Archive for October, 2015

In the latest case assessing damages for pay per view piracy of a combat sports product, reasons for judgement were released this week by the US District Court, W.D. Missouri, ordering $11,960 to be paid following piracy of a boxing pay per view card.

In the recent case (J & J Sports Productions, Inc v. Main Hookah Lounge) the Defendant lounge displayed the Manny Pacquiao v. Juan Manuel Marquez, IV, Welterweight Fight Program without paying commercial sub licencing fees to the Plaintiff.  The Defendant failed to respond to the lawsuit and default judgement was obtained.

The Plaintiff sought maximum statutory damages of over $110,000 although the Court declined this request finding it excessive.  The Court ordered payment of $2,250 in statutory damages representing the cost of the sub licencing fee plus the cover charge profit made by the Defendant, $6,750 in enhanced damages because the piracy was intentional and for commercial gain and lastly ordered payment of the Plaintiff’s legal fees.

In summarizing the assessed damages and dismissing a claim for tort damages under State law for conversion Chief District Judge Greg Kays provided the following reasons:

Under Section 605 above, Plaintiff receives the amount of money it would have received had Defendant obtained the program lawfully through paying the commercial licensing fee— $2,200—plus the amount that Defendant profited from the illicit exhibition. This Court also awards enhanced damages of three times the amount Plaintiff would have made had the Broadcast been lawfully purchased by Defendant. Plaintiff has been made whole with the award of base damages, attorneys’ fees, and costs under Section 605. The award of enhanced damages under Section 605 further compensates Plaintiff for lost profits and serves as a deterrent. Because conversion claims are also compensatory, a damages award under the state law conversion claim would be duplicative of the Section 605 award. After a review of the relevant case law, the Court finds that allowing damages for conversion in the instant case would result in a double recovery. Thus, recovery is barred.

Update November 2, 2015 – Conor McGregor’s teammate, Gunnar Nelson, recently provided an interview indicating McGregor was indeed injured going into UFC 189 telling Submission Radio thatHe showed up on one leg. That’s basically what happened. He did the best he could. He was injured. There’s no doubt. He was injured going into the fight and still performed. I think that’s very respectful.

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If the Nick Diaz saga and the Manny Pacquiao lawsuits have not gotten the point across let me take a stab at it, lying, under oath, on a pre-bout medical questionnaire can come with a host of legal consequences such as lawsuits, perjury charges, suspensions, fines and even convictions for criminal fraud.

Conor McGregor may be the latest member to test these legal waters.  Last week McGregor revealed during a fan Q and A period that  “fourteen weeks before the fight (UFC 189) I tore 80 percent of my ACL“.  Was this profound injury healed by the time of the bout?  Apparently not with McGregor going on to note “I went into that fight and I beat Chad on one leg“.  An admirable feat.

So this injury must have been disclosed to the Nevada State Athletic Commission on McGregor’s pre-fight medical questionnaire right?  Not quite.  I’ve obtained a copy via public records request from the NSAC and it reveals that he checked no to the question “Have you had any injury to your knees, ankles, or feed that needed evaluation or examination

McGregor UFC 189 Questonnaire Screenshot

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He does reveal that he had an ACL surgical repair which presumably relates to his 2013 surgery, not this recent reported injury. McGregor is known for his hyperbole.  Perhaps he was exaggerating matters in his recent Q and A session with fans where he revealed this injury.  If so then no harm no foul. Or perhaps his 80% ACL Tear did not “need evaluation or examination” which would make the answer truthful but this is hard to imagine.  If this is not hyperbole, however, and he was not candid with the NSAC then he may just find himself as the latest athlete forced to answer for his under oath representations to the regulator.

The fate of the US Manny Pacquiao class action lawsuits are unclear but fighters should beware that the Supreme Court of Canada recently cleared the way for class action exposure to athletes who are not candid with government regulators.  Canada’s highest court agreed with reasoning that compared sports gamblers to investors who are allowed to rely on the integrity of regulatory filings and dishonesty in these can constitute criminal fraud –

“where there is a failure to disclose material non-compliance with the regulatory scheme, it is no answer to say bettors may have relied on other factors in making their bets. Bettors were entitled to assume compliance with the regulatory scheme when weighing those others factors and coming to a final decision. Non-compliance with the regulatory scheme in a manner so as to affect the outcome of a race necessarily puts the bettors’ economic interests at risk. Bettors were deprived of information about the race that they were entitled to know; they were also deprived of an honest race run in accordance with the rules.”

The consequences for dishonesty with regulatory filings are not academic.  For McGregor’s sake, hopefully his comments were nothing more than hyperbole and he does not become the latest focal point of the legal world colliding with combat sports regulation.

Today the Nevada State Athletic Commission Suspended Rousimar Palhares 2 years in addition to a $40,000 fine plus legal costs for not promptly releasing a submission hold upon referee direction.

Tweet re Mazzagatti testimony

The infraction occurred at World Series of Fighting 22 where then Welterweight Champion Palhares retained his title via kimura submission.  He was subsequently stripped of his title by the promoter and temporarily suspended by the NSAC pending today’s hearing.

This is not a first time occurrence for Palhares and his reputation preceded him with the NSAC being specifically concerned that this not occur.  This history likely influenced the level of punishment imposed.

Tweet re Bennett

Tweet re Palhares

Below is video of the infraction.

(Below GIF’s Courtesy of ZombieProphet)

After UFC middleweight Caio Magalhaes lost to Josh Samman at the UFC’s TUF 21 Finale in July 2015 he displayed poor sportsmanship by spitting blood at his opponent and catching referee John McCarthy in the crossfire.

Today the NSAC concluded this behavior constituted “conduct that is detrimental to a contest or exhibition of unarmed combat” and issued a 6 month suspension and 40 hours of community service for the infraction.

In an interesting side story, Magalhaes informed the commission, during his plea for leniency, that he had dinner with Samman following the bout and buried the hatchet.  Samman promptly tweeted that this was, at least in part, false.  If the Commission was misled while Magalhaes was under oath this can open the door to far more serious consequences.

Samman Tweet

Update November 30, 2015 – The rehearing was scheduled to proceed today but apparently has been further delayed another month.

Update October 29 – The October 29 hearing has been adjourned for a month as Silva’s lawyer was not provided with relevant documentation in a timely manner

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NSAC Silva Rehearing photo(photo via @fightersagenda)

After having his lifetime ban for running from a Nevada State Athletic Commission drug tester overturned as ‘arbitrary and capricious’ Wanderlei Silva’s rehearing is agenda item #1 in today’s Commission meeting – NSAC October 29, 2015 Agenda

Today’s hearing will not focus on whether the NSAC had authority to request an out of competition test of Silva (who was unlicensed at the time) rather it will focus solely on what a fair punishment is for such an infraction.  A further appeal is apparently underway about whether the NSAC enjoyed jurisdiction to ask for the test in the first place, but on the assumption they did, today the NSAC will set the tone for punishments that can be expected for test avoidance.

Of note the NSAC’s suggested ‘tough on doping’ penalties (which were not in force at the time of Silva’s test avoidance) call for a 48 month ban for first time test avoidance infraction.

Two regulatory topics that I have been vocal about that can benefit from reform in Nevada are their methods for determining in competition marijuana use and the apparent loophole that exists for blood doping in the State.  You can click here and here for my prior discussion of these issues.

I have submitted the below public comment to the Nevada State Athletic Commission and am advised by the Commission that these have been given “to the recording secretary it will be placed in public comment.” for their next regulatory hearing scheduled on October 29, 2015.

I don’t expect immediate comment but the NSAC is looking at regulatory reform in the upcoming months and hopefully these items receive scrutiny.  I republish these here for anyone interested –

  1. Review of the marijuana metabolite screening system is warranted.  Marijuana, alcohol and other so called ‘drugs of abuse’ are banned ‘in competition’ in the combat sports world for the safety of the fighter consuming them.  No regulator will allow a fighting athlete to compete while impaired and little argument can be made against this objective.  To this end commissions largely rely on metabolite screening in urine tests which do nothing to determine if an athlete is impaired on marijuana while competing.  These tests only show that marijuana was consumed some time in the past.  Various jurisdictions set artificial thresholds which, if exceeded, are deemed to be a violation of the in competition ban but these again do not measure sobriety

A far more sensible approach would be to rely on the integrity of pre bout medical screenings.  Physicians are present at regulated events.  It would take little time and effort for a once over to ensure no competitor is about to fight while showing signs of impairment.  If a fighter is not objectively impaired in any way and satisfies physicians present then the regulator’s legitimate safety concerns are meaningfully met.  Allowing a bout to take place, on the other hand, and finding traces of substances that could have been consumed days or weeks prior, is disingenuous,  misses this objective and is a practice which regulators should seriously consider re-evaluating.

  1. Clarity is requested on whether IV Use and Blood Doping are allowed by your Commission – Nevada legislation is not clear on whether IV use is prohibited and arguably it is not. NAC 467.850 sets out Nevada’s anti-doping scheme.  Interestingly while IV use is prohibited under the World Anti Doping Agency’s standards, this prohibition does not seem to be specifically adopted in Nevada. Nevada’s regulations name a list of specific banned substances and then go on to also prohibit “Any drug identified on the most current edition of the Prohibited List published by the World Anti-Doping Agency”.

WADA’s Prohibited List essentially breaks down to two broad categories, prohibited substances and prohibited methods.  The above language (assuming “drug” = “substances”) clearly adopts WADA’s prohibited substances list.  However, the language does not appear to include WADA’s prohibited methods which include things such as blood doping, IV use and gene doping.

Nevada’s peculiar regulations appear to specifically allow “injections” with NAC 467.850(3) listing “injections” that are not prohibited but simply “discouraged” and subsection 4 listing “injections” that are allowed which include saline, a substance routinely used in IV rehydration.  Clarity on this important issue is requested.  In short, are blood doping and IV rehydration prohibited by your commission and if so please point out the legislative provision that makes this prohibition clear?

Adding to this site’s archives of USADA anti-doping punishments (which are relevant for UFC fighters as these precedents set the tone for the suspensions they can expect under the UFC’s Anti-Doping Policy) a decision was released today setting out a two year ban for an athlete found using testosterone.

Today’s decision (Oscar Tovar) involves a cyclist who was tested in competition.  CIR analysis was used on a urine sample which revealed the use of testosterone.

USADA’s press release reads as follows –

After a thorough review of the case, including a review of Tovar’s medical records, USADA determined that a two-year period of ineligibility was the appropriate outcome in this case. Tovar’s two-year period of ineligibility began on May 17, 2015, the day the sample was collected. In addition, Tovar has been disqualified from all competitive results achieved in competitions sanctioned by the UCI or any Code signatory on and subsequent to May 17, 2015, including forfeiture of any medals, points, and prizes.

Update – October 27, 2015 – Brian Dunn of the Nebraska State Athletic Commission replied to my inquiry about the regulatory framework of this bout as follows –

Hi Erik,

This bout was overseen by the Nebraska Athletic Commission.  We do not have any specific policy, but each bout is evaluated individually.  We considered this contestant to be male for the purposes of competition

and further as to whether the transgender competitor had undergone breast augmentation or hormone treatment –

I do not have that information.  Mr. Russell asked for a variance regarding the top.  At first, I denied the request.  He still attended the weigh in (he did not remove his shirt) and intended to compete.  He acted serious about the competition, and not using his “transgender” status for attention-seeking, so the day of the event, I approved his request for the variance to wear the top.

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In what, to my knowledge, is a first in the MMA legal landscape, last week the Nebraska Athletic Commission sanctioned an MMA bout involving a pre operative transgender fighter.  The bout occurred on October 23 at OFC 108 in Omaha, Nebraska.  The fight promoter, Omaha Fight Club, confirmed to me that “yes this happened” and further that

“Jason (Michelle) Russell is the fighter The commission didn’t have a problem with the fight being regulated due to it being two born male fighters both with genitals attached, as far as the choosing of fight attire it is the fighters preference since he is living as a female. Jason (Michelle) doesn’t want to fight females he just wants to be one. He admits he didn’t take the fight serious and needs to get back into a gym if he wants to continue fighting!”

The bout was uploaded to YouTube and can be found here –

The athlete was apparently pre-operative but appears to have had breast augmentation (I make this assumption based on the top being worn) although I cannot confirm if this assumption is accurate.  I have reached out to the Nebraska Athletic Commission asking if they have any specific rules or regulations in place regarding such bouts.  I will update this article if/when they reply.

In 2013 the ABC’s Medical Committee released their position paper on suggested transgender policies for combative sports which can be found here .

Michigan, one of a handful of US States which allow but do not presently regulate amateur mixed martial arts, is seeking to pass legislation changing this.  This overhaul comes two years following the death of an amateur fighter in an unregulated Michigan event.

The proposed legislation (Senate Bill -0152) as passed by Senate on October 22, 2105 can be found here.

In short the legislation will expand Michigan’s Unarmed Combat Commission’s jurisdiction, which presently regulates professional boxing and MMA to also include amateur MMA and other forms of unarmed combat defined as “any form of competition in which a blow is usually struck or another fighting technique is applied that may reasonably be expected to inflict injury“.  A few exceptions to this broad definition are noted such as amateur boxing events with certain affiliated bodies along with certain scholastic competitions.

The legislation will add much needed oversight to amateur events instead of leaving safety measures in the hands of promoters.  The legislation also speaks to giving the commission both in and out of competition drug testing powers including urinalysis and chemical tests.

While the legislation covers fairly consistent ground in the world of North American combat sports regulation, one interesting feature is the legislation’s noted weight classes which will apply to professional boxing and professional and amateur MMA.  These deviate from the unified rules of MMA and read as follows –

“WEIGHT CLASS” MEANS 1 OF THE FOLLOWING:

(i) MINI FLYWEIGHT, IF HE OR SHE WEIGHS 105 POUNDS OR LESS.

(ii) LIGHT FLYWEIGHT, IF HE OR SHE WEIGHS 106 TO 108 POUNDS.

(iii) FLYWEIGHT, IF HE OR SHE WEIGHS 109 TO 112 POUNDS.

(iv) SUPER FLYWEIGHT, IF HE OR SHE WEIGHS 113 TO 115 POUNDS.

(v) BANTAMWEIGHT, IF HE OR SHE WEIGHS 116 TO 118 POUNDS.

(vi) SUPER BANTAMWEIGHT, IF HE OR SHE WEIGHS 119 TO 122 POUNDS.

(vii) FEATHERWEIGHT, IF HE OR SHE WEIGHS 123 TO 126 POUNDS.

(viii) SUPER FEATHERWEIGHT, IF HE OR SHE WEIGHS 127 TO 130 26 POUNDS.

(ix) LIGHTWEIGHT, IF HE OR SHE WEIGHS 131 TO 135 POUNDS.

(x) SUPER LIGHTWEIGHT, IF HE OR SHE WEIGHS 136 TO 140 POUNDS.

(xi) WELTERWEIGHT, IF HE OR SHE WEIGHS 141 TO 147 POUNDS.

(xii) SUPER WELTERWEIGHT, IF HE OR SHE WEIGHS 148 TO 154 4 POUNDS.

(xiii) MIDDLEWEIGHT, IF HE OR SHE WEIGHS 155 TO 160 POUNDS.

(xiv) SUPER MIDDLEWEIGHT, IF HE OR SHE WEIGHS 161 TO 168 7 POUNDS.

(xv) LIGHT HEAVYWEIGHT, IF HE OR SHE WEIGHS 169 TO 175 POUNDS.

(xvi) CRUISERWEIGHT, IF HE OR SHE WEIGHS 176 TO 200 POUNDS.

(xvii) HEAVYWEIGHT, IF HE OR SHE WEIGHS 201 TO 260 POUNDS.

(xviii) SUPER HEAVYWEIGHT, IF HE OR SHE WEIGHS 261 POUNDS OR 12 MORE.

The legislation is expected to be sent to the State’s Governor for consideration shortly.

Update December 18 – today the Supreme Court of Canada published their full reasons for judgement.  A link to these can be found here.

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I have previously suggested that PED use can amount to fraud in the world of combat sports and a cheating athlete can be exposed not only to regulatory consequences but also criminal and civil repercussions as well.

Today the Supreme Court of Canada released reasons for judgement making this more than a mere suggestion.  In short the Court supported a decision finding that doping in sports does indeed amount to criminal fraud.

Today’s case (R. v. Riesberry) concerned a decision from the Ontario Court of Appeal involving doping in horse racing.  The Ontario courts convicted the Defendant finding that doping horses defrauds the betting public.  The Supreme Court of Canada unanimously dismissed the appeal making the Ontario reasoning the law of the land.  In short the rcourt supproted the following reasons when it comes to doping being fraud in the world of sports –

…Where there is an attempt (successful or not) to affect the outcome of a race through the use of banned performance-enhancing substances, such a significant breach of the regulatory scheme necessarily places bettors at risk of being deprived of their bets. Indeed, as the trial judge found, the very purpose of the injection was to create “an unfair advantage” for the respondent’s horse. It is obvious that a horse injected with performance-enhancing drugs could run differently than if it was not so injected; in fact, that appears to be at least part of the reason for the prohibition.[4]

[22]      Further, as in Drabinsky, where there is a failure to disclose material non-compliance with the regulatory scheme, it is no answer to say bettors may have relied on other factors in making their bets. Bettors were entitled to assume compliance with the regulatory scheme when weighing those others factors and coming to a final decision. Non-compliance with the regulatory scheme in a manner so as to affect the outcome of a race necessarily puts the bettors’ economic interests at risk. Bettors were deprived of information about the race that they were entitled to know; they were also deprived of an honest race run in accordance with the rules. In these circumstances, the trial judge erred in law because he failed to take account of the regulatory scheme in considering the risk of deprivation issue.

[23]      Further, we agree with the Crown that the trial judge’s reliance on Vézina, supra was misplaced. In Vézina, the Bank of Montreal was a mere conduit for bonds to be submitted to the Bank of Canada and had no money of its own at risk. Here, bettors had their bets at risk. The legal analysis in Vézina has no application to this case.

[24]      Finally, in our view, the trial judge’s closing comments that some bettors would have altered their betting behavior if they had known about the doping, and that the injections created “an unfair advantage” for the respondent’s horse establish that but for his errors of law, he would have concluded that a risk of deprivation had been established.

[25]      In our view, each of the errors committed by the trial judge could have affected his decision on the fraud and attempted fraud charges. In the result, we conclude that the trial judge erred in law in acquitting the respondent on the fraud and attempted fraud charges and we allow the appeal from the acquittals.

The lesson?  If you cheat in combat sports by doping, win or lose you may be facing far greater penalties that those issued by an athletic commission.