Archive for June, 2015

Update – July 21, 2016 – according to Ken Pavia Alexander Shlemenko won his appeal and is free to fight

Ken Pavia Tweets

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This week the California State Athletic Commission handed out a three year suspension to Alexander Shlemenko who tested positive for prohibited PED’s following his last Bellator bout.

This is no doubt evidence of a changing of the guard in terms of how regulators are going to deal with drug cheats. Penalties will become increasingly heavy handed and that is a good thing.  There are lessons to be learned, however, from this affair and these are not limited to athletes.  Regulators need to understand that, given the serious consequences suspensions have on a fighter’s livelihood, integrity in the testing process must be in place and due process during regulatory hearings is imperative.  Here the California State Athletic Commission fell short on both counts.

The Shlemenko hearing, which begins at just past the one hour twenty minute mark of the below video is worth reviewing.  The commission all but mocks Shlemenko for choosing to be represented by a lawyer and even make comments that demonstrate fettered discretion with minds appearing to be made up prior to full submissions being digested.  The proposed penalties against Shlemenko were apparently far more lenient initially only turning more punitive in the days prior to the requested hearing.  The testing process leaves much to be desired as well with the evidence establishing that the CSAC did not collect a B sample despite their contract with the testing facility requiring this to be conducted.  Whether or not collection of a B sample is required under the California regulatory scheme, a question a Court will likely ultimately answer as Shlemenko has indicated he is seeking to judicially review the ban, it is clear that the CSAC has no set objective standards in place outlining the required steps needed for drug sample collection and testing.

Regulators should have a clear legislative framework for the PED tests they are allowed to conduct, a clear set of penalties for those who fail them, firm standards in place for the integrity of the collection and testing process and lastly respect for due process rights of athletes who hold the State to their statutory burden of proof.

The California State Athletic Commission has been one of the more vocal regulators about the dangers of Rapid Extreme Weight Cuts in combative sports.  They continue to take action with the AC’s Executive Officer, Andy Foster, recently being grated permission to purchase a Body Composition Analyzer to use at weigh ins.

In a meeting held earlier this year, Foster voiced concern to the commission about the link between dehydration and traumatic brain injury noting that “dehydration is a problem right in front of us and we see it all the time“.  In addition to warning athletes of these risks, Foster sought, and was granted permission, to purchase a Body Composition Analyzer and also a portable brain scanner which could help detect hematomas.  A budget of $20,000 was approved to purchase these items.   Here are the minutes of the discussion –

CSAC Minutes re Rapid Extreme Weight Cuts 1

CSAC Minutes re Rapid Extreme Weight Cuts 2

With the recent creation of the Saskatchewan Athletics Commission and with the Province set to host their first UFC event in August, 2015 the SAC has now finalized their professional MMA Rules.

I have obtained a copy and you can access these here –Saskathewan Pro MMA Rules

The rules largely mirror the so-called unified rules of MMA with few changes.  Some of the highlights are as follows –

  • The conventional weight classes are used from Flyweight to Super Heavyweight
  • Weigh ins must take place 24-30 hours pre event
  • The one pound weight allowance for non title matches is in force
  • Flyweight and Bantamweight fighters cannot have a difference of more than three pounds between contestants
  • Featherweight, Lightweight and Welterweight fighters  cannot have a difference of more than five pounds between contestants
  • Remaining weight classes cannot have a difference of more than 7 pounds between contestants (but the commission has the discretion to deviate from this restriction)
  • a one hour grace period is in place for fighters who fail to make weight on their first attempts
  • The commission does have the discretion to allow catch weight events
  • One day elimination tournaments are prohibited
  • A minimum 14 day suspension is in place for all contestants and for those who fight a 4th or 5th round this is increased to 21 days
  • Events can take place in a ring or cage
  • Rounds must be between 3-5 minutes in length
  • The 10 point must system is adopted
  • The WADA Prohibited list is adopted with the AC having drug testing abilities and the language appears broad enough to allow both in and out of competition testing

The one night elimination tournament is at the foundation of the history of modern mixed martial arts but the format has all but disappeared since the early days of the sport.

Today, Bellator MMA announced plans to host a one night 4 man elimination tournament in California.  Is that even legal in the State?  The short answer is yes.

While many states do not have a framework in place to allow one night tournaments given mandatory medical suspensions imposed by statute (you can click here to read about the questionable framework in place in Oklahoma who approved such a tournament last year), and with the ABC Medical Committee taking an express stance against such competitions, one night tournaments are indeed a rare occurrence.  California, however, has a specific statutory framework in place which allows such tournaments.

Here is the breakdown –

The California State Athletic Commission enjoys jurisdiction over “all professional and amateur…forms  and combinations of forms of full contact marital arts contests, including mixed martial arts“.

California’s Regulations specifically allow elimination tournaments in MMA with s. 503 of the Regulations reading as follows:

§ 503. Tournament or Elimination Format Contests – Selection of Opponents.

In any tournament or elimination format contest, the commission shall determine the initial opponents in the first round of the tournament by drawing names at the weigh-in.

Lastly, while California, like most other States, calls for mandatory suspensions after competition, they carved out an exception to this rule for tournaments with Section 515 of the Regulations stating as follows:

§ 515. Time Between Bouts.

Unless written approval is obtained from the commission, a fighter who has competed in a bout or tournament format event anywhere in the world shall not be allowed to compete in this state until seven days have elapsed from the date of that bout or event. This limitation shall not be construed to prohibit a fighter from competing in a tournament format event that requires the fighter to rest a minimum of 30 minutes between bouts. In a tournament format event, a fighter shall be examined by a physician before each bout.

With the passage of enough time everything old is new again!

Today the USADA has released the nuts and bolts of the UFC Anti-Doping Policy publishing the following documents –

UFC-anti-doping-policy

UFC-arbitration-rules

UFC-tue-policy

UFC-whereabouts-policy

While this policy can and should be applauded as the most comprehensive private solution in the professional combat sports industry in relation to doping, there are a few significant loopholes that appear to exist.

1. The Retirement Loophole

The Anti-Doping Policy allows the USADA to test UFC Fighters, any place, any time anywhere.  That is unless they declare that they are retired.  Specifically the policy says that thr USADA can test athletes until “such time as they give notice to UFC in writing of their retirement from competition“.

Those who follow the sport know retirement is a flexible state.  UFC contracts survive retirement and simply cease in operation until a fighter ‘un-retires’ at which stage contractual obligations pick up where they left off.  This appears to be a fairly glaring shortfall.

Section 5.7.1 of the policy goes on to state that “An Athlete who gives notice of retirement to UFC, or has otherwise ceased to have a contractual relationship with UFC, may not resume competing in UFC bouts until he/she has given UFC written notice of his.her intent to resume competing and has made him/herself available for Testing for a period of four months before returning to competition.  UFC may grant an exemption to the four-month written notice rule in exceptional circumstances or where the strict application of that rule would be manifestly unfair to an Athlete“.

2.  The Whereabouts Loophole 

If a fighter is doping and does not want to be caught the policy appears to let them dodge two tests a year before repercussions.  If USADA can prove intentional evasion occurred then that is violation of a policy in and of itself.  However, the policy allows for two ‘whereabouts failures’ before the policy is violated.

Specifically s. 2.4 provides that it is an anti-doping violation where “any combination of three Whereabouts Failures within a twelve-month period as defined in the Whereabouts Policy developed by the UFC“.

Whereabouts Failures are defined as follows “The failure by any Athlete to comply with the UFC Whereabouts Policy by failing to timely, accurately and completely provide required whereabouts information and/or for being unavailable for Testing due to inaccurate information provided on the Whereabouts Filing“.

3.  The “Tainted Supplements” Loophole

The Policy comes with steep consequences for those who violate its terms.  However, these are not set in stone.  The Policy allows fighters to try the “tainted supplements” excuse that comes so often after a positive doping test.  Specifically section 10.5.1.1 of the policy states that “In cases where the Athlete or other Person can establish that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility…

The fighters need not prove tainted supplements resulted in the positive test beyond a reasonable doubt, rather they are only subject to a ‘balance of probabilities’ test with s. 3.1 stating that “Where this Anti Doping Policy places the burden of proof upon the Athlete or other Person alleged to have committed an Anti-Doping Policy Violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability”.

Consideration should be given to tighten up these exceptions, that said, this policy continues to be a big step in the right direction in tackling issues with doping in combative sports.

Joe Ferraro Podcast Photo

He’s back!  After a brief hiatus “Showdown” Joe Ferraro has relaunched his podcast.  Today I had the pleasure of appearing on Joe’s revamped show along with UFC commentator Jon Anik discussing some of the latest legal topics in combat sports.   You can listen to the full episode here.

I’d like to thank Joe for having me as a guest once again.  If you are visiting here for the first time after listening welcome!  If you are looking for more information on the topics we covered here are some quick links to articles addressing these in more detail:

Update June 14, 2015Jason Cruz reports the cases have now been consolidated in Nevada with Judge Richard Boulware taking conduct.  You can click here for background information on Judge Boulware.

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With the various anti-trust lawsuits against Zuffa being transferred from California to Nevada earlier this month comes some expected administrative disarray.  In California the cases were consolidated and all before one Judge, in Nevada the cases were transferred to three separate judges. There are further motions to consolidate the cases before the Court.  Earlier this week Magistrate Judge Nancy Coppe, who was given conduct of the Kyle Kingsbury lawsuit, dismissed Zuffa’s motion to put off their discovery obligations.

Judge Coppe provided the following reasons:

On June 4, 2015, this case was transferred from the Northern District of California. Docket No. 35. Before the transfer, Defendant filed a motion to stay discovery pending resolution of its motion to dismiss. Docket No. 29. That motion to stay is hereby DENIED...”

Not much should be read into this development as the motion was denied without prejudice with the Court allowing Zuffa to refile their motion by June 12 if they wish to renew it with directions that any such motion must “address the case law from this District regarding requests to stay discovery pending resolution of a dispositive motion.”.

If Zuffa does not proceed with a new motion Judge Coppe ordered that the parties submit a proposed discovery plan no later than June 19, 2015.

Update June 10, 2015 – Jim Genia has tweeted the following update announcing that the Senate has accepted the revamped Bill leaving it in the hands of the NY State Assembly –

Jim Genia Tweet

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As the New York State Assembly struggles to gather the needed votes to pass proposed legislation to legalize professional MMA, the Bill has been overhauled with a view to obtain the needed support.  The current text of Bill A02604 can be found here. MMA journalist Jim Genia, who has provided coverage of these legislative developments that are second to none, has provided the following summary of the revamped Bill –

  • Amateur MMA is permitted, and will be sanctioned by the Athletic Commission or by third-party organizations approved by the Commission. There will be no more unsanctioned events allowed;
  • The Commission will have jurisdiction over all combative sports, including professional wrestling, martial arts and kickboxing. The list of organizations approved for sanctioning of martial arts events is gone, and the Commission will lay out criteria for third-party organizations to get approval to operate within the state;
  • These third-party organizations may have the power to sanction pro combative sports, including MMA events;
  • The Commission will have jurisdiction (and licensing ability) over gyms that provide sparring in preparation for pro boxing or pro MMA bouts;
  • Accident insurance for a minimum of $50,000 is required by all pro combative sports promoters, with a million dollar insurance minimum for competition injuries resulting in major brain injuries; and,
  • All combative sporting events, pro or amateur, will pay an 8.5% tax on gate and a 3% tax on broadcasting rights sold (this includes Internet broadcasts)

I’ve had an opportunity to review the legislation in full and, in addition to the above highlights, there are two other noteworthy points –

  • Not only are gyms regulated, but the legislation sets our a host of requirements for these.  All training facilities ‘providing contact sparring maintained either exclusively or in part for the use of professional combative sports participants‘ will need to meet the following criteria –
 
     AT A MINIMUM, ANY SUCH REGULATION SHALL REQUIRE:
       (I) FIRST AID MATERIALS TO BE STORED IN AN ACCESSIBLE LOCATION ON  THE
     PREMISES  AND  FOR  THE PRESENCE ON THE PREMISES OF A PERSON TRAINED AND
     CERTIFIED IN THE USE OF SUCH MATERIALS AND PROCEDURES FOR  CARDIO-PULMO-
     NARY  RESUSCITATION  AT  ALL TIMES DURING WHICH THE FACILITY IS OPEN FOR
     TRAINING PURPOSES;
       (II) CLEAN AND SANITARY BATHROOMS, SHOWER ROOMS, AND LOCKER ROOMS;
       (III) ADEQUATE VENTILATION AND LIGHTING OF  ACCESSIBLE  AREAS  OF  THE
     TRAINING FACILITY;
       (IV)  ESTABLISHMENT  OF A POLICY CONCERNING THE RESTRICTION OF SMOKING
     IN TRAINING AREAS, INCLUDING  PROVISIONS  FOR  ITS  ENFORCEMENT  BY  THE
     FACILITY OPERATOR;
       (V) COMPLIANCE WITH STATE AND LOCAL FIRE ORDINANCES;
       (VI)  INSPECTION AND APPROVAL OF SURFACES ON WHICH TRAINING FOR COMBA-
     TIVE SPORTS WILL BE HELD; AND
       (VII) ESTABLISHMENT OF A POLICY FOR  POSTING  ALL  COMMISSION  LICENSE
     SUSPENSIONS AND LICENSE REVOCATIONS RECEIVED FROM THE COMMISSION INCLUD-
     ING  PROVISIONS  FOR  ENFORCEMENT OF SUCH SUSPENSIONS AND REVOCATIONS BY
     THE FACILITY OPERATOR.
       (B) A PROSPECTIVE ENTITY LICENSEE SHALL SUBMIT TO THE COMMISSION PROOF
     THAT IT CAN FURNISH SUITABLE FACILITIES IN WHICH THE TRAINING IS  TO  BE
     CONDUCTED,  INCLUDING  THE  MAKING OF SUCH TRAINING FACILITIES AVAILABLE
     FOR INSPECTION BY THE COMMISSION AT ANY TIME DURING WHICH TRAINING IS IN
   45  PROGRESS.
  • The legislation also mandates that the State conduct a study aimed and arriving at options for providing ‘medical and rehabilitative care’  for combative sport participants that sustain ‘repetitive head injuries’ in their career with the relevant section of the Bill reading as follows:
The department of state, with the assistance of the state athlet-
      ic  commission, medical advisory board, departments of health and finan-
      cial services, state insurance fund, division of budget and  such  other
      state  entities as appropriate, shall carefully consider potential mech-
      anisms to provide  financial  resources  for  the  payment  of  expenses
     related  to  medical  and rehabilitative care for professionals licensed
     under article forty-one of  the  general  business  law  who  experience
     debilitating  brain  injuries  associated  with repetitive head injuries
     sustained through their participation in combative sports.  The  depart-
     ment  of  state may consult and contract with third parties for services
     in the course of this review. The department of state shall  report  its
     findings and recommendations to the governor, temporary president of the
     senate  and speaker of the assembly within eighteen months of the effec-
     tive date of this section.

1. Despite what your contract says you may be employees

2.  If so, you are entitled to certain minimum protections under law, including the right to unionize

As the UFC continues to solidify its market position as the pinnacle promotion for elite professional MMA more discussions are taking place about the need for a fighters association or union to possibly balance the power among fighters and the promotion.  If fighters are employees then they have the right  to form a union and further have all the minimum protections offered under employment law.  If not they still enjoy the right to form a fighters association and influence the landscape through that vehicle.  So which are they?

This is where strippers and cheerleaders come into play.

UFC contracts say that fighters are independent contractors.  What the contract says, however, does not necessarily govern.  Courts ultimately have the right to determine if an individual is a contractor or an employee and they do so by looking at the totality of the relationship.  Late last year the Nevada Supreme Court ruled that strippers working at the Sapphire Gentlemen’s Club where actually employees, not independent contractors as was written in the contract.  It was an important ruling as it cleared the way for the entertainers to sue for damages for back wages, overtime and other protections offered to employees under state law.   In reaching this conclusion the Supreme Court of Nevada highlighted the following influential factors:

While it is not necessary to list exhaustively every factor that could be relevant in the totality of circumstances that make up a working relationship’s economic reality, there are some factors which courts nearly universally consider:

1) the degree of the alleged employer’s right to control the manner in which the work is to be performed;

2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill;

3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers;

4) whether the service rendered requires a special skill;

5) the degree of permanence of the working relationship; and

6) whether the service rendered is an integral part of the alleged employer’s business.

UFC fighters can also learn from “Lacy” of the Oakland Raiderettes who successfully filed a class action resulting in $1.25 million settlement for failing to pay appropriate wages under State law.  In short the cheerleaders were contracted to receive $125 per game however, when adding up all the training, appearances and other obligations required to fulfill their duties the amount paid over a season fell well shy of the State’s minimum wage laws.  While the case did not delve into the debate of employee vs contractor status (it was clear the cheerleaders were employees) the case illustrates that if UFC fighters are employees then minimum wage laws may apply to all training and other efforts that go into preparing for their bouts.

With the UFC’s applauded anti-doping program requiring athletes to check in 24/7/365 with the USADA, with the Reebok Uniform deal dictating what fighter’s will wear when fighting and a unilaterally imposed compensation structure and lastly with the recently announced UFC “Lab” seeking to influence fighter training and rehabilitation, coupled with the general heavy restrictions contained in UFC contracts, a case for an employee/employer relationship is growing ever stronger.

Whether fighters wish to form an association or perhaps even a union is ultimately up to them.  Fighters should keep in mind that the stronger the UFC’s position grows and the more influence they exert on their roster’s year round conduct so too grows the strength of an assertion that fighters are dealing with an employer/employee situation.

Today the UFC announced a vigorous in house program designed to weed out and punish athletes using performance enhancing drugs.  The move is one that should be applauded.  If ever there was a genre of sports that cannot tolerate cheating with PED’s it’s combative sports.  Given the varying, sometimes impotent and sometimes non-existent patchwork of drug testing powers by State and Provincial athletic commissions and lack of Federal regulation this is an important step in the right direction.

As summarized by MMAJunkie, the highlights of the program are as follows:

Punishments for specified substances include:

  • First offense: Two years with the possibility of two additional years for “aggravating circumstances,” which include previous drug failures, egregious intent, conspiracy with others, multiple substances, and other factors
  • Second offense: double the sanction of first offense
  • Third offense: double sanction of second offense

Punishments for non-specified substances include:

  • First offense: One year with the possibility of two additional years for “aggravating circumstances,” which include previous drug failures, egregious intent, conspiracy with others, multiple substances, and other factors
  • Second offense: double the sanction of first offense
  • Third offense: double sanction of second offense

In addition to the above suspensions, doping fighters are subject to forfeiture of their UFC ranking, belt, and purse or other compensation, results for fighters will also be overturned to DQ losses.

The UFC handed the reigns in implementing the program to the USADA.  The program will be funded by the UFC but the USADA will have full control over who is tested and when.  They will conduct a minimum of 2,750 tests annually which will include blood and urine screening.  This equals an average of over 5 tests per year per athlete under contract with the UFC.

There remain issues to be untangled.  It is unclear if the USADA or Zuffa themselves are responsible for issuing penalties under the program.  It is further unclear if this program and its range of penalties are contemplated and contractually agreed to by all current contracts between fighters and Zuffa appreciating some of these date back a few years.  If contracts are overhauled to allow this it also begs the question whether this overarching policy would be enough to allow a successful challenge to fighters ‘independent contractor’ status.  Lastly it is not clear exactly how various State and Provincial athletic commissions will interact with and overlap with this program

Despite these legal issues which will need to be sorted out, this program is a big step in the right direction for the integrity of professional Mixed Martial Arts.