Let’s Talk About What MMA’s Doping and CTE Lawsuit May Look Like

Update October 3, 2015 – today at the UFC 192 post fight presser UFC Vice President of Public Relations issued the following comments on this issue – “I think one of the things to keep in mind with this particular topic is any suggestion or inference that there was a cover up regarding to that is just categorically false.  That period of time with TRT was one that was very tricky for everyone. For the UFC, for Athletic Commissions and for athletes alike.  I think when everybody came to a conclusion that it didn’t have a place in the sport, and it was outlawed in 2014, we were quick to make sure that we too followed suit as Nevada have said.  And as you look at it today we have signed on with one of the greatest and most stringent anti doping policies in the world through USADA.  So our positioning in anti doping in the sport is the same.  We have no place for it in our sport and we are going to, through Jeff Novitzky and the USADA folks, continue to be aggressive to make sure that performance enhancing drugs have no place in the UFC.”

Update September 30, 2015 – yesterday UFC Vice President of Health and Performance Jeff Novitzky was the first from the organization to acknowledge this situation.  He told Josh Samman, in an interview for BloodyElbow, as follows “I think with the whole TRT issue, it goes back to what we started with, which is I don’t think the UFC and the commissions a couple years ago had knowledge of what it was. It’s a very complicated field, anti-doping, and steroids, and TRT. I just think everyone was a little naive a couple years ago, and I give them credit for bringing in someone that hopefully knows enough about it. I don’t profess to know everything there is about anti-doping, but if I don’t know, I know exactly who the world experts are to call. I think that was a part of hiring me to come here, was an acknowledgement within the organization that they didn’t know everything there was to know about anti-doping

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Yesterday Josh Gross wrote a long form article suggesting that the UFC allowed Vitor Belfort to compete at UFC 152 despite a “sketchy” drug test.

In short the article alleges that

  • Belfort was using testosterone
  • the UFC knew this
  • Belfort’s levels were “high” at some point prior to the bout (or at least the high end of normal)
  • the Ontario Athletic Commission, who regulated UFC 152, deferred to the promoter on doping issues
  • the bout went ahead without Belfort’s testosterone use being disclosed to Jones.

Jones won the bout and retained his title.  No harm no foul, right?  Not necessarily.

Here is why such a fact pattern, if true, (and I use the word “if” because the UFC have not weighed in on their version of what occurred) can prove problematic and how MMA’s ‘testosterone era‘ may come back to haunt many.

The fight business is a risky one.  The chance for injury is real.  A career in the fight game comes with a real possibility of long term health consequences including brain damage such as CTE.

Despite all these risks the fight game is allowed based on one fundamental principle, informed consent.  Adults generally can consent to engage in risky activity, even if it poses a risk of harm to themselves and their competitor.  Here the issue of ‘informed’ consent becomes crucial.  Relevant facts which can vitiate consent cannot be swept under the rug otherwise the integrity of the consent is compromised.

Anther legal principle of significant import is that of ‘indivisible injuries’.  It is a principle which states that if multiple events cause an injury, and it is impossible to say which event contributed how much to that injury, anyone legally responsible for an event which contributed to the injury may be liable for the whole of the loss.

Now let’s talk Chronic Traumatic Encephalopathy.  CTE.  The progressive degenerative disease that is plaguing countless career athletes from collision sports such as football, rugby, hockey and boxing.  Eventually MMA will make its way to this list.

CTE is the classic example of an indivisible injury.  If the disease is formed from a life time of blows to the head any bout can play a role.  All a Court would need to decide for legal liability to potentially follow is if a fight that forms the foundation of a lawsuit “aggravated or exacerbated” this condition.  Any fight ending in a KO or TKO victory would likely have little difficulty meeting this test.  From there, the liable party is on the hook for the full toll of the disease.  We are talking about a lifetime of care and damages.

So, lets apply these legal principles to potentially covered up doping in a combat sport –

  1. If a fighter cheats through doping and harms their competitor, legally consent to fight may not exist and the door is open to a lawsuit based on assault.  For a real world example of pre-bout cheating vitiating consent leading to criminal assault you can look to the Collins v. Resto litigation.
  2. If an athletic commission fails to have adequate anti-doping measures in place (hint, Ontario and you can click here to read just how ridiculous Ontario’s anti doping scheme is) they can be exposed to civil liability as well.  Again, want a real world example?  Just ask the British Boxing Board of Control how much their inadequate safety measures cost them.
  3. If the harm is CTE or another indivisible injury the damages in play may be significant.  The Concussion lawsuit strategy of blaming the athlete for a lifetime of shots may not embraced by the courts.
  4. The legal net can target not only the doping competitor, but also others who have a duty of care to the athlete and regulators who ignore their duty in looking after combatant safety with sensible policies on doping.
  5. Not only can allegations of fraud vitiate consent, they can also work to stall limitation periods and set aside contractual provisions with defenses such as waivers of liability and assumption of risk clauses.  Remember that it was allegations of fraud that gave fuel to the NFL concussion lawsuit. (Updateinterestingly an argument can be made that using TRT and not disclosing it is A-OK in Ontario given the Province’s comical anti doping laws).

Regulators and promoters have made strides to clean up doping in MMA in recent years.  The past, however, is not always as easy to sanitize.  If and when the CTE era comes to MMA the TRT era will not be viewed favorably.

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