Archive for February, 2014

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The Canadian Bar Association will be hosting a combat sports law seminar on March 24, 2014 in Toronto.  The curriculum will focus largely on MMA and legal issues relating to the regulation of the sport.  Below are the program details:

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Mixed Martial Arts (“MMA”) is one of the fastest growing sports in the world.  It is also one of the most highly regulated.  Increased media exposure has brought with it increased attention to the medical, safety, regulatory and legal issues that exist in this and other full-contact professional sports, including the NHL and NFL.  Gain an essential understanding of the key legal issues, including:

  • The regulatory structure for combat sports and how it differs from other sports
  • Why MMA is potentially safer than other full-contact sports
  • How existing and ongoing medical studies on early detection, treatment and prevention of brain injuries are influencing the legal issues at play
  • Implications of the recent amendments to the Criminal Code of Canada  for combative sports
  • Other fundamental legal issues involved in professional sports

Join our expert panel of sports lawyers in a “Town-Hall” style forum to learn about this exciting area of sports law.

Program Chairs

Layth Gafoor, Lucentem Sports & Entertainment Law PC

Speakers

Michael Mersch, Senior Vice-President of Athlete Relations, Business and Legal Affairs for Zuffa LLC dba, Ultimate Fighting Championship®
David Goldstein, Cassels Brock & Blackwell LLP

Program Details

Date: Tuesday, March 25, 2014
Agenda: 5:30 pm – 6:00 pm Registration & Cash Bar
6:00 pm – 6:30 pm Buffet Dinner
6:30 pm – 8:00 pm Program followed by Q & A period
Location: Twenty Toronto Street Conferences and Events
20 Toronto Street, 2nd Floor | Toronto, ON | M5C 2B8

There is no doubt that the use of testosterone replacement therapy in MMA has been a farce in the past few years with lax and inconsistent standards being applied by various athletic commissions.  Today’s surprise development of the Nevada State Athletic Commission banning TRT TUE’s and urging other athletic commissions to follow suit is a great improvement from the past landscape.

As noted by official MMA record keeper Kirik Jenness, the response from the MMA community has been soundly one sided.

Kirik Tweet re TRT

Despite the overwhelmingly positive response from the MMA community there is work to be done.  As noted at MMAFighting, each jurisdiction is free to carve their own path and despite the NSAC’s influence, no other jurisdiction is bound by their decision.

So should other jurisdictions ban TRT TUE’s?  The unpopular reality is no.  This is not to suggest that a return to the former landscape is desirable.  Realistically, TRT TUE’s should be exceedingly rare as evidenced by the IOC and USADA track record, however, an outright ban is problematic as it can lead to legal claims of discrimination.

TUE’s gained notoriety with TRT, however, TUE’s exist for any number of medically needed medications.   Under the WADA standards adopted by many State and Provincial Athletic Commissions the TUE 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.“.

If a medication is genuinely needed TUE’s must be considered by Athletic Commissions.  Failing to do so can result in violations of Human Rights / Anti Discrimination 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 governments or sporting organization disallowed therapeutic use exemptions, they would likely run afoul of the protections offered by the Code.

The solution is not an outright ban but strict adherence to rigid standards about granting TUE’s.  The wheel does not even need to be reinvented.  WADA standards set out a sensible test for when TUE’s are to be granted, namely:

1. “The Athlete would experience a significant impairment to health if 
the Prohibited Substance or Prohibited Method were to be withheld in 
the course of treating an acute or chronic medical condition.” (Article 
4.1 a. of the International Standard for TUEs.)

2. “The Therapeutic Use of the Prohibited Substance or Prohibited 
Method would produce no additional enhancement of performance 
other than that which might be anticipated by a return to a state of 
normal health following the treatment of a legitimate medical 
condition. 

3. “There is no reasonable Therapeutic alternative to the Use of the 
otherwise Prohibited Substance or Prohibited Method.” (Article 4.1 
c of the International Standard for TUEs.)

4. “The necessity for the Use of the otherwise Prohibited Substance or 
Prohibited Method cannot be a consequence, wholly or in part, of 
prior non-Therapeutic Use of any Substance from the Prohibited 
List.” (Article 4.1 d. of the International Standard for TUEs.)

This is a tough test to meet and if properly applied TRT TUE’s can largely be a thing of the past without resorting to an arguably unlawful outright ban.  Strict adherence to WADA TUE standards, coupled with random out of competition blood testing can go a long way to cleaning up PED abuse in combat sports.

In the latest chapter of the Testosterone saga in combat sports, ESPN’s Outside the Lines shines a spotlight of the prevalence of TRT in MMA and the questionable grounds for which exemptions are granted by regulatory agencies.

Caught up in the mix again is Belfort who deferred questions relating to his need for TRT to Dr. John Pierce of Las Vegas’ Ageless Forever clinic.  Dr. Pierce is quoted as saying that Belfort needs TRT due to hypogonadism and when pressed for a cause of this condition he replied that  “more than likely it is secondary to repetitive head trauma over the years“.

This admission opens a new can of worms for Belfort’s upcoming title fight scheduled to take place in Nevada.  If Belfort’s hypogonadism is secondary to repetitive trauma the NSAC will need to address whether he is fit to be licensed to compete.

The Nevada State Athletic Commission’s rules require enhanced scrutiny when handing out a licence to a combatant of Belfort’s age.  NAC 467.017 requires that applications by combatants 36 and older must be “reviewed by the Chair of the Commission or the Chair’s designee, so that his or her experience and fitness may be considered before the license is issued or renewed.”.  The Commission must also specifically be cognizant of previous head trauma when deciding whether to issue a licence with NAC467.017(3) reading “if an applicant for a license to engage in unarmed combat or an unarmed combatant has suffered a serious head injury…the applicant or unarmed combatant must have his or her application for a license or for renewal of a license reviewed by the Commission before a license is issued or renewed.”

If, due to a lifetime in combat sports, Belfort has been exposed to such trauma that he cannot produce healthy testosterone levels without synthetic supplementation the NSAC would be hard pressed to agree that he remains medically fit to continue in the sport.   As ESPN’s Mike Fish puts it “medical experts question the logic of allowing someone diagnosed as suffering head trauma to step back in an MMA octagon“.   Appreciating that the NSAC exists “to ensure the health and safety of the contestants.” , the Commission will have no choice but to address whether a fighter suffering from ill effects of head trauma remains fit to compete.

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Update – February 28, 2014 – the CNMMAF has now released the details of the format which, while may not be a good measure of who the best MMA competitors are, seems to take care in trying to avoid being labeled a ‘prize fight‘ under the Criminal Code.  Here are the details of the tryouts:

CNMMAF AMMA Try Outs Format

Please be advised of the guidelines for the Try Outs.

1) Host facility will select a panel of top assessment coaches from the following area’s.

  Strength and Conditioning Coaches

 Striking Coaches (Boxing/Muay Thai/MMA… etc)

 Grappling Coaches (wrestling/judo/jiu jitsu…etc)

* also a selection of judges, referees, officials (can assist in the screening and selection process, as they are extremely valuable)

This decision is up to the Host Group. Each group eg: Strength & Conditioning Coaches (will select a captain from their own group..this is up to the coaches in each group to elect one) The captain will instruct the coaches on the format of the conditioning exercises that will be scored.

This will consist of a minimum of 10 exercises that will test their over all conditioning and strength. We will forward examples of exercises (but I am fully confident that the Strength Coaches can come up with them) All exercise’s will be the same duration for everyone tested (depending on the number of participants…there might be numerous testing groups in one day)

Striking Coaches will do the same as above (select a captain). All participants will demonstrate their striking skills (pad holding, bag striking,shadow boxing, etc.) Coaches will have them demonstrate offensive and defensive maneuvers …. much like a testing for a belt in martial arts.

Grappling Coaches will do the same (select a captain) All participants will demonstrate their grappling skills (rolling with each other…as well as be tested by the coaches for their knowledge of techniques) the duration of rounds can be 3 or 5 minute rolls.

This procedure is not a complicated one (this is similar to what the UFC uses in it’s Ultimate Fighter Show) all that is required is a fair selection and equal testing criteria for everyone. Whatever techniques are selected, or exercises for the strength and conditioning ..they must be consistent.

Each competitor will have a scoring sheet that he/she will take with them to each testing station. there will be a scoring sheet (After each testing station is complete..the captain will take them all to the next scoring station) The competitors will not know their scores until the end.

There will also be a comment section where the coaches can comment. As a reminder due to the current legal issues with Amateur MMA

we must be in total agreement that this is not a fight..no head striking allowed what so ever. These are NOT pre-arranged matches!

As a special note to the selection committee. It is very likely that you will have a closed door meeting when it comes down to the final selection.It is also likely that you will have a call back at the end of the day to assess (undecided candidates)

2) Athletes

 Age Requirements must be acceptable.

 All participants must be able to legally enter the USA.

All participants must submit a brief resume (identifying their involvement in combative sports)

 All participants must be on time

All participants must demonstrate good sportsmanship (regardless of the out come) All participants must come with full equipment…gloves..shin guards…mouth pieces etc. just for extra safety precautions. (safety of the competitor is first)

All participants will sign a liability waiver.

> all participants must sign a media release form (video taping or media coverage)As a special note: It is the coaches responsibilities to leave the athletes with positive experience regarding their abilities and the areas that they need to improve on etc. (for they may be tomorrows champions)

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Further to my recent discussion of the Canadian National Mixed Martial Arts Federation’s planned ‘national championships’, the CNMMAF appears ready to test the boundaries of the Criminal Code in their efforts to field a Canadian AMMA team.  The road to the national championships will apparently seek to get around the section 83 prohibition of prize fights by hosting ‘tryouts‘ at various gyms and dojos.  The CNMMAF has recently updated their website with the following announcement:

The Canadian National MMA Federation has announced it will have a Nation wide Team Canada MMA Tryout , The team selections with be based upon results from the tryouts and recommendations from each participating Province.  Mr. Pellitier , The CNMMAF National Director is ensuring the criteria is fair for all provinces and that the selection process is non bias and include fair representation from all participating provinces and is within the legal guidelines of Section 83 of the Criminal Code of Canada

It is unclear exactly what the tryouts will entail other than sparring being a possibility and assertions that the competition will be fashioned similar to the tryouts held by Zuffa when screening candidates for TUF.   The official CNMMAF website only has this to say about the tryouts:

We will post all the information for the tryouts within the next week. And contact any the Athletes that have preregistered to update them.  Do not cut weight because if you are selected for the National team you will be required to weight in everyday.  Also , This is not a fight , We have to comply with section 83 of the criminal code , we have a evaluation process that will allow us to pick the athletes we feel will best represent CANADA at the world Championships. We ensure any athlete a fair and democratic process across the country , and a fair assessment to determine the best Athletes for Team Canada.

Will this strategy of implementing ‘tryouts’ instead of ‘fights’ work to get around the Criminal Code?  Only time will tell.

The Criminal Code captures non sanctioned amateur MMA competitions so long as they are “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“.    This is a very wide net and certainly can be applied to competitive amateur tryouts.  There is no magic in avoiding the Criminal Code by hosting an event in a gym/dojo, or by attaching the labels ‘tryouts’ or ‘sparring’ to a competition.  All that matters is whether the above technical language is met.  If yes a prosecution can follow.  It also does not matter if you call it a fight or not as the Criminal Code also prohibits “encounters” which are arguably a broader category

To my knowledge section 83 has never been used to go after legitimate training and sparring and arguably does not extend so far.  The pre arranged ‘encounter or fight‘ likely must go beyond training and instead have a competitive nature to it.  Tryouts which seek to determine who goes on to compete in ‘national championships’ certainly can be caught by the Code depending on what occurs in the tryouts.  Time will tell if this is an effective strategy to avoid the Criminal Code or if various Provincial authorities are prepared to clarify the shades of grey in section 83 with prosecutions following these events.

It was previously announced that an amateur MMA event was scheduled to take place in Ontario with the winners receiving a “free ride” to the CNMMAF national championships.  The CNMMAF has now announced an overhaul of this format stating that “Due to the legalities of the CNMMAF hosting a National Championships…we have voted upon with our Executive membership to hold a Team Canada Tryouts in the Months of February and March to give every Amateur MMA Athlete in all Canadian provinces the opportunity to compete to represent Canada as a part of Team Canada“.

The announcement goes on to site a number of Provincial ‘tryouts‘ with events reported to take place in BC, Alberta, Saskatchewan, Manitoba, Ontario and PEI.

If the tryouts include actual fights there will continue to be ‘legalities’ that can get in the way.  Amateur MMA is not legal across all of Canada.  Some of the reported Provinces, namely Ontario, PEI and Manitoba, don’t yet have the proper laws in place to allow amateur MMA events to be hosted in compliance with the Criminal Code.   Interestingly a lot of the events are reported to take place in local Gyms.  It is worth noting that there is no “dojo / gym exception” in the Criminal Code.   All that is required to be caught by the language is for the event to be “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“.

If these pre-arranged ‘tryouts’ include fights the possibility of criminal prosecution remains a live threat.  While the road to growing amateur MMA in the country with a view to international participation is laudable, there are no shortcuts and the Criminal Code’s requirements must be kept in mind.

There are a few developments in Nova Scotia which are noteworthy and point to the need for legislative overhaul for both professional and amateur MMA.

On the amateur side, it is reported that a body called “The Nova Scotia Amateur Mixed Martial Association” will be designated as an authority to oversee amateur MMA in the Province.   The article seems to suggest that the body derives their authority from the Nova Scotia Boxing Authority.

If that is the case there is a problem.  As previously discussed, the Nova Scotia Boxing Authority does not have the authority to oversee amateur contests.   The Boxing Authority Act, the law that created and empowers the NSBA, specifically limits their authority to oversee “professional” contests.  The Nova Scotia government confirms the body was created solely to oversee professional contests.

If the NSBA can’t oversee amateur contests they certainly don’t have the authority to delegate this power to others.

Unless there is a law I am not aware of designating the NSAMMA as a body capable of overseeing amateur MMA in the Province in compliance with section 83 of the Criminal Code the legal landscape is problematic.  A quick search of Nova Scotia’s OIC’s fails to reveal such a designation.  If anyone is aware of such a law or OIC I would appreciate it being pointed out for me.

The issues don’t end on the amateur side.  It was recently announced that the UFC will host an event in Halifax on October 4.  While the NSBA can legally oversee such an event the current rules on the books are a far cry from the unified rules that the UFC operates under.   In fact Nova Scotia’s official regulations addressing the rules of the sport speak to pure boxing such as requirements that the bout take place in a ring with ropes, at least 8 oz gloves are used, counts for downed boxers, fouls such as using knees, holding an opponent and wrestling.  So professional MMA is legal but the rules of actual boxing apply.

If amateur MMA is going to be legally hosted in Nova Scotia the Province needs to pass a law in compliance with Section 83 of the Criminal Code.  Further the Province needs to overhaul the official rules in place for MMA if there is to be any integrity to the NSBA’s oversight of such contests.

Earlier this week the UFC released a press release addressing legal steps they are taking to crack down on illegal streaming of their pay per view product.

The UFC states that “Lonstein Law Office has successfully prosecuted hundreds of claims for the UFC organization for sites illegally streaming content and individual users since 2007.“.  It is unclear from the press release whether any of these successful prosecutions involve contested cases or whether these all relate to default judgments where the Defendants failed to respond to the charges against them.

Following one case which received press this week (Zuffa v. Pryce) it’s been reported that All in all streaming two Pay-Per-View events cost (Mr. Pryce) $11,948.70.”.  Mr. Pryce was sued for illegally intercepting or receiving cable pursuant to the Communications Act.  He failed to respond to the charges which resulted in default judgement.  In law this “constitutes an admission of all well-pleaded factual allegations in the complaint.”  The Court went on to award damages of $1,000 per pay per view plus enhanced damages, attorney’s fees and costs.  This all results in a scary sound bite that illegal streaming can cost you over $11,000.

Iain Kidd of BloodyElbow conducted some commendable reporting digging into the issue further.  He highlights a 2012 Nevada Judgement (Zuffa v. Justin.TV)  where Zuffa sued under the same statue.  The Defendant disputed the charges and successfully struck many of the allegations with District Judge Robert Hunt noting that

 In essence, Zuffa alleges that Justin.tv’s users copied Zuffa’s UFC event and then rebroadcast the UFC event over the internet.[5] This is not the type of conduct properly addressed by the Communications Act, but by copyright law (and, potentially, trademark law) because Justin.tv had no relationship with the original cable or satellite signal: by the allegations, Justin.tv did not receive or intercept any actual cable or satellite signal or broadcast. The Court finds no evidence in the statutory language, other cases, or legislative history that the Communications Act addresses this type of conduct or was meant to bolster or act as a separate type of copyright claim.[6] The Court refuses to extend the law in this manner. Thus, the Court dismisses Zuffa’s eleventh and twelfth claims.

Although this case dealt with an intermediary and not an end individual user the Court’s findings throw some cold water on the headlines which only followed the Pryce case.

It is unclear if any of the “successfully prosecuted hundreds of claims for the UFC ” involve contested cases or if all of them are mere admissions obtained through default judgement.  To clarify I reached out to the Lonstein Law Office requesting further insight into this.  Below is an excerpt of my request:

As you are likely aware Zuffa has recently issued a press release stating “Lonstein Law Office has successfully prosecuted hundreds of claims for the UFC organization for sites illegally streaming content and individual users since 2007. “

 I write to inquire if there are any publicly available reasons for judgment documenting these successful prosecutions.  I would like to highlight some of the jurisprudence on my blog and would appreciate if you can share any judgements for this purpose.   Also, have all these successful prosecutions involved default judgements or are there any contested cases that have gone to trial that can be highlighted?

At this stage the Lonstein Law Office has not responded but if / when they do I will be happy to shed further light on the issue of end user liability for illegal streaming of Zuffa’s Pay Per View products.

Positive marijuana drug tests in MMA have made headlines again this week with both Jessica Eye and Yancy Medeiros finding themselves on the wrong side of the rules.  In addition to facing various penalties they both had their respective victories overturned to a ‘no decision‘ which is a power wielded by most athletic commissions following a failed drug test.

There is little dispute that where an athletic commission prohibits a licence holder from using marijuana the guilty athlete can be exposed to discipline and financial penalties.  Changing the result of a bout from a win to a ‘no decision‘, however, arguably goes too far.  Such a decision also is vulnerable to judicial review unless a good reason can be provided for such use of discretion.

In the case of Yancy Medeiros’ failed drug test, the Kentucky Boxing and Wrestling “may change the result of that contest or exhibition to a no decision.” under section 43(f) of the Kentucky Administrative Regulations.  Similar language exists in Texas where Jessica Eye failed her drug test with Rule 61.30(n) allowing the bout result to be changed “as the executive director may direct.“.

There is no doubt commissions can change the win to a no-decision however the key word is “may“.  If a government body has discretion to act the law does not allow decisions to be made in an unfettered manner.  Discretion needs to be used taking reasonable factors into account.  Failing to do so can amount to unlawful fettering of  discretion and courts can overhaul such decisions.

Prohibited substances in combat sports can fall into two broad categories; those with and those without performance enhancing qualities.  If a failed drug test relates to a substance without performance enhancing qualities then there is no good reason for changing a bout result.  Administrative penalties can serve as an adequate punishment and deterrent for those who break the rules.

In the case of marijuana the The Association of Boxing Commissions Medical Committee has issued a consensus statement that “there are no good data at present to suggest that marijuana acts directly as a performance-enhancing drug” .  Athletic Commissions ought to take this medical evidence into account when using their discretionary powers following a failed drug test.  Absent proof that a failed drug test had a performance enhancing quality to it bout decisions should be left intact and commissions should limit punishment to fines or licence suspensions.  Commissions who ignore such evidence do a disservice to the integrity of bout results and further are vulnerable to having their decisions overturned through judicial review.

In my recent posts addressing Athletic Commission liability for negligent PED testing standards (archived here and here) I highlight that frequent out of competition blood tests would be the gold standard for weeding out cheats in combat sports.  One defense commissions may have if ever on the wrong end of a lawsuit would be to point to the cost of implementing such tests.  The cost / benefit analysis is something a court can look at in negligence litigation in deciding whether the standard of care has been met.

But what if cost was not a factor?  Then there would be no excuse for failing to implement meaningful PED testing standards as opposed to those filled with “obvious and glaring weaknesses“.  This appears to now be the case for the Nevada State Athletic Commission when it comes to UFC events.

Yahoo Sports reports that the UFC “has told commissions that it would pay to have any fighter it has under contract tested at any time.”

More importantly, this has been verified by the NSAC with Yahoo Sports further reporting:

Yahoo Sports contacted Francisco Aguilar, the new chairman of the Nevada Athletic Commission, who said Fertitta had indeed made such an offer.

“The UFC has been phenomenal to work with in regard to the enhanced testing of the athletes we’re looking to do,” Aguilar said. “All that has ever been communicated to us from Lorenzo, Lawrence [Epstein, the UFC’s chief operating office] and Marc [Ratner, its vice president of regulatory affairs] is that they’re in favor of testing. At no point has the UFC ever pushed back on any testing request we’ve made. We just did an enhanced testing program with Travis Browne and Josh Barnett for their fight [in December at UFC 168] and the UFC was fully supportive and did what we asked.

“Not only haven’t they pushed back, they’ve been the opposite. They’ve told us they’ve been open to any and all testing and would gladly pay for whatever tests we wanted to do.”

The NSAC has the ability to test any licence holder both in and out of competition.  If the licence holder is under UFC contract then the cost to the NSAC will be $0.  The ball is now in their court to clean up doping.  Failing to do so is harmful for competitors and the sport and the road to legal liability is that much smoother with the above admissions coming to light.

Earlier this year I highlighted why the anticipated Canadian Amateur MMA Championships cannot lawfully be held in Ontario given the lack of Bill S-209 compliant laws in the Province.

It now appears that the planned event has hit a wall with local authorities.  Alex Gasson, who operates the Amateur Mixed Martial Arts Championship Series, has authored an on-line petition stating that “Municipalities/Permit Departments are denying permits for Amateur Mixed Martial Arts and even Non-Striking Combative Sports events citing S209. ”  Although this may be frustrating for those involved it should not come as a surprise given the clear requirements set out in S-209 to lawfully host MMA competitions.

While the petition does not specifically state that the AMMACS 3 tournament has been cancelled it appears safe to conclude that it is now in jeopardy given the lack of cooperation from provincial authorities.  The petition specifically acknowledges that the Canadian Combat Alliance and the Ontario Grappling Association (the authorities that AMMACS advertises as the Provincial and National sanctioning bodies) have no legal authority to sanction AMMA in Ontario with the following request for legal change:

“WE, the undersigned, demand written permission from an appropriate authority to officially render Canadian Combat Alliance (CCA), its affiliates, & Ontario Grappling Association (OGA) “Legal” to run Amateur Mixed Martial Arts, Grappling – Gi/NoGi, and Pankration, in light of S209 for immediate continuity of these sports.”

 

As previously discussed, the proper route for change is to lobby the Ontario Government to pass a Bill S-209 law legalizing amateur MMA in the Province and setting out how events can lawfully be held.  Participating in an event without this framework can lead to criminal prosecutions as demonstrated recently in Saskatchewan.