Archive for October, 2013

Senator Runciman Image

Earlier this month I highlighted BC’s stance that professional kickboxing and muay thai events are not allowed under the updated Section 83 of the Criminal Code.

BC interprets the ability of the Province to regulate pro MMA as excluding the sport’s component parts.  If this interpretation is correct than all of the competent sports that make up MMA (except for boxing) such as Brazilain Jiu Jitsu, Kickboxing, Muay Thai, and Wrestling are illegal professionally across Canada.  This restrictive interpretation seems inconsistent with Bill S-209’s intent.   The purpose of Bill S-209 was to allow individual Provinces to decide which combat sports would be legal within their respective borders.

If BC’s interpretation is ever challenged in Court the presiding judge will need to look into the ‘legislative intent‘ behind Bill S-209.  What better way to find this out than to ask the man who wrote the law? I reached out to Senator Bob Runciman, the individual who drafted Bill S-209, and asked him if BC’s interpretation is consistent with the law’s intent.  Here is the exchange:

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Senator I am a lawyer in BC and keep track of regulatory developments in Canadian combat sports at my Canadian MMALaw Blog.

As you may be aware, BC has taken the position that while Bill S-209 has allowed Provinces to legalize pro MMA and Boxing, they take the position that no other combat sports can be regulated on the Pro level.  You can click here for more on this:

http://canadianmmalawblog.com/2013/10/25/bc-athletic-commissioner-explains-why-pro-kickboxing-muay-thai-are-illegal-in-bc/

An equally plausible interpretation is that if Bill S-209 allows pro MMA to be regulated all of its component sports can also be regulated (such as kickboxing).

I have read through the Hansard transcripts and can’t find any comments that clearly address this issue.

As the man who drafted the Bill, can you comment on its legislative intent.  Was it designed to allow Provinces to choose which professional combat sports they wish to regulate (ie not just Boxing and MMA, but all the individual martial arts that make up MMA) or was the intent as narrow as BC interprets it.

Your comments will be much appreciated.

Senator Runciman responded as follows:

“Mr. Magraken,

Thank you for your inquiry concerning the legislative intent of Bill S-209 and its consequences for combative sport in Canada. My intent when introducing this bill was to broaden the definition of combative sport to reflect modern realities. I neither intended nor expected that professional sports previously deemed legal by provincial regulators should now be regarded as illegal. Bill S-209 was designed to broaden, not narrow, the scope of legal combative sports.

Sincerely,

Senator Robert W. Runciman

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Given Senator Runciman’s views it will be interesting to see if BC softens their interpretation and if this will help guide other Provinces in determining the scope of their powers to regulate professional combat sports under S. 83 of the Criminal Code.

Whether professional kickboxing and Muay Thai events can legally be sanctioned in Canada is debatable due to the present wording of Section 83 of the Criminal Code.

As previously discussed, British Columbia has taken a very restrictive interpretation of section 83 and deem these sports illegal in the Province.   I reached out to BC’s Athletic Commissioner to elaborate on BC’s position.  Dave Maedel responds as follows:

“Thank you for your email regarding professional kickboxing in BC. As you know, the federal government voted in June 2013 to pass Bill S-209 exempting mixed martial arts from the Criminal Code. This change to the Criminal Code, however, does not specifically identify professional kickboxing. According to the Criminal Code, the two professional combat sports that the Province is authorized to regulate are boxing and mixed martial arts. Until that changes, those are the only professional combat sports the Province will regulate. Because the Criminal Code falls under federal jurisdiction, members of the kickboxing community who have concerns may wish to contact their local MPs.”

It is unrealistic that section 83 will be further amended any time soon no matter how much pressure is put on local MP’s.  A more realistic alternative would be for an affected party to ask the BC Supreme Court to judicially review the Government’s refusal to licence a professional Kickboxing  / Muay Thai event.  It may be that a Court agrees with the Government’s interpretation, however there is also a possibility that a Court will find that if the Criminal Code allows Provinces to regulate MMA, they can also regulate all of the component sports that make up MMA.    Whatever the outcome judicial interpretation would bring welcome clarity to this situation.

A party with standing (ie – a person directly affected by the Government’s refusal to issue a pro kickboxing licence on the above grounds) can bring a petition to the BC Supreme Court to review the Government’s interpretation of the law.  Specifically, under section 2 of BC’s Judicial Review Procedure Act the Court can provide a declaration with respect to the Government’s interpretation of the statutory power vested in them by section 83 of the Criminal Code.  If a Court agrees that section 83 allows Provinces to regulate all of the professional martial arts that make up the component parts of MMA then that will pass the issue back to the Province to reconsider whether they wish to legalize professional kickboxing and Muay Thai in BC.

An interesting and often controversial topic is the overlap of the criminal law with sports violence.  MMA is not immune from this analysis as there is nothing that keeps the 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 MMA.

Reasons for judgement were released this week by the Court of Queen’s Bench of Manitoba dealing with the topic of criminal assault in sports.  While the decision dealt with soccer, not MMA, there are some broad legal principles discussed that are of value.  In this week’s case (R v. Adamiec) the Defendant was involved in a “grotty and combative” soccer game that was “marred by unsportsmanlike conduct and rough play“.  While going after a loose ball the opposing goalie “dove towards the ball, grabbing it (and the Defendant’s) leg at the same time.  (the Defendant) stumbled and attempted to get his foot out of the (goalie’s) grasp by kicking.”  Once freed the Defendant fell backwards and while falling he “continued kicking” the goalie.  This resulted in “serious long lasting injuries” to the goalie’s neck and jaw.

The Defendant was criminally prosecuted for assault and convicted at trial.  The Court of Queen’s bench overturned the conviction noting that the incident occurred “in very close proximity of play” coupled with the fact that the deed was not “gravely” beyond the sport’s playing culture.  In addressing the issue of criminal assault in contact sports the Court provided the following general comments:

[27] Because of the social utility of sports… the application of the
criminal law is adjusted in the sporting context. The common law accepts that
players of organized contact sports implicitly consent to some forms of
intentional contact against them, and the risk of injury that, outside the sporting
arena, would otherwise constitute the crime of assault. In R. v. Brown, [1993]
2 W.L.R. 556 at 592-93 (H.L.), Lord Mustill stated:
Some sports, such as the various codes of football, have
deliberate bodily contact as an essential element. They lie at a mid-point
between fighting, where the participant knows that his opponent will try
to harm him, and the milder sports where there is at most an
acknowledgement that someone may be accidentally hurt. In the contact
sports each player knows and by taking part agrees that an opponent
may from time to time inflict upon his body (for example by a rugby
tackle) what would otherwise be a painful battery. By taking part he also
assumes the risk that the deliberate contact may have unintended
effects, conceivably of sufficient severity to amount to grievous bodily
harm. But he does not agree that this more serious kind of injury may be
inflicted deliberately.
[28] Therefore, for the purpose of applying the legal principle of consent, the
general rule that a person cannot consent to serious harm that is intended and
caused is subject to exception, if the activity in question engaged in has
“significant social value”…

[33] The application of force by an athlete in compliance with the rules of a
particular sport during play, while not conclusive for the purpose of the criminal
law, is firm indication that the conduct is not criminal. See R. v. Bradshaw
(1878), 14 Cox C.C. 83 at 85 (Assize Ct.), Barnes at p. 914, and Cey at p. 490.
[34] In contrast, extreme violence on the sports field away from play (i.e. “off
the ball”) contrary to the rules of a particular sport has resulted in successful
prosecutions for assault related crimes. Negating consent to contact in such

situations is less controversial as the facts typically speak for themselves and cry

out for the intervention of the criminal law. For example: Ferguson v.

Normand, [1995] SCCR 770 (head butt of an opposing player prior to a free
kick in a professional soccer game in Scotland); McSorley (slash to head of an
opposing player from behind, away from play in a professional hockey game); R.
v. Mayer (1985), 41 Man. R. (2d) 73 (Prov. Ct.) (sucker punch to player with his
back turned during a break from a junior hockey game). See John Barnes,
Sports and the Law in Canada, 3d ed. (Markham, Ont.: Butterworths Canada
Ltd., 1996) at 255, and Gardiner, Sports Law at p. 517.

The full judgement can be found here: R v Adamiec Consent to Harm

SMAA AMMA Rulebook logo

Further to Saskatchewan’s Order in Council passed earlier this year legalizing amateur combat sports, the Province has now published their rules for amateur MMA, Full Contact Martial Arts, Kickboxing and Muay Thai.

You can access a copy below:

SMAA Amateur MMA Rulebook

SMAA Full Contact Kickboxing and Thai Boxing Rulebook

In addition to publishing the Rules, the SMAA website has a list of upcoming sanctioned amateur events listed including the Province’s first properly sanctioned amateur MMA Event scheduled to take place this weekend.   With this Saskatchewan can now be welcomed to Canada’s legal MMA landscape!

It is no secret that PED abuse exists in the world of elite sports and MMA is no exception.   Recent developments are shining a spotlight on this topic and the question is will this become a crisis for the sport or an opportunity.

It all started with Georges St. Pierre volunteering for enhanced testing above and beyond the minimal standards of Athletic Commissions.  It ended in a dysfunctional mess with a rift between GSP, his upcoming opponent, the UFC and the Nevada State Athletic Commission.

Now, LaPress.ca reports that GSP is voicing displeasure with the UFC’s lack of support of his enhanced testing efforts.  He is quoted  (with the help of Google translate) as follows:

  • “There are things I can not say. I do not want to get back to the UFC because it is my employer. However, I do not take journalists for idiots. They are able to read between the lines. They are able to see what happens. “
  • “There Doping in my sport, do not be fooled,” 
  • “It bothers me a little fight against guys who use performance-enhancing drugs, because it is not fair. It’s a nasty difference in training, argues Georges St-Pierre. There are those who say: “Doping, it does not bother me.” Me, it bothers me. But I’ll do it anyway, the fight. Without accusing anyone, if there are some who do not want to do the tests, I’ll do the fighting. It will not be the first time. But it’s just that I’m getting a little tired. “

This rift between the sport’s highest profile athlete and the world’s top promotion may turn ugly.  It does not have to, however.  The sport’s long term interests depend on continued inroads into the mainstream sports market.   Being clouded in potential PED scandals does not help this end.   Addressing PED abuse, on the other hand, is in everyone’s interests.   GSP and the UFC should work together and use this opportunity to implement some sensible reforms to address the PED situation.   Weeding out PED abuse will not only enhance participant safety but also assist with mainstream acceptance of the sport helping fuel its long term growth, turning this potential dark cloud into a win-win situation.

New York MMA Ban

I’ve now had a chance to review the recent judicial decision addressing Zuffa’s challenge to New York’s Combative Sports Ban (Zuffa et al v. New York).  While it is true that New York was successful in dismissing most of Zuffa’s arguments, they failed to strike a key aspect of the lawsuit; the allegation that the New York Combative Sports Ban was unconstitutionally vague as it is applied by the State of New York.

The New York Combative Sports Ban exempts ‘martial arts‘ from its scope and events which are sanctioned by various specified organizations do not run afoul of the ban.  In the course of the lawsuit New York agreed that the UFC could legally “promote a professional MMA event in New York if the event were sanctioned by one of the exempt organizations.“.

New York then flip flopped on this position reversed course arguing “the Ban would “not permit a professional MMA event in New York even if sanctioned by an exempt organization.”

US District Judge Kimba Wood pointed to this flip flopping along with the State’s ever changing definition of ‘professional‘ contests as a sufficiently vague track record to let Zuffa’s lawsuit continue.  In other words, New York has no one but themselves to blame for a portion of the lawsuit surviving.  In allowing Zuffa’s vagueness claim to continue the Court noted as follows:

Although the distinction between professional and amateur is no doubt clear in some
cases, Plaintiffs have raised serious questions regarding the utility of such generic definitions in
differentiating close cases. At one point, state officials defined a “professional” match as “one
where compensation is received by the contestants for their participation.” (FAC ¶ 174). At
another point, state officials defined a “professional” match as one where “tickets were sold for
the event.” (Id.). Subsequently, the SAC took the position that a “professional” event involved
not only events where the fighters are paid, but also where the fighters include a martial arts
instructor or martial arts school owner. (Id.).10
In light of the Ban’s failure to define “professional” or “amateur,” and the SAC’s alleged
inconsistent interpretation of these words, the Court finds that Plaintiffs have sufficiently alleged
this as-applied challenge.

Moncton Logo

As previously discussed, Bill S-209 did not make MMA legal in all of Canada, instead it made the sport illegal by default and forced Provinces to pass appropriate laws if they wished to change this.  Provinces that fail to act in a timely manner jeopardize the local landscape of the sport.  Such a situation appears to now be unraveling in New Brunswick.

The Moncton Boxing and Wrestling Commission has been sanctioning combat sports and MMA for years although the ability of the Commission to get around the Criminal Code is questionable given the Province’s legal landscape.   I am now advised that the City has pulled the commission’s ability to sanction all combat sports outside of boxing and wrestling.  The City is concerned that given the now clear language of section 83 of the Criminal Code that New Brunswick lacks the proper top down framework to allow the City Commission to regulate MMA, Muay Thai and Kickboxing.  Moncton has taken the position that the authority of the Commission is now limited to boxing and wrestling and that MMA, Muay Thai and Kickboxing promoters “are left to judge for themselves if they can carry on events without violating the Criminal Code“.

This is an example of a problem which could have been avoided by proactive laws at the Provincial level in the face of Bill S-209.  Provinces such as BC have passed appropriate laws giving combat sports a clear framework in BC. New Brunswick, along with many other Provinces, need to do the same.  I have asked the Province for comment on this situation and will update this article once they respond.

Yesterday I questioned the Wisconsin Department of Safety and Professional Services’ decision to uphold a win by Ben Rothwell after he tested positive for elevated TRT.  Dr. Johnny Benjamin was quick to identify a more important issue, the fact that a licence was issued in the first place.

Rothwell was granted a Therapeutic Use Exemption for Testosterone Replacement Therapy.  While there is a live debate about whether a fighter needing TRT in order to address an underlying medical condition should ever be cleared to fight, Rothwell’s circumstances are particularly troubling.

Rothwell explained that his low testosterone was a result of hypogonadism which was caused by historic brain trauma.   He is quoted as follows:

I had applied for TRT after an endocrinologist and Wisconsin athletic doctors diagnosed me with hypogonadism. They felt it was caused by a car crash in 1999 that left me with severe head trauma and in a coma. Doctors told me TRT was something that could stop the hypogonadism from degrading my body.

Dr. Benjamin raised the following concerns via twitter:

dr benjamin tweets trt head trauma

dr benjamin tweets 2

 

 

 

 

 

 

 

 

 

 

 

 

As Dr. Benjamin explains “If a fighter suggests that his significantly low T is the result of years of head trauma sufficient to cause brain (pituitary) damage, then the fighter should not be cleared for competition due to significant brain injury.

Athletic Commission’s exist to regulate combat sports first and foremost for participant safety.  Taking a look at the Wisconsin Department of Safety and Professional Services, they are tasked with licencing combatants and pursuant to SPS 196.01(3)(i) are supposed to deny a licence to any applicant who “Is not physically fit to engage in professional mixed martial arts competition“.

Brain trauma is cumulative.  Negative MRI’s and CT Scans are not conclusive proof that a fighter is fit to be licensed.  If a combatant, by self admission, sustained historic brain trauma of such severity that there are lingering health consequences over a decade later with objective diminished capacity an Athletic Commission is on questionable footing if they choose to licence such an applicant.

MMA Junkie broke the news that Ben Rothwell tested positive for elevated testosterone following his victory over Brandon Vera at UFC 164.

The Wisconsin Department of Safety and Professional Services, which oversaw the event, provided an Athletic Commission’s equivalent of a slap on the wrist for this violation by issuing Rothwell an ‘administrative warning’.

Perhaps more surprising than this, however, is the fact that it is reported that the WDSPS will not be overturning the win for the Wisconsin native.  Kevin Iole obtained the following comment from the UFC’s Marc Ratner:

The state had never given out a TUE before and there was nothing in their administrative laws and statutes that allowed them to do more than write him a letter,” said Ratner, the long-time former executive director of the Nevada Athletic Commission. “We always try to do the right thing everywhere. If he had had this result in Nevada, he’d have gotten a nine-month suspension, so we felt that was the appropriate thing to do in this case, to suspend him for nine months.”

On closer scrutiny, however, Wisconsin does appear to have the power do more than simply write a letter.  Here is the breakdown:

SPS 196.03(1) reads as follows “Mixed martial arts contestants may not engage in the personal use of drugs, including all anabolic steroids or controlled substances, pursuant to s. 444.095 (3) (c), Stats., while participating in a bout, except when prescribed, dispensed or administered by a licensed physician or dentist for a legitimate medical condition.”

Apparently the WDSPS was satisfied that Rothwell suffered from a “legitimate medical condition” and granted a TUE for TRT.  Like all exemptions, this TUE is not a free for all and the commission set upper limits.   As Iole reports, Rothwell’s results were above the acceptable range.  It is hard to appreciate how having limits higher than he was cleared for does not put Rothwell in violation of this section.   Accepting there is a violation of 196.03(1) we next look at the remedies.

Failed Drug tests result in mandatory discipline under Wisconsin law with 196.03(9) reading as follows “If laboratory testing of a contestant’s specimen test positive for any alcohol, drug, controlled substance, anabolic steroids or illegal enhancement substances, the contestant shall be disciplined.

In addition to mandatory discipline (which includes the possibility of more than a mere letter, but also  suspensions under 196.01(1)), the section goes on to note that the bout should be changed to a no contest with the section going on to require the following:

A contestant who is disciplined and who was the winner of a contest shall be disqualified and the decision shall be changed to no contest. The results of a contest shall remain unchanged if a contestant who is disciplined was the loser of the contest.”.

The question now is, will Vera ask the WDSPS to follow their own rules or let the loss stay on his record?