Archive for July, 2014

In my effort to create a database of Combat Sports prosecutions pursuant to Canada’s Criminal Code, I have obtained the full transcript of the sentencing proceedings from Saskatchewan’s Ministry of Justice in the case of HMTQ v. Crowthers and Daku.

By way of backgound, Patrick Crowthers and Derek Daku of Saskatchewan’s Prestige Fight Club have the dubious honour of being the first to be successfully prosecuted for hosting an illegal ‘prizefight’ since section 83 of Canada’s Criminal Code was overhauled by Bill S-209.  In short both parties plead guilty to the offence and joint submissions (ie a plea bargain) were made which the Court accepted.  The court’s sentence was a conditional discharge.

For those interested Judge Kovatch’s reasons can be found here: HMTQ v. Crowthers and Daku

For anyone interested I am happy to provide a copy of the full certified transcript which includes submissions from counsel.

The UFC’s Matt Brown failed to make weight today ahead of UFC on Fox 12.  He weighed in at 172.5 pounds, 1.5 pounds above the welterweight limit.  Under California rules Brown was allowed a further hour to try and shed the weight, however, due to a reported ‘miscommunication’ this did not happen.  The details of this miscommunication are worth scrutinizing and create a teachable moment when it comes to regulation of rapid extreme weight cutting in MMA.

In short, after coming in over weight, Fox Sports reports that the California State Athletic Commission’s doctor advised Brown “that he should not continue to cut weight“.  Sensibly, Brown followed this advice and began to rehydrate.  Shortly after this, Andy Foster, the CSAC’s executive officer, told Brown he was allowed a further hour to try and make weight but Brown elected not to do so as his rehydration took him to the point of no return.

When addressing this turn of events Foster is quoted as saying “There’s a difference between advisement from a doctor and a directive by a doctor…We were just looking after his health and safety, but I was going to let him on [the scale again],”

How can ignoring a Commission’s own doctor’s advice be compatible with looking after fighter health and safety?  Worse yet, Foster seems to suggest that Brown should be forgiven for his part in this miscommunication because he was “foggy” from his rapid extreme weight cutting. While Foster is correct that Brown may not bear any fault for this, the comment misses the larger point that fogginess from dehydration is clearly a sign of health impairment and one where feedback from the Commission’s own physician is warranted.

Given the ongoing harm documented by rapid extreme weight cut practices and a Commissions duty to look after fighter safety, the above illustrates exactly what an Athletic Commission executive officer should not do in these circumstances.  Brown, on the other hand, should be applauded for listening to doctor’s advice, even if it fell short of a ‘directive‘.

In the latest chapter of ongoing anti piracy litigation of UFC Pay Per View products, reasons for judgement were released this week by the US District Court, ED Missouri, Eastern Division, assessing damages in default proceedings following alleged piracy of UFC 128 by a commercial establishment.

In this week’s case (Joe Hand Promotions Inc. v. Game on Bar and Grill) the Plaintiff, who enjoyed commercial distribution rights to UFC 128, obtained default judgement agaisnt the Defendant with allegations that they unlawfully displayed the event without purchasing a commercial licence.  Default judgement was obtained with a violation of 47 U.S.C. § 605 and  47 U.S.C. § 553.

Damages of $4,000 for each count were assessed in addition to $2,500 in attorney’s fees and $460 in costs.

It is noteworthy that the plaintiff was seeking damages of $170,000.  In finding the above more modest figure being appropriate the Court provided the following reasons:

Plaintiff has requested the maximum statutory damages available under each statute and argues that an award of enhanced damages is appropriate here because Defendants acted willfully and for purposes of commercial advantage. Plaintiff further argues that awarding the statutory maximum will serve as a deterrent to similar action by other commercial establishments. Plaintiff does not allege, however, the other ground commonly cited in support of maximal damage award: that Defendant has repeatedly violated these statutes. See 47 U.S.C. §§ 553(c)(3)(B) & 605(e)(3)(C)(ii).

Although courts in this district have in some instances granted the maximum amount of enhanced statutory damages to aggrieved parties under §§ 605 and 553, more modest awards are generally found. Compare Joe Hand Promotions, Inc. v. TL Prods., LLC, Nos. 4:09CV503MLM, 4:09CV1633CAS, 2010 WL 2428031, at *2 (E.D. Mo. June 10, 2010) (finding “knowing violation” and awarding enhanced statutory damages under 47 U.S.C. § 605 of $100,000 and $50,000 under 47 U.S.C. § 553)with Joe Hand Promotions, Inc. v. Thompson, No. 4:11CV1740CAS, 2013 WL 466278, at *3 (E.D. Mo. Feb. 7, 2013) (awarding $13,000 in statutory damages for a willful violation of 47 U.S.C. § 605); J & J Sports Prods., Inc. v. Sirkco, LLC, No. 4:12CV763CDP, 2013 WL 363355, at *2 (E.D. Mo. Jan. 30, 2013) (awarding $3,000 in statutory damages for a willful violation of 47 U.S.C. § 605); J & J Sports Prods., Inc. v. Diamond Kings, LLC, No. 4:12CV00764AGF, 2012 WL 5330983, at *2 (E.D. Mo. Oct. 29, 2012) (awarding $3,000 in statutory damages for a willful violation of 47 U.S.C. § 605); Home Box Office v. Carlim, Inc., 838 F. Supp. 432, 436 (E.D. Mo. 1993) (awarding a total of $3,000 in statutory damages, consisting of $2,000 pursuant to 47 U.S.C. § 553(c)(3)(A) & (c)(3)(B), and $1,000 pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II)).

Having considered the authorities Plaintiff presents and other applicable cases from this jurisdiction, and the fact that Plaintiff was required to hire auditors and investigators, the Court finds that Defendant acted willfully and that an award of $4,000 per violation under each of the statutes is an appropriate penalty and deterrent here. See, e.g., Sirkco, LLC, 2013 WL 363355, at *2 (awarding $3,000 in statutory damages).

Plaintiff also seeks attorney’s fees of $2,500, $460 in costs, and post-judgment interest. Both statutes authorize the recovery of attorney’s fees and costs and the Court finds the documentation Plaintiff submitted to support its requests for attorney’s fees and costs sufficient and the amount of requested fees and costs reasonable. See 47 U.S.C. §§ 605(e)(3)(B)(iii) and 553(c)(2)(C). In addition, Plaintiff is entitled to post-judgment interest at the rate set by federal law.

Adding to this site’s archived caselaw of Pay Per View piracy decisions, reasons for judgement were released this week by the US District Court, N.D. California, assessing damages for such a claim.

In this week’s case (Joe Hand Promotions, INC v. Tamayo) the Defendant operated a Crossfit gym.  He showed UFC 159 at his facility without paying for the commercial exhibition licencing rights for the event.  The Plaintiff sued seeking significant statutory damages.  The Defendant failed to respond and default judgement was awarded.  Despite this, the Court found that only minimal statutory damages were appropriate as the event was little more than a gathering of friends with little commercial advantage to the Defendant.  In reaching this decision the Court provided the following reasons:

Plaintiff has produced sufficient evidence to prove that Defendant violated section 553, absent any response from Defendant. See Compl. at 4; Affiant Decl. at 1. However, the statutory maximum in damages as sought by Plaintiff, Compl. at 9, is inappropriate. This Court employed the following legal standard in Coyne:

Under section 553(c)(3)(A)(ii), the “party aggrieved may recover an award or statutory damages for all violations involved in the action, in a sum of not less than $250 or more than $10,000 as the court considers just.” The court of appeals has not set forth specific factors to use in determining the appropriate amount of such enhancements. See J & J Sports Prods., Inc. v. Concepcion, No. 10-5092, 2011 WL 2220101, at *4 (N.D. Cal. June 7, 2011). “District courts have thus considered different factors to determine culpability and to achieve proper compensation and deterrence. These include: use of cover charge, increase in food price during programming, presence of advertisement, number of patrons, number of televisions used, and impact of offender’s conduct on the claimant. Repeated violations may also justify enhanced damages.” Id.

857 F. Supp.2d at 917. Here, Plaintiff’s Investigator states that at most thirty-one people (including three children under age ten) were present during exhibition of the Program, there was no advertisement (there wasn’t even a business name on the front of the establishment), there was one “makeshift screen with a projector,” no cover charge, nothing for sale, “everyone seemed to bring their own food and drinks,” and “[i]t was very much like a gathering of friends.” Affiant Decl. This was not the unlawful commercial gain that the statute seeks to prevent. As to the impact of offender’s conduct on the claimant, Plaintiff is a national corporation that apparently has the resources to be highly litigious (Joe Hand Promotions, Inc. has appeared as plaintiff in this district over 40 times). It is unlikely that Defendant’s conduct meaningfully impacted Plaintiff. The Court awards the minimum statutory damages, as it did in Coyne. See Coyne, 857 F. Supp.2d at 918. Thus, the Court awards Plaintiff $250 in damages for the violation of section 553. See 47 U.S.C. § 553(c)(3)(A)(ii).

In addition to the above the Court awarded $750 in damages for conversion for a total award of $1,000.

Update August 13, 2014 – Voting on this bylaw is now scheduled for September 8 at 1:30 pm

vernon MMA ban update

Update July 23, 2014 – Today the City of Vernon confirmed to me, via Twitter, that they have dropped the intended ban on amateur MMA with the proposed legislation only targeting professional Mixed Martial Arts Vernon City Tweets Re MMA Ban Bill                         ________________________________________________________________________________________________

Recently I canvassed the City of Vernon, BC’s, plans to ban MMA competitions from the City’s borders.  The first draft of the proposed law sought to ban both professional and amateur MMA events.  The proposed ban on amateur MMA is legally problematic and arguably outside of the scope of the City’s powers. Vernon now appears alive to this concern and they are considering a new version of the proposed ban which will only prohibit professional contests.  Below is  the City’s reasons addressing the reasons why the first version is problematic; Vernon Rational on no ammy ban page 1   Vernon Rational on no ammy ban page 2                                   ——————————————————————————————









And here is the wording of the alternative version of the proposed MMA Ban:  

WHEREAS section 59(1 )(f) of the Community Charter authorizes Council to prohibit professional boxing, professional wrestling and other professional athletic contests; AND WHEREAS section 8(3)(i) of the Community Charter authorizes Council to prohibit activities in relation to public health; AND WHEREAS under section 2(1 )(a) of the Private Health Bylaws Regulation (B.C. Reg. 42/2004) a bylaw in relation to the protection, promotion or preservation of the health of individuals must be deposited with the Minister of Health; AND WHEREAS section 8(6) of the Community Charter authorizes Council to control, inspect, limit and restrict business, including by establishing rules respecting what must be done in relation to the business and business activities; AND WHEREAS section 59(2) of the Community Charter provides that before adopting a bylaw under section 8(6) or 59(1 ), Council must give notice of its intention as Council considers reasonable, and provide an opportunity for persons who consider they are affected by the bylaw to make representations to Council;

NOW THEREFORE the Council of the Corporation of the City of Vernon in open meeting enacts as follows: Citation 1. This bylaw shall be cited for all purposes as “City of Vernon Mixed Martial Arts Bylaw Number 5505, 2014″.

Definitions 2. In this bylaw, (a) “business” means carrying on a commercial activity or undertaking of any kind or providing a service for the purpose of profit or gain; (b) “contest” includes an exhibition; (c) “matchmaker” means a person who arranges contests between particular athletes for a mixed martial arts contest; (d) “mixed martial arts” means unarmed combat between two or more persons involving the use of a combination of techniques from other martial arts, including, without limitation, grappling, kicking, striking and holding; (e) “promoter” means a person who carries on a business in relation to mixed martial arts; (f) “second” means a person who assists an athlete between rounds in the course of a mixed martial arts contest or exhibition.

Mixed Martial Arts 3. No person may engage as a contestant in a professional mixed martial arts contest.

4. Without limiting section 3 or other forms of athletic contest, no person may engage as a contestant in a professional mixed martial arts contest if the contest is or relates to a business or business activity.

5. Without limiting sections 3 or 4, or other forms of athletic contest, no person may act as a promoter, matchmaker or second in a mixed martial arts contest if-the contest is or relates to a business or business activity.

6. Nothing in sections 3 through 5 regulates an amateur mixed martial arts contest or exhibition held by or in relation to the business of a mixed martial arts training studio or trainer holding a valid and subsisting business license.

Offences and Fines 7. (a) Every person who contravenes, suffers or permits any act or thing to be done in contravention of, or neglects to do or refrains from doing anything required to be done pursuant to any provision of this bylaw or any notice issued pursuant to this bylaw, commits an offence punishable on summary conviction, and shall be liable to a fine not exceeding the sum of $10,000.00. (b) Where an offence is a continuing offence, each day that the offence IS continued shall constitute a separate and distinct offence.

Severability 8. The invalidity or unenforceability of any provisions of this bylaw shall not affect the validity or enforceability of any other provision of this bylaw, which shall remain in full force and effect.

It is, at this stage, unclear which version of the law will be voted on although it appears they are leaning towards the legally problematic first draft.  I will continue to report on this matter as further details unfold.

Although Performance Enhancing Drug testing has much room for improvement in the world of Combat Sports one thing is clear, the current landscape with more frequent testing including occasional out of competition testing is far improved from from the sport’s earlier years.

Yesterday, Mixed Martial Arts legend Enson Inoue provided a glimpse into the history of MMA Drug Testing by sharing the following clause from one of his PRIDE fight contracts:

Pride Steroid Exclusion Clause




After this was posted on and the authenticity of this clause was questioned Enson confirmed it is, indeed, authentic providing the following comments and linking to video where he takes viewers through his PRIDE contract.

Well there would be no reason for me to make this up… Just, it is what it is.  I was cleaning out my house and the contracts came up.  I am in no way saying that all the fighters were juicing up, I’m jut saying exactly what it is.  There was a clause that said that.  Take it or leave it.



As previously discussed, rapid extreme weight cut practices are a largely unregulated part of combat sports.  These practices come with inherent dangers.  To date, State and Provincial Athletic Commissions  have been largely content to turn a blind eye to this problem with few regulated thresholds addressing these practices.

Recently TopMMANews documented two further examples of the harm caused by these practices.  On June 16 it was reported that

Hopefully Jordan Murray is feeling much better. Jordan had to have emergency surgery on his gallbladder. Here’s what he had to say… “All my weight cutting has finally caught up to me I guess, looks like I have to remove my gallbladder after spending all day in emergency and losing alot of blood the Doctor says its 100% from cutting weight, crazy!”

This week TopMMANews reports another near tragedy noting as follows:

Scary incident for Jer Kornelsen cutting weight for his BFL fight. Here’s what he had to say… “So I passed out and stopped breathing in the sauna trying to make weight. I guess they did CPR on me for a while and I came too in the hospital.. Seriously pissed off and feel horrible. Sorry to my team, Battlefield and mostly my opponent!

If these practices continue there is a tragedy waiting to happen in MMA and when it does the aftermath will land squarely at the feet of the Athletic Commission overseeing the event at question.  Athletic Commissions exist first and foremost for athlete safety.  When a practice develops that is clearly endangering the sports participants Athletic Commissions enter the realm of negligence if they fail to address the situation.  Hopefully commissions are prepared to take note and remember that weight classes exist to protect fighters, not to encourage practices which endanger their health and well being.


The BC Athletic Commissioner has released their post bout drug test results following UFC 174.

The Commission advises as follows:

VICTORIA – British Columbia athletic commissioner Dave Maedel has issued the following
statement about drug testing results received following the UFC 174 match on June 14, 2014,
at Rogers Arena in Vancouver:
“The focus of the BC Athletic Commission is to ensure fighter safety and maintain the integrity
of the sport so athletes are competing on a level playing field.
“There were eight UFC 174 competitors tested on June 14, 2014, for the presence of banned
substances, including the two flyweight title fighters and six random competitors. All
competitors’ test results complied with World Anti-Doping Agency Standards subscribed to by
the BC athletic commissioner, as well as our anti-doping policies.
“In addition to the June 14 tests, Mr. Ali Bagautinov – one of the two flyweight title fighters –
was tested out of competition on June 2, 2014.
“Results received by this office from the June 2 tests on Mr. Bagautinov were positive for
erythropoietin, or EPO – a substance banned by the World Anti-Doping Agency. These results
were not available prior to the UFC 174 event due to lab processing times.
“Mr. Bagautinov lost his bid for the flyweight title to Demetrious Johnson.
“I have suspended Mr. Bagautinov’s licence to compete in British Columbia for a period of one
The Province established the Office of the BC Athletic Commissioner in May 2013. The
commissioner oversees the conduct of professional boxing and mixed martial arts as well as
amateur mixed martial arts, kickboxing, muay thai and pankration events throughout the
province of B.C.
The athletic commissioner is committed to the safety and integrity of combat sports in the
province. Legislation guiding the athletic commissioner is the Athletic Commissioner Act. 



Update October 15, 2014 – Sonnen confirmed the lengths he went to cover up his PED taking during the first episode of his podcast “You’re welcome with Chael Sonnen“.  Sonnen admitted to knowingly, intentionally taking banned PEDs and trying to outwit commission testing confessing as follows:

I thought it was out of my system. I had done my own tests and they came back hot. So I never asked for a license and I kept testing myself. I waited until they were clean, I then asked for a license. They gave me a license, and then they tested me. They sent it to a lab that was far superior than the ones I had access to, and they found the stuff in my system. That’s it. I’m beat. I took it and I did it.

This admission puts Sonnen’s actions squarely within the fact pattern that delayed the limitation period against Lance Armstrong as outlined below.


Chael Sonnen, who climbed to become one of MMA’s most marketable figures, is experiencing a sudden downfall after failing a drug test for the third time in his career.  The fall out not only led to his retirement from the sport but also to the termination of his broadcasting services agreements with the UFC and Fox Sports.

The simple lesson is that fraud, (yes seeking  advantage through the use of prohibited PED’s without a TUE is fraud) can come with steep consequences.

The above consequences, however, may not be the end.  Fraud, once uncovered, can trigger consequences years after the fact.   After Lance Armstrong’s sudden demise from the elite lofts of cycling, Sonnen leveled the following criticism:

When you screw up, you have to own it. That stuff really gets under my skin. Take Lance Armstrong. Lance Armstrong…He cheated, he did drugs, and he gave himself cancer. Well, instead of saying, ‘Hey listen, I cheated and gave myself cancer, don’t be like me.’ He actually made himself the victim and then went out and profited something like $15 million dollars from this ‘Hey, poor me, let’s find a cure for cancer’ campaign instead of just coming clean and saying, ‘Look, here’s what I did, I screwed myself up, and I hope people learn from my mistakes.’ You just watch these guys and can’t help but think, God, what a fraud.

Sonnen, and the MMA community can learn from Armstrong.  His fraud caught up with him and he paid the price.  As previously discussed, fraud also can stall the clock on limitation periods which can leave the door open to far reaching litigation.  Again the unwitting teacher is Armstrong where the Reasoned Decision of the USADA on Disqualificaiton and Ineligibility held as follows with respect to fraud and limitation periods:

A recent American Arbitration Association decision in a 
doping case addressed both the general principle that an athlete who fraudulently conceals 
doping cannot profit from that fraud by claiming that the statute of limitations has run, and the 
specific situation where the panel suspended the statute of limitation because the athlete denied 
under oath that he had doped. (USADA v Hellebuyck, AAA Case No. 77 190 168 11, Jan 30, 
2012) Similarly, under U.S. law, Armstrong should not be allowed to claim the benefit of a 
statute of limitation where his doping has been concealed, and the judicial process subverted, by 
his lying under oath and other affirmative actions which precluded the earlier discovery of his 
doping by USADA.

If Sonnen built his empire on fraud as Armstrong did, anyone who was financially harmed by his actions can seek to remedy this through civil action.  The clock does not start running until the fraud is uncovered.  If the MMA community ever digs into historic PED test results with the same vigour as the USADA did all ill gotten gains can be undone.