Insight Into Zuffa’s Concussion Lawsuit Defence Strategy

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Like all major sporting organizations, the UFC is aware of legal threats their business model poses and considers legal strategies in response to these.

On March 25, 2014 the UFC’s Michael Mersch and Tom Wright along with two local attorneys hosted the Canadian Bar Association’s Professional Development course “The Legal Landscape of Full-Contact Professional Sports:  Impacts of Developments in the Study of Brain Injuries and the Emergence of Mixed Martial Arts“.

During the conference some interesting legal issues were canvassed including the potential of Zuffa facing concussion related litigation similar to the recent NHL and NFL class action lawsuits.  In the course of the conference some of the contemplated responses to this legal threat emerged.

Lawyer David Goldstein, who works for Cassels Brock & Blackwell, the firm Zuffa used when lobbying to overhaul s. 83 of Canada’s Criminal Code, commented as follows:

Given the NFL attention other lawsuits started…So why are we talking about that at an MMA event?  The thinking being, if you combine big dollars which we see MMA has, the UFC has, and full contact sport, the question is will some enterprising plaintiff, enterprising plaintiff’s lawyer, sue the UFC, Bellator or any other MMA organization next?  …

We know that in the course of…Mixed Martial Arts…. there will be contact with the head so what are the potential defenses?  …

As far as the standard of care…(the legal requirement is) what’s reasonable….the concept that it has to be perfect or 100% certain or iron clad its just not legally viable…

A big point is causation.  One of the other defenses on which you’d expect a league or organization to rely is let’s say you can show you were concussed, let’s say you can show that you suffered damages from those concussions and lets say even that the activity that caused the concussions was clearly football, hockey, MMA.  You don’t wake up a 26 year old professional defensive lineman or anything else.  You play from youth all the way through. So the issue of trying to show that the concussions that you suffered while in the NHL, NFL, UFC, what have that would be a very difficult thing to have to show.

Mr. Goldstein goes on to quote from retired MMA fighter Mac Danzig’s blog post where he discusses suffering damage more so from training than competing as the type of evidence that would be used when attacking claims of causation.

Mr. Goldstein continues as follows:

There is sparring, there is training as a youth, there are amateur fights, there are pro fights in different organizations.  At the end of the day if an MMA concussion lawsuit did go through to trial (causation) would be a very difficult thing to show.

And then lastly, voluntary assumption of risk,  there is the legal doctrine that no wrong is done to one who is willing.  The concept being if you know what you are signing up for, you sign up for it, society has deemed it an acceptable activity and that’s where the legalization comes in, its not on the NFL, NHL, UFC to prohibit an activity that’s legal.

UFC contracts…talk about the inherently and abnormally dangerous activity and the athlete being willing and able to accept those risks.”

Mr. Goldtein then distinguishes the NFL litigation from potential MMA concussion litigation noting the allegations of fraud driving the NFL litigation.

The panelists also note that since professional MMA is government regulated deference is given to their oversight and imply that protection would be sought from this oversight should litigation arise.

It was an insightful conference and for those interested video of the conference is available online for anyone (non lawyers included) who wish to register.



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