in the greater Victoria area stop by for a great night of fights!

I have been vocal in my support that while amending the Criminal Code to allow a legal framework for MMA in Canada is a good thing, Bill S-209 is not without its flaws.  Specifically it will make many amateur martial arts contests such as Karate and potentially even wrestling illegal by default unless Provinces act.

I am not the only supporter of legal MMA that has concerns about Bill S-209’s language.  Pat Reid, the Executive Director of the ECSC, is being vocal about a further shortcoming of Bill S-209 as it relates to “professional” contests.  Mr. Reid has recently written to all MP’s telling them in essence that they should get this overhaul right and not leave other marital arts in the dark.  Pat has provided me with a copy of his letter and allowed me to republish it here.  Below is its full text:

To the House of Commons Standing Committee on Justice and Human Rights:

The Edmonton Combative Sports Commission (ECSC) would like to raise a significant issue with the wording of Bill S-209 as it relates to professional combat sports.  It is the ECSC’s understanding that the policy intent of the Bill, as it relates to professional combat sports is that it means to modernize the Criminal Code of Canada’s approach to “prizefighting” by expressly permitting the types of professional combat sports that take place in Canada today, when regulated by a commission or athletic board created under provincial law.  These types of sports include the sport of boxing, the sport of mixed martial arts (MMA), and also the sport of kick boxing, the sport of Muay Thai kickboxing and the sport of Tae-kwon-do. 

As currently drafted, paragraph (2) (d) in the Bill, (which deals with professional combat sports) specifically adds the one sport of MMA to boxing as a sport that can be regulated by a commission or board and which would not be contrary to the Criminal Code.  

In the past, there has been uncertainty about whether the meaning of boxing is broad enough to include MMA, kick boxing, Muay Thai and Tae-kwon-do.  It appears the policy intent of the Bill in relation to professional combat sports was to remedy this uncertainty by specifically providing that other combat sports regulated by a commission were not contrary to the Criminal Code.

This broad approach is apparent in sections (2) (a) through (c) in the Bill in relation to amateur combat sports where a broad descriptive approach describing combat with fists, hands or feet is used to define permissible amateur combat sports.

In paragraph (2) (d), by specifically naming only the sport of boxing and the sport of MMA, we are concerned that the specific list excludes other combat sports, namely the sport of kick boxing, the sport of Muay Thai and the sport of Tae-kwon-do that are happening at the professional level, regulated by Canadian commissions today. 

This argument is strengthened by comparison with the broad approach to defining combat sorts in relation to amateur events in paragraphs (2) (a) through (c).

The ECSC is concerned that this result is not the intended result of the amendment to the Criminal Code and will result in professional combat sports other than boxing and MMA being driven underground and professional events being dressed up as amateur and operated without regulation by the Athletic Commissions.  This puts the safety of fighters at risk.  The question we ask is simply: “what is the policy intent?”

It is important to understand that the one particular sport that has been recommended to be added – mixed martial arts- is not a “collection” of combative sports – it is ONE specific sport.  It is one specific sport with its own set of rules.  It is a relatively new and very popular sport, but it still is only ONE sport.  It does not serve as an umbrella description that would include the other professional combat sports currently regulated today.

Other professional combative martial arts sports have been occurring with regularity long before the new sport of mixed martial arts arrived on the scene – sports including full contact karate, kickboxing, Muay Thai and Tae-kwon-do (which is not only recognized by the Canadian Ministry of Sport in Heritage Canada, it is an Olympic sport with men’s and women’s events contested by Canadians presently.)  Each of those professional combative sports also has its own rules.

The best analogy I can offer to illustrate the problem with the proposed amendment as it currently is written – is that it is presumed to be a solution to provide regulation for all ball sports (the analogy that “all sports that utilize a ball” are equal to “all combative sports”). But by adding only one sport (say football, to use the ball sport analogy) you exclude softball, baseball, soccer – in other words the other ball sports.) Football has its own rules and you can’t pretend that football rules can somehow be stretched to cover baseball, soccer, softball, etc. (the other ball sports).

Mixed martial arts, even though it sounds plural because of the “s”, actually is only ONE sport (like football) with specific rules. So, to continue with the analogy, when someone approaches a provincial Commission with a request to hold a softball (kick boxing) event, and only football  (MMA) has been allowed as a result of the current wording in the amendment – the Commission can’t pretend to permit the softball (kick boxing) event can occur as though it were football (MMA) and apply the rules from football (MMA) to cover it.  

Instead, the Commission must advise the softball (kick boxing) promoter that they cannot hold softball events any longer — the government has decided this by adding only the singular sport of mixed martial arts (football) (and its specific rules) and none of these other ball sports (combat sports) with their specific rules are included in the legislation.

I would ask that you reconsider the current recommendation of just adding this one new (and latest) sport of professional mixed martial arts.  Other professional combative sports that have a much longer history that are already being held across the country, would suddenly be left unregulated because this legislation does not contemplate or allow for their regulation.

As Bill S-209 is drafted, a provincial or municipal Athletic Commission would not be able to regulate any professional combat sport other than the singular sport of boxing and the singular sport of MMA.  If a Commission were to interpret MMA to include Muay Thai, and apply Muay Thai rules, regulation by that Commission would be contrary to the Criminal Code.  If a fighter were to suffer a severe injury such as a brain injury in a Muay Thai event, the Commission would likely be negligent.  

So the question remains – what is the policy intent of the proposed amendment?  If you were to ask Commissions in this country that regulate these combative sports events you would hear us say (as we advised in the Senate Hearings on this Bill) that we need to ensure we can regulate in accordance with the Criminal Code of Canada and that we are seeking clarity.  We need to be able to regulate for the safety of the fighters in all of the disciplines of combative sport that are being regulated today. 

We hope we can all take a step back and allow the government policy writers to find the right wording to cover “all the combative sports disciplines that involve striking and grappling”. These are the combative sports that are recognized, and currently regulated, by the respective provincial combative sports commission” jurisdictions – sports that need to be captured in the legislation for the safety of the fighters. 

We advocate a broader approach, rather than just amending the Criminal Code by specifically adding one additional sport and in the process excluding all the other combative sports.

Thank you for the opportunity to make this submission on behalf of the Edmonton Combative Sports Commission, with support from other combative sports commissions in Canada.  I hope this explanation assists a fuller understanding of our view of the regulatory and safety implications of this important issue with Bill S-209.

 Respectfully submitted, 

Pat Reid, Executive Director

Edmonton Combative Sports Commission

ECSC logo

Research indicates that many MMA athletes compete in a “significantly dehydrated” state due to the weight cuts they put themselves through to make their contracted weight.  This in turn leads to noted increased injury risks including increased risk of brain trauma.

I previously highlighted this issue which led to a good discussion here, and further at Bloody Elbow and at the Underground.

Thanks to sports journalist Kevin Iole, we now have another illustration of health consequences stemming from fighter dehydration.  Kevin recently sat down with Junior Dos Santos in an interview ahead of UFC 160.  Kevin canvassed JDS’ performance at UFC 155 where the former heavyweight champion revealed as follows:

He took a severe beating in losing his heavyweight championship to Velasquez via a five-round decision. The morning after the bout, his urine was a very dark brown, the color of Guinness Stout beer.

He wasn’t urinating blood, as some fighters do after a grueling match. Rather, the brown coloration of his urine was due to rhabdomyolysis. His muscle fiber was breaking down and getting into the blood steam.

It is a treatable condition, but it can be fatal under certain circumstances. There are numerous causes, but one is extreme physical exercise. Dos Santos trained so fiercely that he was pushing his body well beyond its natural limits.”

With JDS having weight to spare to make the heavyweight upper limit this example is likely not illustrative of weight cut issues, however, it may speak to consequences of fighter dehydration which may call into question 25 minute main events with the reality that weight cuts are the norm at lower weight classes.

The always insightful Dr. Benjamin shared the following observations on twitter:

Dr Benjamin commets re dehydration

All of this is not lost on athletic commissions, and at least one North American commission, the Edmonton Combative Sports Commission, is studying this issue.  The ECSC’s Executive Director, Pat Reid, “is currently conducting research on mixed martial arts competitors in terms of body weight fluctuations and the potential risk to competitors health as a result.“.  The ECSC boasts some of the most extensive archives with data on about 1000 MMA fighters and about 600 boxers.  It will be interesting to see the results of Mr. Reid’s research and the steps various athletic commissions will take to address these concerns.

hockey fight picture

(Image via Wikimedia)

Earlier this week I was pleased to learn that Joel Fingard, the Executive Director of the Manitoba Combative Sports Commission,is among the readers of this blog.

Joel asked me whether, in my view, Bill S-209 will have the effect of criminalizing fighting in hockey and other non-combat sports.  The short answer is no.  I asked his permission to share our exchange on this blog and he kindly agreed.  Here is part of our discussion –

I am curious if you have given any thought on how the new s-209 will affect other sports such as fighting in the NHL. With an updated law that is more clear in regards to amateur and professional prize fighting do you anticipate this being applied to NHL or any other professional sports that have a certain amount of fighting in it?

My reply was as follows –

I don’t think the Prize Fighting provision of the Criminal Code, as it stands or as it will be amended under S-209, will do anything with respect to fighting in the NHL or similar leagues.  The reason being the crime of prizefighting relates to an “”encounter or fight with fists or hands (or feet as will be added by S-209) between two persons who have met for that purpose by previous arrangement made by or for them” “ 

 The key provision being the “previous arrangement made by or for them”.  Unless it is expressly agreed that a fight is going to take place at an event ahead of time I don’t see this provision being applicable.  The authorities seem to reserve criminal prosecutions for NHL events for severe incidents such as the Brashear/McSorely affair.  I don’t expect there to be any prosecutions for run of the mill hockey fights following this bill’s passing.

After this exchange, I looked into Parliament of Canada’s Hansard transcripts which is one of the best sources to reference when seeking insight into the intent of a law.  Among the various useful discussions were several comments which strengthen the view that Parliament has no intent in having Bill S-209 extend to incidental fights in non-combat sports.

Liberal MP Sean Casey states as follows:

 “As it was established in the Senate committee, adding more descriptors to this definition, such as elbows and knees, is not necessary and could even be counterproductive since contact sports such as hockey could then be considered prizefighting sports. That is why the definition is limited to fists and feet. By modernizing the Criminal Code to permit combative sports such as mixed martial arts and karate, we would go a long way to encouraging wider acceptance of these activities as legitimate and mainstream sports.”

Liberal MP Massimo Pacetti had the following comments:

People are likely wondering why this bill adds only feet to the current definition of a prize fight. The reason is simple: there are no combat sports that do not use fists, hands or feet in some way, but there are sports, such as football and hockey, where contact is permitted with other parts of the body. By adding more descriptors, we would simply be adding more problems. That is why the proposed definition mentions only fists, hands and feet.

Last month I highlighted the Canadian Medical Association’s vocal opposition to Bill S-209.  This, despite the organization admitting “we don’t have a lot of research available yet as to the rate and severity of the injuries” and further that “we don’t know the rates of the injuries …but my argument is any injury is too much”. 

The lack of substance behind this opposition was called out by Canadian Member of Parliament Francouse Boivin who provided the following critical comments to the CMA’s opposition –

In your presentation, Dr. Reid, you made it clear that you weren’t a lawyer. But what the Standing Committee on Justice and Human Rights is trying to determine is whether it is still appropriate for the Criminal Code to qualify the practice of a certain sport as a crime when, in reality, it is not treated as such. The criminal aspect has been completely overlooked for some time now…

We may be dealing with some hypocrisy here. And I’m not referring to your position but to the fact that the practice is criminalized in the Criminal Code. In your opening remarks, you made a statement that also appears in the notes you provided:

For parliamentarians, and for society, the question of whether to legalize MMA under the Criminal Code therefore comes down to a choice: A choice between money and health.

That comment bothered me a bit, for the simple reason that the issue has nothing to do with that in my opinion. Nor is it a matter of legalizing something. You talk about legalizing MMA, but we’re actually talking about decriminalizing an activity, not legalizing it. The provinces and territories can put certain rules in place, but that doesn’t mean the passage of Bill S-209 would legalize the practice. All it would do is decriminalize an activity that, in actual fact, has not been treated as a crime for quite some time.

That is the reality of Bill S-209. As my colleague Mr. Seeback pointed out, your opposition is based on the intent of the sport. In other words, the foot and elbow strikes dealt directly to a participant’s head during mixed martial arts, or MMA, matches make this activity different from other sports. My understanding, then, is whether it happens in boxing or MMA, you’re against it as a matter of policy, as doctors.

However, when two hockey players decide to fight during a game, taking off their helmets and gloves so they can punch each other freely in the face, it is clear to me there’s an intent there as well. Therefore, I imagine you would like to go as far as to ban fighting in hockey, adding it to your policy on boxing and MMA.

Unless I am mistaken, you’re position applies to all cases where an individual uses a body part to strike another person’s head on purpose. The head is the main issue for you, is it not?

MP Massimo Pacetti also provided the following feedback –

The Canadian Medical Association told us that it thinks we should ban mixed martial arts and boxing, but it did not have a problem with other combative sports, such as karate or tae kwon do, which also involve hits to the head.

However, with the exception of boxing, these sports are all officially illegal, but tolerated. Doing nothing would not change anything. People would continue to participate in these sports, even though they could technically wind up in court for doing so.

Other sports, for example skiing and hockey, cause many serious injuries such as fractures and concussions. If we had to ban every sport involving risks, only sports such as curling and badminton would be left.

During the same meeting of the Standing Committee on Justice and Human Rights, another doctor who works in the world of combative sport, told us that he supports the bill. He explained that the health risks for participants can be reduced considerably by implementing safety regulations and measures. This particular doctor believes that by decriminalizing these sports we will foster regulated rather than underground competitions, which occur more frequently than we might imagine.

Researchers at Johns Hopkins University faculty of medicine published an article in the Journal of Sports Science and Medicine in 2006. They studied injuries sustained in mixed martial arts, which they found were similar to those in boxing and other combative sports. What is more surprising is that they believe fewer brain injuries are sustained in mixed martial arts than in boxing, because fewer mixed martial arts competitions end in knockouts compared to boxing.

As members probably know, a knockout usually occurs when the brain hits hard against the skull. However, mixed martial arts fights frequently end as a result of an armlock or choke. The competitors are often less inclined to punch because they want to avoid being pinned to the ground. In short, given that boxing is legal, we really do not have any good reasons to ban mixed martial arts.

This bill will decriminalize these sports and allow the provinces to regulate them.

A province could pass much stricter regulations for amateur mixed martial arts contests, such as not allowing a competitor to hit an opponent who is down. The bill does not aim to dictate rules for the sport; it aims to give tools to the provinces. The situation is ambiguous right now. If we do not amend the Criminal Code, there will be a threat hanging over the heads of the organizations involved in these disciplines because someone could contest their legality in court.

(Cross-Published at the BC Injury Law Blog)

___________________________________________________________________________

BC Injury Law Right Hand X Ray Image

In an example that a similar injury can have profoundly different consequences for different people depending on their chosen profession, last year a Vancouver Jury awarded professional boxer  Jegbefumere ‘Bone’ Albert  just over $1,000,000 following a traumatic hand injury caused in a motor vehicle collision which negatively impacted his boxing career.  He was a professional cruiser weight at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic hand injury which flared with training/fighting.  The Jury accepted this impacted him in his chosen profession and awarded substantial damages for diminished earning capacity.

The defendant appealed arguing numerous errors at the trial level.  In unanimous reasons for judgement (Albert v. Politano) the BC Court of Appeal upheld the trial verdict and in doing so the Court provided the following comments addressing the damages assessed for the lost opportunity the hand injury caused the professional boxer –

[50]        This brings us to the assessment of damages itself. The appellants say that each of the heads of damages assessed is wholly out of proportion to the evidence before the Court.

[51]        Damages are a question of fact and we may interfere with the quantum, absent an error of law or principle, only if there is a palpable and overriding error.

[52]        I deal with the loss of earning capacity first. I conclude, from the fact the jury awarded a significant sum, that the jury rejected the appellants’ submission that Mr. Albert would have withdrawn from a boxing career, soon after the accident, in any event. Clearly Mr. Albert had boxing ability. The jury must have considered that his boxing ability was diminished as the result of the injuries from the accident. It is true that Mr. Albert did not earn very much money from boxing prior to the accident. It is also true that there was not a great deal of evidence about the size of the purses available in professional boxing. Nonetheless there was some evidence. Witnesses from the world of boxing did testify to some extent as to the purses won in certain matches, particularly in Canada. There was evidence, therefore, before the jury from which they could conclude that Mr. Albert had the skills to fight for, and win, purses in the time between the accident and the trial, amounting to $60,000. The period of past loss is close to four years. The sum awarded is well within the range of the purses that were discussed in the evidence as available, in Canada, over that period of time. Given the positive evidence as to Mr. Albert’s abilities, one cannot say the award of $60,000 for past income loss is unsupported by the evidence, disproportionate, or wholly erroneous.

[53]        I have come to the same conclusion in respect to the award for future loss. That sum may be a small portion of what Mr. Albert otherwise would have earned, or it may be more than he would have earned. We do not know. There was, however, evidence of his considerable abilities and evidence of the purses available in the boxing world, even in Canada, that would support an award of $838,000. I would not interfere with the award for future loss of earnings.

I‘d like to thank Vancouver lawyer John Cameron for sharing this development with me for publication.

banning trt image

For those of you not up to speed on the topic, the use of TRT is generally prohibited in sanctioned MMA as the use of testosterone replacement agents runs afoul of anti-doping regulations.  There is a concern, however, that athletes are abusing a Therapeutic Use Exemption, and getting around this prohibition to gain an unfair advantage.

In Canada and the US, regulated MMA usually falls under various State and Provincial Athletic Commissions.   These often adopt or largely mirror the World Anti-Doping Agency’s list of prohibited substances.  This, as a starting point, makes the use of TRT (Testosterone Replacement Therapy)  prohibited in sanctioned MMA.  The loophole, however, arises by something known as the TUE (Therpeutic Use Exemption).  You can click here to read the general guidelines for obtaining such an exemption.

The TUE, in theory, exists when a “medication an athlete is required to take to treat an illness or condition happens to fall under the Prohibited List, a Therapeutic Use Exemption (TUE) may give that athlete the authorization to take the needed medicine.“.  Such exemptions can and have been given by various athletic commission for TRT use in MMA.  (You can click here to read a persuasive medical argument as to why the TUE for TRT should not be used in the MMA context.)

While there are various solutions to TRT abuse, such as more comprehensive athletic commission testing, given Dana White’s voiced concerns that using TRT is “cheating” and that he is “100% against TRTa question worth asking is why doesn’t the UFC, or other MMA organizations for that matter, outright ban the use of TRT?

Article VIII of the UFC’s standard fighter contract deals with “fighter’s conduct” and prohibits the use of “controlled or banned substances“.  This section can, in theory, be expanded to specifically prohibit the use of TRT in any circumstances. The stumbling block, however, lies in Human Rights Legislation.

In BC, to take one example, the Human Right’s Code prohibits discrimination in employment based on “physical disability“.  Such language is standard fare in Human Rights legislation across Canada.  If a sporting organization disallowed therapeutic use exemptions, they would likely run afoul of the protections offered by the Code.   One need look no further than Oscar Pistorius to appreciate that medical accommodation, provided it does not give a competitive advantage, is the new normal in sport.

Appreciating that this would likely bar the UFC from imposing an across the board TRT ban, the solution likely lies in testing.  One can hope that Athletic Commissions won’t allow the wool to be pulled over their eyes when it comes to reviewing TUE applications.  Subject to budgetary concerns, Athletic Commissions can also impose more vigorous testing.  Budgetary concerns are a reality, however, and this leads to the last and probably best solution – organizational testing.  There is nothing stopping the UFC and other MMA organizations from contractually mandating athlete testing.  They can be as vigorous as they want it to be.  If the UFC wants to weed out TRT abuse the power is in their hands.