Archive for October, 2016

Adding to this site’s archived posts addressing combat sports piracy, reasons for judgement were released recently by the US District Court, D. Arizona, assessing damages at $1,000 for the commercial piracy of UFC 172.

In the recent case (Joe Hand Promotions, Inc v. Sizemore) the Defendants displayed UFC 172 in a commercial establishment without paying the Plaintiff commercial sublicencing fees (which in this case would have been between $750-$850).

The Plaintiff sued and obtained summary judgement although the Court declined to award the more substantial damages the Plaintiff sought.  In finding minimum statutory damages being appropriate District Judge Douglas Rayes provided the following reasons:

There is no evidence that Defendants charged patrons a cover to enter Sleepy Dog Brewery. (Doc. 47-2, ¶ 28.) Between 24 and 39 patrons were present, but there is no indication that the patrons actually were viewing the Program, nor is there evidence that Defendants advertised the Program or charged a premium for food and drinks. (Id., ¶ 27.) Based on Sleepy Dog Brewery’s occupancy capacity, it would have cost Defendants between $750 and $850 to broadcast the Program lawfully. (Doc. 42 at 37.) Given the lack of evidence that Defendants achieved “commercial advantage or private financial gain” from broadcasting the Program, the Court awards Plaintiff $1,000 in statutory damages and denies its request for enhanced damages. See Innovative Sports Mgmt., 2014 WL 1790943, at *3 (awarding statutory minimum and denying enhanced damages because there was no evidence that the defendants displayed the program for commercial advantage or private gain).

IT IS ORDERED that Plaintiff’s Motion for Summary Judgment, (Doc. 41), is GRANTED. Pursuant to § 605(e)(3)(C)(i)(II), Plaintiff is awarded $1,000 in statutory damages. The Clerk shall enter judgment accordingly.

In the latest chapter of Mark Hunt’s continued displeasure after facing a series of heavyweight opponents who have been proven or alleged to be on performance enhancing drugs, the fighter has hired legal counsel who is questioning whether the UFC has engaged in actionable racketeering when it comes to doping in the sport.

Hunt has retained the legal services of Christina Denning and as reported by Michael Stets of MMAMania litigation based on racketeering allegations are being explored-

Denning told MMAmania.com she will be exploring the RICO Act (Racketeering influenced and Corrupt Organizations Act) in regards to UFC possibly having knowledge of Lesnar being dirty and allowing him to step into the cage against Hunt at UFC 200 on July 9, 2016.

“One of these things that we are exploring–and same with Brock Lesnar there is cause of action against him as well–but one of the things that we are exploring is actually racketeering, RICO violations, because there is a pattern for the benefit of the UFC to gain monetary benefit off of engaging in this behavior. And it’s given that there is a pattern and Mark can speak to this, but not only Mark, whose fought three people that have tested positive and they asked him to fight some of them again, there are other fighters in the UFC, who do not take any banned substances, who have also been put in the same situation. And my understanding is for those persons, sometimes their next fight’s compensation is dependent on the outcome of what that result is.”

As previously discussed, there are doping skeletons lingering in MMA’s closet and litigation can be a powerful tool to bring these to light particularly if enhanced with allegations of racketeering which would allow the parties to dig deep in the discovery phase.  The UFC would certainly point to their in house anti doping program which can fairly be considered the gold standard for any combat sports promoter.

It is unclear if this lawsuit will be pursued or is simply a negotiating tactic but if launched it will give rise to an ugly chapter for the sport.

Hopefully for Hunt’s and the UFC’s sake a sensible compromise short of full blown litigation can be tabled to address his concerns.

Today I had the pleasure of appearing as a guest on Serius XM’s The Luke Thomas Show along with Bellator light heavyweight champion Liam McGeary.

For those of you that missed the episode in full here is a partial clip of the interview:

For those of you visiting this site for the first time, welcome!

If you are looking for further information on this topic here is a quick link to my previous article addressing the new UFC owners potential promoter/manger conflict of interest:

Are the UFC’s New Owners in a Conflict of Interest?

While Mixed Martial Arts are not legal everywhere and the rules do vary from jurisdiction to jurisdiction in the last 20 plus years a refining of rules have occurred and the so-called “unified rules” of MMA are common throughout most US, Canadian and other jurisdictions.

France has gone against the grain, however, and announced regulations which prohibit many techniques allowed under the unified rules.

As reported by Skysports

A French sports ministry press release on Wednesday titled: “Decree relating to technical regulations and security for public combat sport events” outlawed both the octagonal cage used by the UFC and several integral techniques.  

“Fights will take place on a carpet or in a ring with three or four ropes. The corners of the ring will be protected,’ the report read. 

“The following techniques are strictly outlawed and will lead to immediate disqualification:

“Punches, kicks or strikes with the knees against a fighter on the ground; any strike with the elbow; headbutts; blows to the genitals, the spine, the back of the head or the throat; putting the fingers in the eyes, mouth or nose; 

“Pulling the hair; biting; throwing (the opponent) intentionally onto the head or neck; throwing the opponent out of the ring.”

It should be noted that many of the referenced techniques, such as “headbutts, blows to the genitals, the spine, the back of the head or the throat” and eye gouging are indeed banned under the unified rules.  The restrictions on any ground striking, however, gives rise to a very different version of MMA.

While the restricted ground fighting can be justified under the guise of safety concerns, one questions why the cage is prohibited as legitimate safety issues can arise when wrestling take-downs are attempted in  an elevated ring secured with porous ropes.

For those who study safety issues in combative and contact sports a useful article was published in the latest edition of Neurotrauma and Critical Care News discussing the state of science connecting CTE and other brain injury to contact sports.

The article, titled “Head Impacts in Contact Sports and Long-Term Brain Degeneration” offers an easy to read, plain English summary of what’s known and what still needs to be explored in the world of repetitive head trauma from sports and CTE.

In addressing CTE specifically the authors note as follows:

A 2016 National Institutes of Health (NIH) expert neuropathological panel established that the pattern of CTE is unlike any other form of brain degenerative disease with the collections of NFT or NT occurring in a unique and distinguishing pattern (3). It is believed that the more superficial and frontal areas of the brain are involved due to the direct contact with sports-related head impacts.

These pathophysiological features are associated with a characteristic behavioral syndrome for CTE, with symptoms in four categories: cognition, behavior, mood and occasionally motor. Behavioral changes include amplified aggression, increased impulsiveness, impaired judgment, and risk taking acts. Most often, a 6- to 12-year latency period following retirement from contact sports is then associated with failure in business, financial and marital relationships, homelessness, drug and/or alcohol abuse, depression, mild cognitive impairment and dementia, and many CTE sufferers commit suicide. Researchers have reported that CTE can be considered in two major clinical categories, with one group whose initial features develop at a younger age involving behavioral and/or mood disturbance and another group whose initial symptoms develop later in life and involve cognitive impairment. The language function is usually normal, but intelligence is often ultimately affected by the numerous effects described above (4).

While the risk of developing CTE has historically been discussed in the context of concussive injury and extensive neurotrauma exposure, emerging evidence indicates that a history of diagnosed or major concussions is not a requirement, but instead, repetitive subconcussive injury may play a prominent role in CTE development (5). This finding is based upon lack of documented concussive injury in numerous individuals diagnosed with CTE, although lack of self-reporting by athletes was common, and concussion without loss of consciousness was not recognized and treated as seriously as it is today. Evidence related to subconcussive injury and possible predilection to neurodegenerative disease includes the documented rates and severity of impacts in football linemen, a position in which retired athletes have been diagnosed with CTE (5). Additional evidence is the demonstration of neuroimaging and cognitive changes in those without a history of documented concussions as well as laboratory evidence indicating cellular and ultrastructural alterations without changes in levels of alertness or behavior. Despite the large number of people exposed to concussive and subconcussive injury through various sports and military service, CTE appears problematic for only a small subset of the population exposed to neurotrauma. Nonetheless, we currently do not know the incidence and prevalence of CTE since there has been no longitudinal study conducted to substantiate estimates of several prominent CTE research groups. The largest review to date, Maroon et. al., surveyed the clinical findings in all 153 CTE cases reported in the literature and found that 63 had a history of participation in football with majority of these having played at the professional level (6). The most common age at death of individuals with CTE was the range of 60 to 69, with 72.7 percent dying before the age of 70 (6).

Identification of other variables involved as risk factors for CTE remains in its early stage with speculation that genetics and lifestyle may be implicated. Just as in other forms of neurodegeneration such as Alzheimer’s disease, it has been postulated that the role of the ApoE ε4 (ApoE4) allele may be a susceptibility factor for the development of CTE; however, this has yet to be borne out.

Research continues to try to identify who is at greatest risk for getting concussions and ultimately, CTE. More studies are needed to follow former athletes over many years in order to know the true prevalence of CTE. A major focus of CTE research is investigating confirmation of the diagnosis of CTE in living individuals with several promising imaging technologies being evaluated, with F18DDNP PET imaging for tau and amyloid protein labeling being the most advanced (7).

Currently, there are no established treatments for CTE; therefore, reducing the risk for CTE development becomes the primary goal by limiting the exposure to concussive and subconcussive head impacts. There have been numerous positive changes in recent years involving contact sports, particularly football, resulting in greater safety for all participants. These include limiting contact in practice, eliminating head-to-head hits in practice drills, rule changes to penalize and prohibit egregious cranial hits, improvements in helmet design, new technology, such as helmet sensors and efforts to mitigate brain slosh, among others. It is hoped that in the near future CTE will be eliminated in contact sport athletes, but in the meantime, the possibility and implications of repetitive head trauma causing long-term effects, including brain degeneration, should be understood.

Adding to MMA’s ever growing doping list, Brazil’s MMA Athletic Commission(CABMMA) announced 7 positive anti-doping violations spanning from March – May 2016.

The following chart was released detailing the violations in Portuguese (h/t Joe Seatter)

brazillian-doping-results

Which, crudely translated into English via Google, reads as follows

brazillian-doping-results-translated

The International Mixed Martial Arts Association announced a 4 year ban handed to an athlete for an anti-doping violation.

In a press release published yesterday the IMMAF reports as follows:

An independent tribunal appointed by the International Mixed Martial Arts Federation (IMMAF) has found that Ms Jamie Herrington from Canada, (Gold Medallist in the 145lb division), committed an Anti-Doping Rule Violation at the 2015 IMMAF World Championships of Amateur MMA in Las Vegas. As result, a period of 4 years’ ineligibility has been imposed upon the athlete.

A World-Anti Doping Agency accredited lab found amphetamine in an in-competition sample taken from Herrington.  The B sample confirmed the results.

In issuing a 4 year ban Arbitrator Max Shephard provided the following reasons:

27. If it is found that a doping violation occurred the following rules deal with sanction. The relevant article for a non specified substance is 10.2.1 which states: The period of Ineligibility shall be four years where: 10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional.

58. As I find there are no applicable reductions in this case, the period of ineligibility is one of 4 years with that period commencing on the date of provisional suspension, namely 3rd September 2015.

59. In addition to the period of ineligibility, and as a consequence of my findings, Ms Herrington’s results will be disqualified in the IMMAF World Championships 2015 with all resulting consequences. In this instance this will result in forfeiture of Ms Herrington’s gold medal, disqualification of her results, and subsequent revision of medals in that category.

60. The athlete has a right to appeal to the Court of Arbitration for Sport within 21 days of this decision

The full reasons can be found here – herrington-immaf-decision

Update December 8, 2016 – today it is reported that Jones and the NAC reached a deal where he will receive a one year suspension which coincides with the punishment he received from USADA.

__________________________________

It is reported that Jon Jones, who was pulled from UFC 200 days before his bout with Daniel Cormier due to a failed out of competition drug test, may in fact pull off the ‘contaminated product’ defense.

According to Jones’ lawyer

We’ve been able to establish the source of the prohibited substances. It came from a product that Jon took that was not labelled with either of these substances. We had it tested, the product was contaminated with both of them. I know USADA also independently had the product tested; their testing confirms what we found. We then sent essentially the same pills that we had had tested to be tested by USADA’s lab, which also found the same thing. So pretty much every time it’s been tested, it’s shown that the product is contaminated with both clomiphene and Letrozole, the two substances (Jones tested positive for).

Even unintentional ingestion of a banned substance is a violation of USADA’s and the Nevada Athletic Commission’s ‘strict liability‘ anti-doping standards, however, as has been demonstrated by Tim Means and Yoel Romero, reduced sanctions can follow true cases of contaminated products.

Jones raised several affirmative defenses in his answer to the NAC’s Complaint for Disciplinary Action.  He specifically argues that the NAC should “take into account” any punishment that USADA imposes and has arranged his USADA hearing to take place before his NAC hearing.

jon-jones-defence-screenshot

USADA is in the suspension business while the NAC is in both the suspension and financial penalty business.  Assuming Jones succeeds in obtaining leniency from USADA his legal team hopes that the NAC follows suit.  Only time will tell if they will but there is a legislative reason why the NAC should indeed respect USADA’s precedent.

In the most basic of legal terms the NAC and USADA do have ‘concurrent jurisdiction’ but for very different reasons.  The NAC have jurisdiction due to legislation.  USADA have jurisdiction due to private contract.  All things being equal both are free to impose their own sanctions irrespective of the other.  Recent legislative developments, however, may add fuel to fire Jones’ argument.

Last month a new regulatory framework came into force in Nevada overhauling some of the NAC’s anti-doping provisions.  One of the changes expressly allows reduced suspensions including the potential for no suspension where ‘one or more mitigating circumstances’ exist including the tainted supplement defense.

Additionally, the new regulations allow the NAC to require a promoter to “submit to the Commission a copy of any contract and each amendment to a contract entered into by the promoter and an organization that administers a drug testing program on behalf of the promoter” and allows the NAC to reject a contract that “does not contain sufficient terms to ensure protection of this State, the Commission or unarmed combat“.

I have checked with the NAC and they have not, as of yet, obtained a copy of the USADA contract with the NAC advising as follows:

nac-response-re-usada-contract

Despite not having the USADA contract on file, an exception exists where “A promoter is not required to submit to the Commission a copy of a contract…if the Commission, in its discretion, authorizes the promoter to arrange for a representative of the Commission to review the information and report to the Commission whether the contract or amendment complies with the provisions of subsection 1.

Assuming the NAC has ratified the USADA contract and are content that it “ensures protection of the State, the Commission (and) unarmed combat” then it only makes sense to honor findings and punishments imposed by USADA unless there are compelling reasons not to.  Only time will tell if the NAC accepts this reality of concurrent jurisdiction.

CTE is a part of combat sports.  In fact the disease, which used to be called dementia pugilistica (ie “punch drunk”) has its origins traced back to boxing.

MMA is not immune from CTE.  It is a real risk. Several athletes likely have the disease with fighters such as Gary Goodridge being diagnosed with CTE and being vocal about its realities.  Despite the high likelihood that many MMA athletes have CTE it is a diagnosis that cannot be made definitively until death as study of brain tissue is required.

Now, the Boston Globe Reports, MMA has its first proven case of CTE.

Former Bellator fighter, Jordan Parsons, who was recently killed in a pedestrian/vehicle collision, has been diagnosed with CTE post-mortem.

The Globe reports as follows:

Now, six months after he was struck and killed as a pedestrian by an alleged drunken driver, Parsons is the first fighter in the multibillion-dollar MMA industry to be publicly identified as having been diagnosed with the degenerative brain disease known as chronic traumatic encephalopathy (CTE)

The diagnosis was disclosed to the Globe by Dr. Bennet Omalu, a forensic pathologist who first discovered CTE in a professional football player (in 2003) and a professional wrestler (2007).

Omalu provides the following grounded and sober comments “As a scientist, a physician, and a person of faith, I beg everybody involved with these sports to come together and identify the problems and find solutions’’

Combat Sports athletes should participate only with informed consent of the sport’s real dangers.  Comments calling MMA “the safest sport in the world” do no favors.  Informed consent only comes from an acknowledgement and understanding of the science of CTE and its links to acute and repetitive head trauma.

Regulators also must grapple with this reality both in making informed choices as to when an athlete has been exposed to too much mileage and when considering safety issues such as the fact that gloves, while making for more exciting fights, do much to increase the likelihood of brain trauma.

Today I had the pleasure of making an appearance on the Fight Network’s MMA Meltdown with Gabriel Morency discussing some of the latest legal topics in combat sports.   You can find the full interview here:

As always I’d like to thank Gabriel for having me as a guest.

For those of you visiting here for the first time after listening welcome!  For your convenience here are some quick links to the topics we touched on in the interview.