Archive for May, 2014

UFC 174 promotional poster

(Update – July 11, 2014 – The BCAC has changed their position and did indeed implement an out of competition test prior to UFC 174 on Bagautinov)

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UFC 174 will be the promotion’s first event regulated under the newly formed Office of the British Columbia Athletic Commissioner.

With the big show coming to town BC’s Athletic Commissioner recently released their PED policies outright banning Testosterone Replacement Therpay TUE’s.

Despite this aggressive stance on TRT, the BCAC appears to be limiting their testing to post event screening.  Unlike the Nevada State Athletic Commission who are slowly embracing a policy of more out of competition testing, the BCAC apparently is not prepared to take such steps at this time.  I contacted BC’s Athletic Commissioner, Dave Maedel, asking for the following clarification of their anti doping measures:

the sections dealing with testing procedures are not clear on whether out of competition tests will be conducted or if tests are limited only to events.  Is it your office’s position that out of competition testing (for licensed combatants) is allowed or is testing strictly going to be limited to at event testing?

To which the BCAC replied as follows:

At this time, we will be limiting to in competition testing only.”

A quick legal breakdown reveals that the BCAC has the ability to conduct out of competition testing if they so desire with Section 46(2)(o) of the Athletic Commissioner Act allowing “drug and alcohol testing of professional athletes on a random basis or otherwise“.  With this framework at hand Regulation 21 was passed which requires that “on request of the commissioner, a contestant must report for and provide samples for testing for the presence of a banned substance.“.   The definition of “contestant” includes licensed contestants for the purpose of Section 21 meaning the Commissioner has jurisdiction to request drug screening as soon as a contestant licence is granted.

Anti doping measures in MMA continue to evolve and, as previously discussed, Athletic Commissions should explore more aggressive testing policies to weed out cheating.  Given the reported doping history against one of the combatants competing at UFC 174 (which are apparently disputed by the competitor in question)the BCAC should follow the NSAC’s lead and be open to expanding their testing  to include pre bout screening.

City of Vernon Logo

While British Columbia has a Province wide Athletic Commission with monopoly powers to oversee and regulate MMA, BC’s legal framework gives individual cities a choice allowing them to outright ban certain combat sports.  Specifically, section 59(f)(1) of BC’s Community Charter allows the passage of City bylaws that “prohibit professional boxing, professional wrestling and other professional athletic contests“.  It appears the City of Vernon is prepared to exercise these powers to ban MMA.

Recently, Vernon accepted the fate that Bill 50 stripped their local commission of powers and adopted Bylaw 4954 which repealed their Athletic Commission. The City is now reportedly going further and looking to outright ban MMA.

Infotel.ca reports that City council is moving forward with the creation of a bylaw that would ban Mixed Martial Arts (MMA) events within municipal limits.”  Apparently the law has yet to be drafted however Infotel reports that “Council directed staff to prepare a draft bylaw for consideration.”.  

If properly drafted the City appears to be within their rights to ban MMA.  Interestingly the language of BC’s Community Charter seems to limit the City’s power to only ban professional combat sports, amateur combat sports appear immune from the City’s powers.

 

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Update June 10, 2014 – The minutes of the City Council meeting have been released addressing this development.  They give little detail but provide as follows:

THAT Council brings forward, as public information, the following
motions declassified from confidential to non-confidential at the May 26,
2014, In Camera meeting:

‘THAT Council direct Administration to draft a bylaw or bylaws for
Council consideration which will prohibit professional and amateur
Mixed Martial Arts events within municipal limits.’

Interestingly, this reveals that the City is looking to ban amateur MMA as well, a move that appears ultra vires (beyond the powers granted to them) under s. 59(f)(1) of the Community Charter.

 

 

Lawyers Weekly Interview Re Combat Sports5

Recently I had the pleasure of being interviewed by The Lawyer’s Weekly to discuss New Brunswick’s Bill 72 which set out a legal framework for the regulation of Combat Sports in the Province.  If you are visiting this site for the first time after reading the article, welcome!

At the time of the interview Bill 72 had just passed first reading, by way of update the Bill has now been passed and received Royal Assent on May 21, 2014.

You can click here for more information on New Brunswick’s Combat Sport Act.

Two more Provinces now have professional MMA and other combat sports officially legalized.

Saskatchewan’s Athletic’s Commission Act and New Brunswick’s Combat Sport Act have now both received Royal Assent with Saskatchewan’s law coming into force on May 1, 2014 and New Brunswick’s law coming into force on May 21, 2014.

You can click here for a summary of the legal framework set out by these laws.

Saskatchewan

New Brunswick

Adding to this site’s archived medical literature addressing safety issues in combat sports, an important study was published this week in the Journal of the American Medical Association addressing objective brain changes in college football players.

The study compared three groups:

1. College football players with no concussion history

2. College football players with a concussion history

3.  A control group of non football players

The study found that the football players with no concussion history had smaller hippocampal volumes than the control group and the players with a concussion history had an even more reduced volume.

Perhaps more importantly the study showed that “there was a statistically significant inverse relationship between left hippocampal volume and number of years of football played“.  In other words, the more years playing football, the greater changes in the brain.

This study adds to the literature strongly suggesting that repeated sub concussive hits (ie – checking in hockey, contact in football and striking in combat sports) do take their toll over time.

As previously discussed, the relevant lesson from studies such as these is that there is a shelf life for combat sports participation and further that hard sparring takes its toll.  The brain can only take a finite number of jostles before negative repercussions take place.  Combat athletes would do well to not only be aware of this but to spar smart and not expose themselves to unneeded damage while training.

Below is the full abstract of the recent study.

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Importance  Concussion and subconcussive impacts have been associated with short-term disrupted cognitive performance in collegiate athletes, but there are limited data on their long-term neuroanatomic and cognitive consequences.

Objective  To assess the relationships of concussion history and years of football experience with hippocampal volume and cognitive performance in collegiate football athletes.

Design, Setting, and Participants  Cross-sectional study conducted between June 2011 and August 2013 at a US psychiatric research institute specializing in neuroimaging among collegiate football players with a history of clinician-diagnosed concussion (n = 25), collegiate football players without a history of concussion (n = 25), and non–football-playing, age-, sex-, and education-matched healthy controls (n = 25).

Exposures  History of clinician-diagnosed concussion and years of football experience.

Main Outcomes and Measures  High-resolution anatomical magnetic resonance imaging was used to quantify brain volumes. Baseline scores on a computerized concussion-related cognitive battery were used for cognitive assessment in athletes.

Results  Players with and without a history of concussion had smaller hippocampal volumes relative to healthy control participants (with concussion: t48 = 7.58; P < .001; mean difference, 1788 μL; 95% CI, 1317-2258 μL; without concussion: t48 = 4.35; P < .001, mean difference, 1027 μL; 95% CI, 556-1498 μL). Players with a history of concussion had smaller hippocampal volumes than players without concussion (t48 = 3.15; P < .001; mean difference, 761 μL; 95% CI, 280-1242 μL). In both athlete groups, there was a statistically significant inverse relationship between left hippocampal volume and number of years of football played (t46 = −3.62; P < .001; coefficient = −43.54; 95% CI, −67.66 to −19.41). Behavioral testing demonstrated no differences between athletes with and without a concussion history on 5 cognitive measures but did show an inverse correlation between years of playing football and reaction time (ρ42 = −0.43; 95% CI, −0.46 to −0.40; P = .005).

Conclusions and Relevance  Among a group of collegiate football athletes, there was a significant inverse relationship of concussion and years of football played with hippocampal volume. Years of football experience also correlated with slower reaction time. Further research is needed to determine the temporal relationships of these findings.

In my ongoing efforts to document caselaw addressing UFC Pay Per View piracy allegations, reasons for judgement were released this week by the United States District Court in San Diego dismissing such a claim against a Brazilian Jiu Jitsu gym.

In this week’s case (Joe Hand Promotions Inc. v. Cusi et al) the Plaintiff, Joe Hand Promotions purchased and retained the exclusive commercial exhibition licensing rights to UFC 145.  They “marketed the sub-licensing rights to its commercial customers, including casinos, racetracks, bars, restaurants, and nightclubs”.  The Defendant, Stronghold Crossfit & Brazilian Jitsu, purchased UFC 145 and played it via internet at their facility.  They did not pay for commercial exhibition licencing rights arguing “that the establishment functioned as a private residence at the time of the viewing.

Despite this they were sued with allegations that they, as a commercial establishment, unlawfully intercepted and broadcast to its patrons satellite/cable programming.  The Court dismissed the lawsuit finding there was no evidence that the internet broadcast used satellite or cable signals.  In reaching this decision the Court provided the following reasons:

Defendants contend summary judgment is appropriate because Sections 605 and 553 do not apply to programs received and displayed over the internet. Defendants contend that they purchased the Event over the internet,[2] so that their actions cannot be governed by statutes designed to combat interceptions of satellite or cable signals.

Plaintiff contends that the type of internet service determines whether liability exists under Sections 503 or 605. Plaintiff states, “[w]hat Defendants fail to address is how they accessed the internet . . . . The signal came from somewhere.” [Pl’s Opp. at 4.] To support this proposition, Plaintiff cites Zuffa, LLC v. Kamranian, 2013 WL 1196632 (D. N.D. March 25, 2013). There, a sports bar streamed an Ultimate Fighting Championship event via the internet without authorization. The defendant produced evidence demonstrating that it had cable internet. Accordingly, the Court dismissed the plaintiff’s Section 605 claim, as Section 605 only covered “radio” (i.e., satellite) signals.[3]

Even assuming that Plaintiff is correct that the type of internet service determines whether liability exists under Sections 503 and 605,[4] Plaintiff has failed to produce any evidence tending to demonstrate the type of internet used by Defendants. Moreover, as the discovery phase of the case is complete, Plaintiff cannot produce admissible evidence to support a necessary fact to support its claims under Sections 553 and 605. Fed. R. Civ. P. 56(c)(1)(B). Accordingly, the Court enters summary judgment in Defendants’ favor on Plaintiff’s federal statutory claims.

It is unfortunate that the Court did not have the opportunity to address the merits of the underlying dispute, that is, whether a BJJ gym that broadcasts a pay per view event without purchasing commercial licencing rights could be exposed to civil liability.  The stark lesson remains, however, that UFC Pay Per View allegedly improperly broadcast at commercial establishments remain the target of aggressive civil litigation.

bc athletic commissioner colour logo

The Office of the BC Athletic Commissioner has released their long awaited anti Doping Policy and Therapeutic Use Exemption policy for Performance Enhancing Drugs.

You can find a full copy of the policies here:

BCAC Anti Doping Policy

BCAC TUE Policy

Section 21 of the BC Minister’s Athletic Commissioner Regulations adopted the WADA Prohibited List of Substances.  Today’s Policy simply confirms the WADA list is in force in BC.

What was less clear was whether BC would grant Therapeutic Use Exemptions for prohibited substances to those in medical need.  From my perspective it was implied that if BC adopted the WADA prohibited list they also adopted the WADA test for granting a TUE.  Today’s Policy confirms this in fact is the case.  Interestingly, BC has adopted a complete ban on TRT, which could be subject to Human Rights scrutiny under BC law, with the policy reading as follows:

3.2 Therapeutic Use
3.2.1
Athletes with a documented medical condition requiring the use of a
Prohibited Substance or a Prohibited Method must first obtain a Therapeutic
Use Exception (TUE). The presence of a Prohibited Substance or its
Metabolites or Markers, Use or Attempted Use of a Prohibited Substance or a
Prohibited Method, Possession of Prohibited Substances or Prohibited
Methods or administration of a Prohibited Substance or Prohibited Method 4

consistent with the provisions of an applicable TUE issued pursuant to the
WADA International Standard for Therapeutic Use Exemptions shall not be
considered an anti-doping policy contravention.
3.2.2
Athletes competing in British Columbia must obtain a TUE from the BCAC
(regardless of whether the Athlete previously has received a TUE elsewhere)
no later than thirty days before the Athlete’s participation in a competition.
3.2.3
Upon the BCAC’s receipt of a TUE request, the BCAC shall either convene a
panel of BCAC ringside physicians to consider and advise on the request (the
“TUE Panel”) or refer the TUE request to a body the BCAC believes
competent to consider and give advice to the BCAC on TUEs. If the BCAC
convenes a panel, the Chair (as appointed by the BCAC) of the TUE Panel
shall appoint three (3) members of the TUE Panel (which may include the
Chair) to consider such request. The TUE Panel members (or other
competent body as decided by the BCAC) so designated shall promptly
evaluate such request in accordance with the International Standard for
Therapeutic Use Exemptions and render advice to the BCAC on such request.
3.2.4
The BCAC will not grant a TUE request for the use of testosterone

Bill 72, New Brunswick’s Combat Sport Act, has passed Third Reading today making New Brunswick the latest Province to provide a legal framework for professional and amateur combat sports following recent amendments to Canada’s Criminal Code.

As previously discussed, below are the highlights of the newly minted New Brunswick law:

  • The Act regulates both amateur and professional combat sports.
  • On the amateur side boxing, judo, karate, tae kwon do and wrestling are ‘prescribed’ combat sports.
  • The list does not include amateur MMA although section 2 allows the government to add MMA  and other sports to the list by regulation.
  • The Act allows the Government to authorize Provincial Sport Organizations to “approve and regulate” amateur combat sports.  Once done these PSO’s will have monopoly powers to oversee their respective sports.  Realistically, if a PSO can be formed for amateur MMA in the Province a case can be made to add the sport to the Province’s prescribed list.
  • The Act carves out one exception to the need for PSO oversight of amateur combat sports, namely the ‘educational institution’ exception.  Amateur combat sports can be held without PSO approval in “a school, university or community college…if the event is being held as a part of the institution’s curriculum or extra-curriculum programming“.
  • On the Professional side, the Act creates a Province wide Combat Sports Commission which will be tasked to approve and regulate events in professional combat sports (with the exception of professional wrestling).  Here the act largely mirrors other jurisdictions with a Province wide commission tasked with overseeing “combat sports” which are defined as “a sport in which fighters use striking, throwing, grappling or submission techniques, or a combination of those techniques”.  This broad definition clearly captures MMA.  The commission enjoys the typical powers such as issuing licenses for events and event participants, and a host of administrative and investigative powers to ensure compliance.
  • Lastly, section 42 of the Act strips municipal commissions of their powers bringing a Province wide model to the oversight of combat sports in New Brunswick.

 

 

Sikaran World Championshps Flyer

The Sikaran World Championships have been scheduled to take place on May 10 at the Winnipeg Convention Center.  The advertised events include ‘sparring’.  The problem?  A Sikaran contact sparring contest will run afoul of the Criminal Code creating a potential showdown with authorities in Winnipeg this weekend.

As previously discussed, Section 83 of the Criminal Code makes some amateur combat sports  legal by default and criminalizes others.

Amateur combat sports that are legal by default are limited to those  “in the programme of the International Olympic Committee”.    These include  Boxing, Wrestling, Judo and Tae Kwon Do.

Section 83 allows Provinces to expand this list.   Where no such designation exists the default position governs.  Currently, Manitoba has not exercised their powers expanding the designated martial arts beyond the default list.

This will pose a real problem for the Sikaran championships.  Either they will need to strip contact events from their program or risk criminal charges under Section 83.

This situation illustrates the real urgency created by Section 83.  Provinces need to enact clear legislation setting out which Traditional Martial arts are legal and how they are to be regulated.  Event promoters would be wise to understand this legal framework before booking events.

 

With the 2014 Ontario Provincial Election triggered, now is the time for Ontario’s political parties to lay out their plans to address the legislative gap making many amateur combat sports illegal in the Province.

To date the Government has been, to put it kindly, vague in identifying their plans to address this situation.  With an election looming I am optimistic more detailed responses will be forthcoming.

I have posed the below question to the Ontario NDP, Liberal Party and Progressive Conservatives.  I will update this article as each party offers their reply.

Currently many Ontario residents who practice non-Olympic amateur martial arts are violating section 83 of the Criminal Code.  Ontario has been slow to address this legislative gap which became prominent when the Federal Government passed Bill S-209 last year.  Is it your Party’s position that these individuals activities should remain criminal?  If not, what plans, if any, does your Party have in addressing this situation?

I encourage as many Ontario residents as possible to pose the same question to each political party courting your vote.