Archive for December, 2015

Adding to this site’s archived case summaries involving combat sports PPV piracy, reasons for judgement were recently released by the US District Court, WD Kentucky, Louisville Division, assessing damages following commercial piracy of the Mayweather v. Ortiz boxing card.

In the recent case (J & J Sports Productions Inc. v. Caro) the Defendant operated a commercial establishment and showed the Mayweather v. Ortiz card without paying the commercial sublicencing fee of $2,200.

The Plaintiff sued and obtained default judgement.  The Plaintiff sought maximum statutory damages of $110,000.  In finding this request excessive and awarding damages equivalent to the cost of the commercial sub licence fee the Court noted as follows –

Based on these facts, J & J Sports asks the Court to award the maximum allowance for statutory damages, which would be $110,000 under § 605.[1] (D.N. 38, 38-2) But that amount would be excessive. In a similar case from this district, J & J Sports received $1,000, the statutory minimum, under nearly identical circumstances. J & J Sports Productions, Inc. v. El Rey Mexican Restaurant, LLC, No. 3:10CV-730-S, 2014 WL 5500501, at *1 (W.D. Ky. Oct. 30, 2014).

In El Rey, the defendant illegally televised a fight for six individuals. Id. There was no cover charge, advertising, or promotional activity. The Court found that the plaintiff’s evidence of willfulness was weak and did not support a finding that the underlying violation was undertaken for commercial advantage or private financial gain, a necessity under § 605(e)(3)(C)(ii). Id.

Similarly, in Joe Hand Promotions, Inc. v. Tip Off, Inc., No. 3:08CV-600-S, 2013 WL 441989, at *1 (W.D. Ky. Feb. 5, 2013), another case in this district, the Court awarded slightly more than the statutory minimum and found no showing of willfulness. The Court analyzed § 553 instead of § 605, and based its determination on “the (1) absence of a cover charge, (2) patronage of 35 to 40 people, (3) the broadcast on one of two televisions on the premises, and (4) a lack of information concerning commercial gain by the violator.” Id.

There is no material distinction between those cases and this one. Like the offending establishments in El Rey and Tip Off, El Tapatio did not charge for entry, and did not advertise or promote the broadcast. (D.N. 38-4) There were few patrons. (Id.) And like the defendants in El Rey and Tipp Off, El Tapatio did not broadcast the fight for commercial advantage or private financial gain. Thus, Caro was not a willful violator under § 605(e)(3)(C)(ii). But Caro did violate § 605, resulting in a $2,200 loss for J & J Sports. (D.N. 37, 38) The Court considers an award of $2,200 to be reasonable and consistent with the purposes of the statute.

Earlier this month ONE Championship fighter Yang Jian Bing died from complications secondary to a rapid extreme weight cut for a bout scheduled in the Phillipines.  A senseless tragedy that would be made even worse if the landscape which influences fighters to make such extreme cuts remained intact.  Fortunately for the integrity of the sport ONE has announced what may be the strictest weight cut reforms by any promoter in the MMA landscape.

Today ONE issued the following press release –

23 December 2015 – Singapore: Asia’s largest sports media property, ONE Championship™ (ONE), has announced that the organization will lead the global MMA industry by banning weight-cutting by dehydration and instituting a new set of regulations and policies governing the weigh-in procedures and contracted weight limits. The new program, which is the first of its kind for combat sports, is focused on athlete safety by introducing “walking-weight” competition via multiple weigh-ins and tests before and during fight week, including 3 hours before an event begins.  

Athletes will now compete at their “walking-weight”, which will be determined by a robust system that will track his/her weight on a regular basis throughout the period that the athlete is contracted to ONE. Full details of the new weigh-in program can be found below. 

The revolutionary weigh-in program was established after thorough discussions and recommendations by ONE Championship’s medical and competition team, consisting of Chief Doctor Dr. Warren Wang, Chief Medical Advisor Dr. James Okamoto, Vice President Mr. Rich Franklin, Vice President of Operations & Competition Mr. Matt Hume, Global Athlete Services & Competition Director Mr. Richard Auty and China Athlete Services & Competition Director Mr. Vaughn Anderson.

CEO of ONE Championship™ Victor Cui stated, “ONE Championship has paved the way for MMA in Asia and we have always been at the forefront of innovation for the sport. By banning weight cutting by dehydration, we are leading the way globally for enhanced safety standards for professional MMA athletes. We believe that through the implementation of this new weigh-in program, our fighters will enjoy a safer and healthier life inside and outside of the cage. I invite the other two major global MMA organizations, Bellator and UFC, to follow in our footsteps to protect athletes and to eliminate the process of weight cutting by dehydration.”

Vice President of ONE Championship™ Rich Franklin stated,  “Today I’m proud to have been involved with developing the new weigh-in program for ONE athletes. As a former MMA champion, I’ve been through the process of weight-cutting by dehydration countless times and I know first-hand how it affects an athlete physically. I personally understand the importance of safety and competing at your very best as a professional MMA athlete and after reviewing the new regulations and policies governing the weigh-in procedures and contracted weight limits, this new program does both for our athletes.”

Vice President of Operations & Competition of ONE Championship™ Matt Hume stated, “The safety of our athletes is the top priority of ONE. After bringing in top medical officials from both the USA and Asia, we believe we have put together the best possible weigh-in program in combat sports. This program will revolutionize the way weigh-ins are conducted around the world and we look forward to the positive outcome it will have on safety standards related to weight-cutting globally.”

The new program will commence from January 2016 and will be applied to all athletes competing under the ONE banner.

The details of the reforms are as follows –

1. Athletes must submit their current walking weight and daily training weight regularly. Athletes will input and track their daily weight online via a dedicated web portal. Athletes may input data weekly but must include daily weights.

2. Athletes will be assigned to their weight class based on collated data and random weight checks. Athletes are not allowed to drop a weight class when less than 8 weeks out from an event.

3. During fight week, weights are checked daily. Urine specific gravity will also be checked the day after arrival and 3 hours prior to the event. Athletes must be within their weight class and pass specific gravity hydration tests all week and up to 3 hours before the event. If an athlete falls outside the weight, or fails a test, they are disqualified from the event. Doctors may request additional testing at their discretion.

4. Catch weight bouts are allowed. However, the athlete with the higher weight will not be heavier than 105% of the lighter opponent’s weight.

5. ONE will conduct random weight checks on athletes at our discretion.

6. Athletes may petition to change weight classes outside of the 8-week competition zone and must be within their new desired weight at that time. In addition, athletes must pass a specific gravity urine test when their weight is within the limits of the newly petitioned weight class. ONE doctors can request additional testing to determine the amount of weight drop allowed over a specific time.

7. The usage of IVs for the purpose of rehydration will not be allowed.

Overage and limits of weight reduction:
· 3 weeks to event day: Athlete must be within contracted weight class
· 4 weeks: 1.5% bodyweight over max
· 5 weeks: 3%
· 6 weeks: 4.5%
· 7 weeks: 6%
· 8 weeks: +6% max over
(ONE Chief Doctor may approve up to +/- 0.5% maximum error in any weekly weight check)

Changes such as this, coupled with those discussed on the North American landscape earlier this month at California’s Dehydration and Weight Cutting Summit are welcome news for the safety of MMA combatants as the death and injury list due to Rapid Extreme Weight cuts has grown far to long.

Earlier this year I discussed an important decision by the Supreme Court of Canada finding that doping in sports can amount to criminal fraud.  Today the Supreme Court of Canada published their full reasons for judgement.

What does this have to do with MMA and other combat sports?  A lot.  The takeaway from this important case is that if you are guilty of doping in combat sports, not only can you face regulatory penalties, you can be exposed to criminal charges and face lawsuits not only from your opponent but also the betting public!  Simply take this quote from the case and apply it to doping in MMA

[f]raud consists of being dishonest for the purpose of obtaining an advantage and which results in prejudice or a risk of prejudice to someone’s ‘property, money or valuable security’. There is no need to target a victim . . . and the victim may not be ascertained.”

The case (R. v. Riesberry) involved doping in horse racing.  The Defendant was convicted with the Courts finding that seeking to gain an edge through doping defrauded the betting public with an analogy that gamblers are entitled to rely on clean sport much in the same way that investors are entitled to rely on an honest prospectus.

In upholding the fraud conviction the Supreme Court of Canada provided the following reasons –

[25]                          Mr. Riesberry injected and attempted to inject the racehorses with performance enhancing substances. The use of such drugs is prohibited and trainers such as Mr. Riesberry are prohibited even from possessing loaded syringes at a racetrack. This conduct constituted “other fraudulent means” because in the highly regulated setting in which he acted, that conduct can “properly be stigmatized as dishonest”: Olan, at p. 1180. He carried out these dishonest acts for the purpose of affecting the outcome of two horse races on which members of the public placed bets.  His dishonest acts, therefore, were intended to and in one case actually did result in the possibility that a horse that might otherwise have won would not. The conduct therefore caused a risk of deprivation to the betting public: it created the risk of betting on a horse that, but for Mr. Riesberry’s dishonest acts, might have won and led to a payout to the persons betting on that horse. To return to Viscount Dilhorne’s words in Scott, Mr. Riesberry’s dishonest conduct created a risk that bettors would be deprived dishonestly of something which, but for the dishonest act, they might have obtained.

[26]                          There is a direct causal relationship between Mr. Riesberry’s dishonest acts and the risk of financial deprivation to the betting public. Simply put, a rigged race creates a risk of prejudice to the economic interests of bettors. Provided that a causal link exists, the absence of inducement or reliance is irrelevant. I agree with the Court of Appeal that Mr. Riesberry’s reliance on Vézina and Côté v. The Queen, [1986] 1 S.C.R. 2, is misplaced. That case made it clear that

[f]raud consists of being dishonest for the purpose of obtaining an advantage and which results in prejudice or a risk of prejudice to someone’s ‘property, money or valuable security’. There is no need to target a victim . . . and the victim may not be ascertained. [p. 19]

[27]                          This statement covers what Mr. Riesberry did.

Update January 4, 2016 -Full video of the Summit has now been published and can be viewed here –

 

Update – MMAFighting’s Marc Raimondi attended the summit and authored this helpful summary of what transpired.

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Today the California State Athletic Commission is holding a “Dehydration and Weight Cutting Summit” in Los Angeles.

The meeting aims to canvass the well documented injuries and tolls caused by Rapid Extreme Weight Cut practices in MMA, and more importantly discuss various options to tackle this problem.

The various solutions California is considering adopting are as follows –

Weigh-In Modification Options:

  • All Day Weigh-In
  • Fight Weigh-In Two Days Before
  • Increased Time To Weigh-In Athletes The Day Before Competition
  • Second Weigh-In That Would Occur the Day of The Event to Evaluate Weight Gain Where Athletes Would Be Prohibited From Having Added More Than 7.5% In Body Weight Before Incurring A Fine and 10% In Body Weight Before They Would Be Disqualified From Competition

The Use Of Specific Gravity Strip Tests To Detect Dehydration

Expanding The Number Of Weight Classes Under The Association Of Boxing Commission’s Unified Rules For Mixed Marital Arts

Implementation of a “Minimum Allowable Competition Weight” Similar To The NCAA Weight Management System Where Each AthleteIs Assigned a Safe Minimum Fighting Weight Based On Body Composition

Ways To Further Educate Athletes And Trainers Regardingthe Health And Safety Risks Associated With Dehydration/Rapid Rehydration As Well As The Scientific Evidence Demonstrating Decreased Performance

Engaging Influential Fighters And Fight Teams To Publicly Support Safe And Reasonable Weight Cutting Methods And Educating Fighters About The Real Health Risks Of Dehydration/Rapid Rehydration

Establish Mandatory Weight Class Changes If An Athlete Fails To Make Weight Twice In Any Two-Year Period

Banning IV Rehydration In The Unified Rules Of Mixed Martial Arts

 

Update January 12, 2016 – this week Magistrate Judge Delaney vacated the below default judgement.

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Reasons for judgement were recently published by the US District Court, ED California, suggesting damages of $20,000 following the commercial piracy of UFC 175.

In the recent case (Joe Hand Promotions Inc. v. Toto) the Defendant operated a sports bar and displayed UFC 175 without paying the commercial sub licencing fee.  During the event a private investigator attended the bar and counted between 38-41 patrons.

The Plaintiff sued and obtained default judgement.  Magistrate Judge Delaney rejected the Plaintiff’s request for maximum statutory damages of $110,000 but did suggest to the assigned district judge that $20,000 in damages ought to be awarded.  In reaching this conclusion Judge Delaney provided the following reasons:

After determining that entry of default judgment is warranted the court must next determine the terms of the judgment. By its motion for default judgment, plaintiff seeks a judgment in the total amount of $110,950.00. That sum consists of $110,000 for the violation of Title 47[3] and $950 for the tort of conversion. Upon consideration of all of plaintiff’s briefing, the undersigned will recommend that damages be awarded in the amount of $20,000.

The affidavit of the investigator, Jacobus Vanderwesthuizen, establishes that defendant broadcast the program to the patrons of the subject establishment, that there were two televisions in the establishment on which the Program was displayed, that the capacity of the bar was 100 people and that at the time of the broadcast, headcounts were taken three different times showing 24, 38, and 41 patrons. Under these circumstances, the court finds enhanced statutory damages should be awarded in the amount of $20,000.

After surpassing the 100,000 signature threshold the White House was forced to respond to Nick Diaz’s 5 year suspension issued by the Nevada State Athletic Commission.

Unsurprisingly the official response was short noting this is not a matter in the Federal Government’s jurisdiction.  Of interest the comment notes if there are federal issues in the sport that are within their jurisdiction (hint expanding the Muhammad Ali Act to cover MMA) then that is an appropriate use of these petitions. The White House commented as follows –

A response to your petition on the suspension of Nick Diaz:

Thank you for your petition regarding the Nevada Athletic Commission’s suspension of Nick Diaz.

The federal government plays no role in the disciplinary actions taken by state athletic commissions, so we are not in a position to address the specific request raised in your petition. State authorities — in this case, the Nevada Athletic Commission — will generally be the best source for information about those kinds of issues.

However, we appreciate that so many of you banded together to make your voices heard through this platform.

If there are federal policy issues you care about, using this tool can help you and people all across the country communicate directly with a team in the White House focused on responding to petitions that get enough support. For example, in the past few years, we’ve weighed in on issues ranging from education regulations to wildlife trafficking, from criminal justice reform to vaccinations, and from electronic communication and net neutrality to international relations.

Update  December 15, 2015- USADA’s media relations specialist Ryan Madden has replied and confirms that, despite the silence in the TUE policy, that USADA uses WADA standards when reviewing TUE applications under the UFC anti doping policy.  Madden advised as follows

Thanks for your patience… I apologize for not getting back to you sooner.

Regarding your inquiry, the review process for the UFC program is identical to that of the Olympic program with respect to determining the medical need/appropriateness for the TUE. In both cases, the WADA international standards govern the criteria considered by the independent TUE Committee when taking in to account such requests.

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One of the features of the UFC/USADA anti-doping program is that USADA has been given discretion to hand out “Therapeutic Use Exemptions“.  These are basically permission slips to allow an athlete to use an otherwise prohibited substance or method.  As seen prior to the USADA era, the TUE process is not immune from exploitation. 

As learned from the Floyd Mayweather affair, USADA can hand out TUE’s retroactively as well, in other words, after an athlete has been caught using an outlawed substance or method.

Given this clear standards need to be in place but from review of the UFC’s Anti-Doping Policy and the Policy for Therapeutic Use Exemptions standards appear absent.

The World Anti Doping Agency have their own objective list for granting TUE’s.  These are stringent and rarely can be met.  The legal test under WADA for a TUE is as follows –

a. The Athlete would experience a significant impairment to health if the Prohibited Substance or Prohibited Method were to be withheld in the course of treating an acute or chronic medical condition.

b. The Therapeutic Use of the Prohibited Substance or Prohibited Method would produce no additional enhancement of performance other than that which might be anticipated by a return to a state of normal health following the treatment of a legitimate medical condition. The Use of any Prohibited Substance or Prohibited Method to increase “lownormal” levels of any endogenous hormone is not considered an acceptable Therapeutic intervention.

c. There is no reasonable Therapeutic alternative to the Use of the otherwise Prohibited Substance or Prohibited Method.

d. The necessity for the Use of the otherwise Prohibited Substance or Prohibited Method cannot be a consequence, wholly or in part, of the prior Use, without a TUE, of a substance or method which was prohibited at the time of Use.

Interestingly this list is not adopted expressly anywhere in the UFC/USADA Policy for TUE’s.  Instead, all the policy says is that USADA is to grant TUE’s through a TUE Committee.  The Policy is dead silent on what standards the TUE Committee will apply.

The policy suggests that there are indeed ‘criteria for approval‘ because athletes are entitled to these if they are ever denied a TUE.  It is entirely unclear, however, what these criteria are.

Given that these criteria can be used to approve otherwise outlawed doping it is imperative that these be clearly set out.

I reached out to the World Anti Doping Agency who confirm that the UFC/USADA policy is  not monitored by them

WADA tweet re USADA TUE Policy

I have also reached out to USADA who have been kind enough to respond but to date have only pointed to the TUE policy which, as noted above, is silent on criteria.  USADA Communications Staff member Ryan Madden contacted me to further discuss this and I will update this article if/when they respond with details of their TUE standards.

Adding to this site’s archived cases of UFC pay per view event piracy prosecutions, reasons for judgement were released recently by the US District Court, ED California, rejecting a claim for $110,000 in damages but instead awarding $4,750 in total damages.

In the recent case (Joe Hand Promotions Inc. v. Dhillon) the Defendant operated a commercial establishment and displayed UFC 173 without paying the $750 commercial sub-licencing fee to the Plaintiff.

The Plaintiff sued for damages and obtained default judgement.  The Plaintiff sought $110,000 in damages but the Court rejected this demand as disproportionate to the harm done.  In awarding $4,750 in total damages Magistrate Judge Kendall Newman reasoned as follows –

In this case, plaintiff’s investigator, who was present in McHenry’s Bar for approximately 22 minutes, noticed about 7 people in the establishment who were eating or drinking (one table of patrons eating and four persons at the bar). The investigator noted that McHenry’s Bar had three 32-inch televisions, two of which displayed plaintiff’s Program. He also reported that there was no cover charge for entry on the night in question. (See ECF No. 8-3.) Furthermore, there is no evidence before the court that defendants promoted the fight’s airing at McHenry’s Bar, or that a special premium on food and drink was charged on the night of the fight. Indeed, with so few patrons in the establishment, it is highly unlikely that McHenry’s Bar was doing any greater level of business on the night Plaintiff’s Program was shown than at any other time.

In light of this record, which lacks evidence of defendants reaping any significant profit from their piracy of Plaintiff’s Program, the court awards plaintiff $1,000.00 in statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II). However, because plaintiff has alleged that defendants acted willfully and for purposes of direct/indirect commercial advantage or private financial gain (Compl. ¶ 20), and because it is extremely unlikely that defendants innocently or inadvertently intercepted plaintiff’s Program, the court also finds that plaintiff is entitled to $3,000.00 in enhanced statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii). To be sure, as plaintiff contends, defendants and other commercial establishments would be encouraged to violate the law if they knew that the full extent of their liability would not exceed what they would have to pay for a license on the open market. However, when added to the cost of a license fee for plaintiff’s Program, which the court awards pursuant to plaintiff’s conversion claim below, these statutory damages should serve as sufficient deterrence to defendants and similarly-situated commercial establishments, while at the same time remaining proportionate to the circumstances of the case. See J & J Sports Productions, Inc. v. Jurado, 2011 WL 6153605, at *4 (E.D. Cal. Dec. 12, 2011) (collecting awards in similar cases)…

Plaintiff claims $1,250.00 in conversion damages, because that is purportedly the amount that defendants would have been required to pay plaintiff to lawfully air plaintiff’s Program. The affidavit of plaintiff’s president, Joe Hand, Jr., indicates that the commercial sublicense fee to air plaintiff’s Program is based on the capacity of the establishment. (ECF No. 9 at 3, ¶ 8, Ex. 2.) The problem is that plaintiff has provided no evidence of the actual capacity of McHenry’s Bar. Plaintiff’s investigator noted the presence of 7 people at the time he visited McHenry’s Bar, but failed to indicate the establishment’s overall capacity. (See ECF No. 8-3.) As such, the court has no basis to award the requested $1,250.00. Instead, the court awards conversion damages of $750.00, which are based on the commercial sublicense fee that would have been charged if McHenry’s Bar had a capacity of 0-50 people. (ECF No. 9, Ex. 2.)

 

Update – Donald Cerrone now says he was only joking about having a TUE for IV use .

Cerrone Tweet____________________

Donald “Cowboy” Cerrone has apparently been given a Therapeutic Use Exemption allowing him to rehydrate via an otherwise banned IV by the United States Anti Doping Agency ahead of his upcoming UFC lightweight title bout.

If true his opponent, Rafael Dos Anjos, is none too pleased with this arguing it gives the challenger an unfair advantage.

So does Cerrone meet USADA’s TUE requirements for IV use?  Arguably not.  Here’s why –

The UFC’s Anti Doping Policy allows for TUE’s provided the prohibited substance or method is taken in a way that is “consistent with the provisions of a TUE granted by USADA“.

TUE’s are to be granted by USADA’s Therapeutic Use Exemption Committee.  Interestingly the Anti-Doping Policy and the TUE policy appear to be silent on the standards the TUEC will use.

If there are no standards I suppose they are free to make it up as they go along which can be a story in itself.  If, however, USADA is applying WADA standards Cerrone appears to not meet the criteria.

The WADA criteria for granting a TUE are as follows –

a. The Athlete would experience a significant impairment to health if the Prohibited Substance or Prohibited Method were to be withheld in the course of treating an acute or chronic medical condition.

b. The Therapeutic Use of the Prohibited Substance or Prohibited Method would produce no additional enhancement of performance other than that which might be anticipated by a return to a state of normal health following the treatment of a legitimate medical condition. The Use of any Prohibited Substance or Prohibited Method to increase “lownormal” levels of any endogenous hormone is not considered an acceptable Therapeutic intervention.

c. There is no reasonable Therapeutic alternative to the Use of the otherwise Prohibited Substance or Prohibited Method.

d. The necessity for the Use of the otherwise Prohibited Substance or Prohibited Method cannot be a consequence, wholly or in part, of the prior Use, without a TUE, of a substance or method which was prohibited at the time of Use.

Cerrone’s medical condition requiring an IV to rehydrate is missing intestines.  Applying the above test this ‘condition‘ is problematic in a few ways.

Leaving aside the fact that an IV does nothing to “treat” missing intestines as required by paragraph a, paragraph c is clearly not met as there is a “reasonable alternative” to using an IV.  Not dehydrating in the first place.

Rapid Extreme Weight Cuts are perhaps the biggest danger in the sport with many documented injuries and even death.  Avoiding extreme dehydration will take away the need for IV re hydration.  Accordingly it difficult to see how the WADA TUE policy can be met in these circumstances.

An application for such a TUE is problematic in its own right as it is an admission by a fighter that they plan to dehydrate so profoundly 24 hours before a bout that they”would experience a significant impairment to health” absent medical intervention which no regulator should allow.

If USADA’s TUE Committee is not applying WADA standards that begs the question of exactly what standards are they adhering to?  I have asked USADA about their TUE standards and will update this article if/when they reply.

Tweet to USADA re TUE Standards

The Province of Ontario has been one of the slowest in Canada to respond to their Criminal Code powers to legalize amateur mixed martial arts and other combat sports.  As previously discussed, Ontario’s response to date has been silence making amateur MMA along with a host of other combative sports technically illegal in the Province.

Last year the Province proposed to legalize the following list of amateur combative sports –

-boxing
– jiu jitsu
– judo
– karate
– kickboxing
– mixed martial arts
– taekwondo
– wrestling
– wushu

Since then the Province has still not taken any formal action despite requesting stakeholder feedback.

I follow up from time to time with Ontario’s Ministry of Tourism, Culture and Sport and today they advised they remain committed to “clarifying” the legal landscape of amateur combat sports.

The Ministry referred me to the following comments advising that one of their ‘sport plan priorities’ is to

  • Clarify the legal status of amateur combative sport and work with the combative sport community to develop and implement appropriate health and safety measures

And that they have an ‘action plan’ to “clarify the legal status of amateur combative sport and work with the combative sport community to develop and implement appropriate health and safety measures in response to federal legislative changes.

Time will tell if or when Ontario will follow through with this commitment.