Archive for November, 2016

One of the competing groups seeking to organize fighters has lost one of its key players.  Leslie Smith, who was vocal in championing the Professional Fighters Association has published a letter explaining that she is stepping away due to sports agent Jeff Borris failing to keep fighter names considering joining the PFA confidential.

This development occurs on the cusp on an announcement where it is anticipated that fighters managed by Creative Artists Agency (a key competitor to current majority Zuffa stockholder WME-IMG  who are arguably a in a regulatory conflict of interest by also managing current UFC fighters) will seek to implement “industry redefining” changes.

Smith’s full statement, which continues to support efforts of fighters to organize and lays out concrete goals, is set out below:

This is an open letter to apologize to all the fighters, trainers and managers that I introduced to Jeff Borris in the capacity of the PFA.  I am stepping away from the PFA because our vision and methodology surrounding a fighters union are not aligned.  I apologize to any of the fighters and their supporters who may have been negatively affected by the actions of Jeff Borris though the PFA.  I still believe in the need for, and will continue to work toward, a union for fighters under the UFC banner.  Previously I thought we needed help and leadership from a well-established sports agent such as Jeff Borris.  I believe strongly now that for a fighter union to succeed it must be the fighters that lead and choose.

In order to assist in the progression of PFA, I made a list of active fighters that I thought would be great candidates to serve on an interim executive board.  I spoke to those fighters and solicited insight from several managers on the condition of confidentiality.  I shared all the names and information I had compiled with Jeff Borris, because he pledged confidentiality and professed his desire to see the liberation of fighters from restrictive contracts and one-sided negotiations.  Most of the fighters to whom I spoke prudently withheld absolute commitment to the union until such time that they felt confident in the union and that the best leadership was in place.  I was horrified when I read an article published by a major MMA news outlet that included a list of fighter names, some of whom I had spoken regarding potential involvement in the PFA.  The names included people to whom I had promised confidentiality, and those people had neither pledged commitment nor consented to the release of their names.  I had also provided this information to Lucas Middlebrook, the labor lawyer involved with the PFA.  However, I am confident, based on my opinion of his character as well as through direct discussion with him that he would not betray the trust nor jeopardize the careers of the fighters and their supporters.  When I reached out to Jeff Borris to inquire how the names could have been released, I was severely disappointed to hear that he had started creation of a board of agents with whom he was sharing information – including, in my opinion, the information he assured me would be kept confidential.

Jeff might have been doing everything with the best of intentions.  However, I cannot work with him anymore given the opinion I have formed regarding his unique perception of the concept of confidentiality and lack of transparency.  I have not written this letter to cast a negative light on Jeff Borris.  Quite the contrary! I have written this letter because I need to apologize and explain to everyone who trusted me enough to entertain a conversation with me why their names ended up on a publicized list that incorrectly asserted they had committed to the union.

I am deeply passionate about the need for a promotion specific union to bargain for UFC fighters health care, negotiating power and revenue shares.  At the same time I believe in the MMA Fighters Association’s ability to operate as an umbrella over all MMA promotions, and deal with issues like regulating state commissions and officials, as well as looking out for fighters in all promotions.

I believe we need a union specific to both the UFC and Bellator.  In fact, it could be the same union that administers separate CBA’s for each promotion.  My vision of this union is a democratic one in which the fighters in the UFC and Bellator will be the ones that lead the organization and decide the issues that affect the fighters.  We, as fighters, do not need agents or lawyers making policy decisions on behalf of our union, because as fighters, the labor and product we provide places us in a unique situation to bargain for our due share of leverage and the revenue we are generating.  As with any other union composed of professionals, we will hire professionals, such as lawyers or economists, but we will decide who those professionals will be, they will work for us.

I look forward to the next step in this journey, which will be to work closely with other fighters that have 100% committed to the union in order to draft a constitution and bylaws, which will secure control of our union exclusively for fighters, not agents or lawyers.  Once we are an established labor organization, and information does not have to be confidential, we shall diligently research and examine potential formation of an advisory board of agents, as these bodies have proved useful to the other major players unions in this country.  However this will be done transparently and only after receiving democratic approval from the fighters represented by our union.

The next steps will be:

1)    Establish an interim executive board of UFC and Bellator fighters;

2)    Draft a constitution and bylaws, which will serve as the governing document for our union;

3)    Collect authorization cards with the goal of obtaining cards from a minimum of 30% of UFC fighters;

4)    Once we have the requisite number of cards,  asking the UFC to voluntarily recognize our union, and if it refuses then we will submit the cards to the NLRB;

5)    The NLRB will determine if we have presented the necessary amount of cards to demonstrate showing of interest, and if so will commence the process of organizing an election.  In order to be certified, 50% plus 1 of all eligible voting fighters will need to approve unionizing.  We would expect the UFC to argue that we are independent contractors as opposed to employees, but we feel strongly that our status as employees entitles us the right to unionize.  That issue, if raised by the UFC, will be decided by the NLRB;

6)    Once certified we will hold an election amongst the membership to determine the dues structure and to elect a full-term executive board comprised of fighters.

7)    The elected executive board will be empowered to construct a negotiating committee, including hiring necessary professionals, to begin negotiations toward our first collective bargaining agreement.

I am excited to make the unionizing of fighters a reality.  I want to focus now on making sure when it does happen, the union will be our union – led and chosen solely by fighters.

Update November 29, 2016 – It is being reported that the NYSAC is prepared to waive the suspension in lieu of a fine thus clearing the way for Gastelum to be licenced in Ontario assuming prompt payment of the of the fine.

okamoto-tweets

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Update – Shortly after publishing this article Gastelum replied with the following tweet leading to speculation that the NYSAC may have backed away from their suspension

gastelum-tweet

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Today the UFC announced that Kelvin Gastelum is scheduled to fight Tim Kennedy at UFC 206 in Toronto.  This, despite Gastelum currently facing a 6 month suspension from the New York State Athletic Commission after failing to make weight and attend the weigh in for UFC 205.

The UFC is somewhat cautious in this fight announcement noting it is “pending approval from the athletic commissions“.

Gastelum is apparently appealing his suspension and if the NYSAC is willing to clear the path then no harm no foul.  If, however, the suspension remains in place he may face regulatory issues being licensed in Ontario.

Regulation 52 passed pursuant to Ontario’s Athletics Control Act governs the licencing of professional MMA fighters in the Province.  Section 8(5) of the Regulation requires Gastelum to hold a “current valid licence to take part in professional contests or exhibitions in another jurisdiction“.  This is a mandatory requirement and there does not appear to be discretion to waive it (although the requirement may violate Canadian constitutionally guaranteed ‘mobility rights’).

The full section reads as follows:

(5) A person who is not a resident of Ontario and who applies for a permit to take part in a professional contest or exhibition shall at the time of applying provide evidence satisfactory to the Commissioner that the person is the holder of a current valid licence to take part in professional contests or exhibitions in another jurisdiction.  R.R.O. 1990, Reg. 52, s. 8 (5); O. Reg. 197/06, s. 4 (1); O. Reg. 465/10, s. 7 (2).

Leaving aside an unlikely full blown constitutional challenge to requirement, Gastelum will have to produce a valid licence from “another jurisdiction“.  His New York licence is suspended so that will not do.  Unless he can provide a valid current licence from another jurisdiction or New York changes their mind Ontario’s hands may be legally tied in approving this fight.

Additionally, section 17.2 of the Regulations may act as a barrier even if Gastelum can navigate the above with the following requirement:

17.2 (1) If a participant is under contract to take part in a professional contest or exhibition, the participant or promoter of the contest or exhibition shall, by the time specified in clause 11 (1) (b) or (c) as applicable, submit to the Commissioner evidence satisfactory to the Commissioner that there are no existing suspensions, prohibitions or other limits restricting or limiting the participant from taking part in a professional contest or exhibition under any other jurisdiction.  O. Reg. 465/10, s. 16.

(2) A participant mentioned in subsection (1) who does not submit the evidence described in that subsection shall not take part in the contest or exhibition.  

Adding to this site’s archived posts addressing combat sports piracy, reasons for judgement were released recently by the US District Court, ED California, assessing damages for the commercial piracy of UFC 173.

In the recent case (Joe Hand Promotions, Inc v. Ahmadi) the Defendant displayed UFC 173 in a commercial establishment without paying the commercial sub licencing fees.  The Plaintiff sued and obtained default judgement.  The Plaintiff sought maximum statutory damages of $110,000 but the Court rejected this request and instead awarded damages totaling $6,000 Magistrate Judge Deborah Barnes provided the following reasons:

Under the Federal Communications Act, a plaintiff may elect to seek either actual or statutory damages…. The statute provides for statutory damages for each violation of not less than $1,000 and not more than $10,000, as the court considers just… Plaintiff seeks the maximum award of $10,000. The statute also authorizes enhanced damages of not more than $100,000 if the court finds the violation was “committed willfully and for purpose of direct or indirect commercial advantage or private financial gain.” ….. “[T]he mere assertion that Defendant acted willfully is insufficient to justify enhanced damages.” Kingvision Pay-Per-View, Ltd. v. Backman, 102 F.Supp.2d 1196, 1198 (N.D. Cal. 2000).

Here, plaintiff seeks $100,000 in enhanced statutory damages. Plaintiff argues that the requested amount is justified primarily because of the need to deter broadcast piracy in light of the harm done to plaintiff’s business as a result of such activities. In determining whether enhanced statutory damages are appropriate, courts usually consider “repeated violations over an extended period of time; substantial unlawful monetary gains; significant actual damages to plaintiff; defendant’s advertising for the intended broadcast of the event; defendant’s charging a cover charge or charging premiums for food and drinks.” Kingvision Pay-Per-View, Ltd. v. Gutierrez, 544 F.Supp.2d 1179, 1185 (D. Colo. 2008) (quotation omitted).

Plaintiff has submitted an affidavit from its investigator stating that during the airing of the program at defendant’s establishment the investigator observed a maximum of 26 patrons inside the establishment and that there was no cover charge to enter the establishment. (ECF No. 14-3 at 2.) Plaintiff has come forward with no evidence of any promotion by defendant that the fight would be shown at the establishment, that a special premium on food or drink was being charged at the establishment on the night of the program, or that the establishment was doing any greater level of business on the night the program was shown than at any other time. As acknowledged by plaintiff, there are “no egregious circumstanced noted” in this action. (Pl.’s MDJ (ECF No. 14-1) at 11.) Moreover, plaintiff has presented no evidence to the court suggesting that the defendant is a repeat broadcast piracy offender.[3]

In light of this record, the undersigned finds plaintiff’s argument in support of enhanced statutory damages to be unpersuasive and not supported by the weight of authority in this area. Accordingly, the undersigned will recommend that judgment be entered against the defaulted defendant, and that plaintiff be awarded $6,000 in statutory damages, with no award for enhanced statutory damages, pursuant to 47 U.S.C. § 605(e)(3)(C)(i & ii). See J & J Sports Productions Inc. v. Ocampo, Case No. 1:16-cv-0559 LJO JLT, 2016 WL 6246490, at *6 (E.D. Cal. Oct. 26, 2016) (“Because there is insufficient evidence to demonstrate the piracy was done for purposes of commercial or private gain, enhanced damages are not recommended.”); J & J Sports Productions, Inc. v. Bolano, Case No. 5:14-cv-3939-BLF, 2015 WL 4512322, at *4 (N.D. Cal. July 24, 2015) (“In sum, it is Plaintiff’s burden to establish willfulness and Plaintiff has offered no evidence nor conducted any analysis of the specific facts in this case on this point sufficient to warrant an award of enhanced damages. As such, Plaintiff has failed to demonstrate entitlement to enhanced damages and the Court declines to award such damages here.”); J & J Sports Productions, Inc. v. Lorenzana, Case No. 13-cv-5554 BLF (JCS), 2014 WL 3044566, at *4 (N.D. Cal. May 13, 2014) (“There is also insufficient evidence that Defendant displayed the Program for a `commercial advantage’ or for `financial gain,’ which is required for an award of enhanced damages.”).

Update December 19, 2016 – I made a public records request to Missouri’s Office of Athletics for a full copy of their written reasons in this appeal.  They had no such document to provide but their legal counsel provided the following information

I have spoken with Director Lueckenhoff and he provided me with the basic procedural information regarding his review.  Director Lueckenhoff advised that the video and audio of the match provided by the promoter of the event was reviewed (the video can be viewed @ www.youtube.com). Based upon the review, it was determined that there was no violation of prohibited conduct and, as such, it was also determined that the decision of the fight must be changed to a no contest

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Update December 1, 2016 – Today Tonya Evinger tweeted that her appeal succeeded and her bout was overturned to a no-contest.

evinger-tweet

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On November 18, 2016 dominant InvictaFC Bantamweight champion Tonya Evinger saw her nine fight win streak come to an end when she tapped to an armbar to challenger Yana Kunitskaya.

The ending was controversial, however, with referee Mike England apparently telling Evinger to adjust position shortly prior to the bout ending sequence.  Evinger was caught in an armbar and defended by stepping on her opponent’s face.  A technique that is 100% legal in professional MMA.  Shortly after adjusting from the referee’s instructions Evinger was caught deeper in the hold and tapped out.  The sequence can be viewed in the below video.

As reported by Marc Raimondi, Evinger was displeased with this sequence and lodged an appeal with the Missouri Office of Athletics who regulated the event.  The former champ noted that “We are def gonna protest that call and see what can be done to get a rematch immediately“.

There is no universal set of rules for appealing a disputed bout result in MMA.  The analysis must be conducted on a jurisdiction by jurisdiction basis.  So what does Evinger need to prove to succeed in Missouri?  Here is a brief legal breakdown:

Chapter 7 of Missouri’s MMA Rules sets out the following appellate rights:

Any party may contest the outcome of any bout within ten (10) days of the decision by writing all the facts and the basis for the complaint. The complaint must be forwarded to the office. If there appears to be a violation of these rules, the director or his/her designate shall investigate, and, if the claims seem to be substantial, hold a hearing and issue its findings and decision.

So step 1 is for Evinger to lodge her complaint in writing to MOA within the 10 day deadline.

Chapter 8 of Missouri’s MMA Rules set out the below fairly universal list of fouls.  Foul “S” being the only one the referee could possibly have in mind.

(1) Fouls. The following actions in a mixed martial arts bout or contest are defined as fouls: (A) Head butting;

(B) Eye gouging or openhand attacks to the eyes;

(C) Biting;

(D) Groin attacks of any kind;

(E) Pulling hair, ear or the nose;

(F) Palm heel strikes (using the heel of the palm of the hand to deliver a blow to the face); (

G) Fish hooking which is defined as grasping or pulling the inside of an opponent’s cheek or nose;

(H) Inserting any body part into any orifice or into any cut or laceration of an opponent;

(I) Obstruction of breathing through the mouth or nose;

(J) Small joint manipulation (e.g., twisting of fingers or toes);

(K) Striking the spine, the medulla and/or the back of the head;

(L) Elbow attacks to the head or the face of the opponent;

(M) Driving or spiking an opponent straight to the ring or fighting area floor on his head or neck from an upright and vertical position;

(N) Attacking fingers;

(O) Striking downward using the point of the elbow. Arcing elbow strikes are permitted;

(P) Throat attacks or strikes of any kind, including, without limitation grabbing, striking or obstructing the trachea;

(Q) Clawing, twisting or pinching the flesh;

(R) Grabbing the clavicle;

(S) Kicking, kneeing or stomping the head of an opponent who is down or not standing. For purposes of this section, a contestant is down when any part of his/her body, other than his/her feet, touch the floor or if he/she is hanging helplessly on or over the fighting area enclosure;

(T) Kicking to the kidney with the heel;

(U) Spiking an opponent to the canvas on their head or neck;

(V) Intentionally pushing, shoving, wrestling or throwing an opponent out of the ring or fighting area;

(W) Holding the shorts or glove of an opponent and/or intentionally grabbing anything the opponent is wearing;

(X) Spitting on an opponent, referee or any other person;

(Y) Engaging in any unsportsmanlike conduct that causes an injury to an opponent or poses a safety risk;

(Z) Grabbing or holding the ropes, cage or fighting area enclosure and/or hanging the limbs of the body over the rope during a bout or contest;

(AA) Using abusive language or illicit gestures in or near the fighting area;

(BB) Attacking an opponent who is under the care of the referee or during the break;

(CC) Attacking an opponent after the bell has sounded the end of the round or bout;

(DD) Flagrantly disregarding the instructions of the referee;

(EE) Escaping or leaving the fighting area during the course of the bout or contest;

(FF) Intentional evasion of contact with an opponent, intentionally not using best efforts, intentionally or consistently dropping the mouthpiece or faking an injury;

(GG) Interference from anyone working the corner or anyone leaving the corner area, including, throwing any object on or into the fighting area by a contestant’s corner staff; and

(HH) Throwing in the towel during competition.

However, as John McCarthy (influential drafter of the so-called ‘unified rules’) notes, stepping on an opponent’s head is not a foul.

bjm-screenshot

This leaves an appeal where a fighter was improperly told to change position based on referee error.  Evinger cannot be faulted for moving positions when instructed to do so as Chapter 4 of the OACs Rules mandates that “contestants shall at all times observe the directions and decisions of all officials” putting her in the unenviable position of committing a foul and arguably sanctionable offence if she did not comply with the order.

The next question is when can the OAC overturn the result of a bout on appeal?  This is where things become a little murkier.

Clearly they can change the ‘outcome of a bout‘ but I cannot find any rule the OAC uses setting out the circumstances  when they can do so. All the appellate rules reference is needing a “violation of these rules“.

The most common standards for changing the outcome of a bout across other jurisdictions are when the following occur:

1.  The Commission determines that there was collusion affecting the result of the contest or exhibition;

2.  The compilation of the scorecards of the judges discloses an error which shows that the decision was given to the wrong unarmed combatant; or

3.  As the result of an error in interpreting a provision of this chapter, the referee has rendered an incorrect decision.

Assuming the OAC is prepared to use these standards, there is a strong argument that number 3 is triggered with the referee erring in interpreting the rules.  The “violation of these rules” would be unwarranted referee instruction.

To be more specific Evinger can argue that Chapter 8 of the OAC’s rules were breached, with the referee being required to “understand Missouri laws and rules relating to the contest” and enforce those rules.  Further it can be argued that the referee is only allowed to “give an official warning” for “an unauthorized blow, strike or attack” or where she a fighter is “guilty of foul tactics” none of which occurred.

If this is accepted, and the OAC further accepts that this error led to the submission, a burden Evinger will have to meet, then she may enjoy the rare success of overturning the result of her bout.

After overseeing their first professional MMA contest after the sport was legalized in New York, the State’s athletic commission is coming under scrutiny for the suspensions they are handing out to fighters.

Two such suspensions were for missing weight with Thiago Alves suspended 3 months for missing weight and Kelvin Gastelum suspended for  6 months for missing weight and apparently no-showing at the weigh in.

The NYSAC is, however, well within their rights to hand out suspensions to fighters who miss weight under the newly minted regulations governing combative sports in New York.

Section 206.6 of New York’s Regulations allows the NYSAC to suspend the licence of anyone who “violates the rules, policies and directives” of the NYSAC.

While there is no regulation saying a fighter must make weight s.209.2 requires bout contracts to specify a “combatant’s contracted weight” and s. 209.3 allows suspension for fighters to who do not “carry out the terms and conditions of contracts to which they are parties.“.

Although it is not the norm in combat sports for fighters to be suspended for missing weight NYSAC does enjoy this authority.

From there the only relevant legal question is whether the NYSAC is exercising this power fairly or are they arbitrarily handing out punishments to MMA fighters?  The answers appears to be the former with the NYSAC publishing a bulletin in 2015 setting uniform penalties for missing weight. (ht Joe Seatter).

The bulletin reads as follows:

Suspension of Overweight Boxers

Professional boxers have an obligation, at the official weigh-in for a bout, to weigh in at or below the weight set forth in the bout contract. A boxer who fails to make weight violates his or her obligations under the bout contract, damages the boxer’s opponent and the sport of boxing, and does a disservice to him or herself. Pursuant to 19 NYCRR 214.10, “[i]n nontitle bouts, boxers overweight under the terms of the contract may be suspended after the match for such period as the commission may decide.” It is the sense of the Commission that boxers who weigh in over the contract weight should be suspended as follows:

1. For a first violation of the terms of the contract, ninety (90) days.

2. For a second violation of the terms of the contract, one hundred and eighty (180) days.

3. For a third violation of the terms of the contract, two hundred and seventy (270) days.

4. For a fourth or subsequent violation of the terms of the contract, a time period as determined by the Commission but no less than two hundred and seventy (270) days.

The suspension periods will apply to all boxers in nontitle bouts pursuant to 19 NYCRR 214.10, and to all boxers in title bouts pursuant to the Commission’s authority to act in the best interest of boxing.

The Commission reserves the right to take any additional disciplinary action it deems appropriate based on (a) whether the bout is cancelled as a result of one or both boxers weighing in over the contract weight, (b) the amount by which a boxer weighs in over the contract weight, or (c) any other aggravating factor. Additional disciplinary action may include, but is not limited to, suspension, revocation, and fine. Implemented by vote of the Commissioners on August 25, 2015.

This policy shall be effective immediately.

In 2015, after what was considered one of the worst stoppages in UFC history, the Brazilian MMA Commission (CABMAA) adopted a rule change allowing bouts to be changed to a no-contest in the case of self-evident error.  Today, as first reported by Guilherme Cruz, CABMMA used this power for a second time to change Francimar Barroso’s loss to Darren Stewart to a no-contest.

The referee officiating the bout failed to notice a head-butt to Barroso that led to a bout ending sequence.  CABMMA has instant replay available in such circumstances but according to CABMAA the referee failed to properly use this tool.  In finding this omission was a self evident error and overturning the bout’s result to a no-contest CABMAA released the following reasons which appear to be a little legally thin if this tweet from John Morgan is accurate:

john-morgan-tweet

After receiving Francimar Barroso ́s formal appeal on November 19, 2016, the Brazilian Athletic Commission (CABMMA) has done a detailed analysis of the newly implemented “Instant Replay” guideline as a tool to insure fairness in the match and a proper outcome at the conclusion of the fight.

Due to the complexities involved in the sport of MMA, the referee may only use “Instant Replay” when he/she feels that a “Fight Ending Sequence” was possibly caused by an illegal action (foul) whether intentional or unintentional. At such time, the referee and only the referee may call for a review of the last moments of the fight. Once reviewing the replay, the referee, with or without the help of the other assigned referees of the event, can either confirm or dispel whether the foul was committed that brought about the fight ending sequence and take the appropriate actions from there.

If a referee utilizes “Instant Replay”, the information obtained from the replay cannot be used to restart the fight as the fight is officially over and may not be resumed.

The sole purpose of “Instant Replay” in MMA is to allow the referee to make a correct call on the outcome of the fight in calling:

a. A winner of the match

b. Having the fight go to the judge’s scorecards for a Technical Decision

c. Is the fight going to be a “No Contest”?

d. Disqualification

Below are the facts, related to the case, seeing the replay from the referee ́s perspective:

(i) The contact seen from that angle and the speed in which occurred was interpreted as part of a moving in attempt to clinch the opponent.

(ii) The referee did not identify it as head butt and told the fighter to continue on fighting.

(iii) As they were clinched on the fence, the referee told again the fighter not to stop, either to defend or to continue on fighting.

(iv) The fighter had plenty of time to defend himself or fight, as he continued on signaling to the referee the possible illegal blow, but chose not to do so.

(v) The fighter wanted to use that possible illegal blow to stop the moment as he was being pressured to the cage.

(vi) The fighter was taken down, ground and pounded, and the match was brought to an end.

Below are the facts, related to the case, seeing the replay from the Commission ́s/Regulator perspective:

(i) The contact of the head to any part of the body, when not in a push but rather in a clash movement, can be considered a head butt.

(ii) The intensity of the blow cannot be measured, even when bruises, cuts or fractures are not identified.

(iii) The fighter signaled to the referee the possible illegal blow.

(iv) The fighter stopped his action, fighting and/or defending, due to the possible illegal blow.

(v) The fight ending sequence started due to the possible illegal blow.

Conclusion:

(i) The referee would have acted differently and asked for time out if he had seen the incident from a better position/angle in the cage, even if not entirely sure of what caused it, since it was being signaled to him by the fighter.

(ii) After the time out, and normal/event replay shown on the big screen and referee identifying it as a contact of head to face, would have given a strong warning to the opponent, advising him to be more careful with clinching attempts using ‘‘head in’’ first movements/contacts. If not identified as it, but rather a normal blow (elbow, punch) and understood that the athlete was trying to misguide the referee to break that moment, the referee would have called the result as a TKO or desistance, since it was the fighter that signaled to the referee to interrupt the moment. But for this case, it should be considered as an unintentional foul.

(iii) The incident did have an effect of the outcome of the fight since it was part of what ended the fight.

Consequently, after reviewing the case, the Executive Committee has understood that the sole purpose of the “Instant Replay” was not properly achieved, therefore decided to overturn the result of Barroso vs.Stewart bout and is officially determining it a NO CONTEST.

While reasons for judgement reveal litigation strategies when Joe Hand Promotions sues commercial establishments for UFC pay per view piracy details of cases that settle out of court are rarely revealed.  Recent reasons for judgement, however, detail a settlement agreement Joe Hand Promotions accepted after a Defendant defaulted on payments.

In the recent case (Joe Hand Promotions, Inc. v. Alzaghari) the Defendant displayed a Pay Per View program in their commercial establishment without paying the commercial sub licencing fee.  They were sued for damages but prior to trial the parties reached a settlement for $5,000 to be paid in installments with an agreement that the amount would increase in the event of default.  The Defendant failed to make the agreed payments and the Plaintiff succeeded in securing judgement for $13,000.  In doing so District Judge Graham Mullen provided the following reasons:

1. That the Defendants and Plaintiff were represented by counsel during the mediation that took place on July 18, 2016.

2. That a settlement agreement was executed and entered into by both Defendants’ and Plaintiff’s counsel on behalf of their respective clients.

3. That a true and correct copy of the agreement was attached as Exhibit A to the Plaintiff’s motion to enforce mediated settlement agreement [DE30].

4. That the terms of the agreement called for $5,000 in payments to be made in the following manner:

a. $1,000 payment from Defendant to Plaintiff by August 8, 2016;

b. $1,000 payment from Defendant to Plaintiff, by August 29, 2016; and

c. $3,000 payment from Defendant to Plaintiff by January 18, 2016.

5. That the terms of the agreement called for a confession of judgment in the amount of $13,000 to be executed by the Defendants in favor of the Plaintiff in case of any default in the payments by the Defendant.

6. That the first two payments were not made by the Defendants to the Plaintiff as set out above.

7. That a $13,000 confession of judgment was not executed by the Defendants as agreed to in the settlement agreement.

The Court makes the following conclusions of law:

1. That the agreement attached as Exhibit A to the Plaintiff’s motion to enforce mediated settlement agreement is valid and enforceable against the Defendants.

2. That the Defendant has defaulted in their obligations to pay as agreed above and to execute a $13,000 confession of judgment in favor of the Plaintiff.

IT IS ORDERED:

1. That the Plaintiff’s motion to enforce settlement agreement is GRANTED.

2. That the Court will entered a judgment in the instant case for $13,000 in favor of the Plaintiff and against all defendants, jointly and severally, as a result of the default.

An article was published in the latest edition of the South African Journal of Sports Medicine levying criticism at professional boxing’s lack of standardized protocols for athletes to return to training/competition after suffering concussive injury.

The article, authored by Dr. Sethi from the Department of Neurology, New York Presbyterian Hospital is titled “Post-concussion return to boxing protocol” and can be found here.

Dr. Sethi fairly points out that

Immediately following a concussion, an athlete is usually advised physical and cognitive rest until post-concussion symptoms abate. The athlete then enters a stepwise return-to-play protocol. Premature return to play risks a second concussion, second impact syndrome, exacerbation and persistence of post-concussive symptoms. Various sports governing organisations such as the National Football League have developed postconcussion return to play protocols”

After noting professional boxing lacks a standardized protocol for return to sport following concussion Dr. Sethi proposes the following criteria to be adopted:

The following post-concussion return to boxing protocol is proposed based on evidence from other sports and clinical acumen:

Once the boxer is symptom free for at least 24 hours and a release has been signed by the treating physician, he/she can begin a graded return to boxing as detailed below.

Day 1: Light aerobic activity (walking or stationary bike for 10 minutes, no resistance training)

Day 2: Sport-specific activity (jumping rope, shadow boxing)

Day 3: Non-contact training drills (Skill drills-pad work, speed bag, heavy bag)

Day 4: Full-contact practice (sparring with head gear)

Day 5: Return to boxing (return to competitive boxing occurs when the period of mandatory medical suspension has expired)

Each of the above steps should take 24 hours so that a boxer would take approximately one week to progress through the full post-concussion protocol once they are asymptomatic at rest. If any post- concussion symptoms occur while in the stepwise return to boxing programme, then the boxer should be instructed to return to the previous asymptomatic level and try to progress again after a further 24-hour period of rest has passed.

Update following a public apology Nelson’s suspension was reduced to 6 months

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At UFC Fight Night 95 Roy Nelson unceremoniously kicked referee John McCarthy after a perceived late stoppage.  This upset the heavyweight who believes he had to then inflict unnecessary damage on his opponent.

Brazil’s Superior Justice Court of Sport reviewed the matter and have now handed Nelson a $24,000 fine and a 9 month suspension.

As first reported by MMAFighting’s Guilherme Cruz

The maximum penalty, according to the STJDMMA, would be a 25-month suspension and $40,000 fine. However, the court informed MMA Fighting on Wednesday that STJDMMA president Marcelo Sedlmayer Jorge had decided to hand Nelson a nine-month suspension, retroactive to Sept. 29, as well as a $24,000 fine.

According to the STJDMMA, Nelson mentioned in his defense that he was afraid due to some pre-fight situations, including the way Brazilian MMA fans behaved at the weigh-ins. The STJDMMA also said that Nelson mentioned his complicated relationship with McCarthy, but stated that he never intended to hurt the referee.

The STJDMMA accepted Nelson’s explanation, but said that it wouldn’t be enough to avoid punishment, because “the athlete has an obligation to respect the honor, preserve the health, and physical and moral integrity of the referee,” and nothing justified Nelson’s actions.

Jorge initially considered handing Nelson a one-year suspension with $33,000 fine. However, based on Nelson’s history, and the fact that he didn’t intend to hurt McCarthy, the STJDMMA reduced his punishment to a nine-month suspension and $24,000 fine.

Nelson still has a chance to return before June 29 though. The STJDMMA is offering the heavyweight a chance to reduce his punishment to a six-month suspension and $13,700 fine if the UFC allows him to formally apologize to McCarthy inside the Octagon or during some form of press conference, preferably if McCarthy is attending, before Dec. 31. If he does that, Nelson would be free to compete after March 29.

CTE Brain Image.PNG(Image via this PBS article)

A worthwhile study was recently published in the Journal of Vascular and Interventional Neurology discussing what is known and not known about CTE in athletes competing in contact sports.

In the study, titled “Chronic Traumatic Encephalopathy in Athletes Involved with High-Impact Sports” the authors reviewed major clinical studies identifying CTE cases in athletes looking for conclusions and shortcomings in the data.

Among the conclusions drawn are that, of known athletes with CTE, professional boxers demonstrated the most debilitating symptoms.  Also of note the authors suggest that strengthening neck muscles (a topic previously canvassed here) can help minimize the risks of CTE for contact sports athletes.

The study is worth reading in full and can be accessed here.

In addressing the increased symptoms in boxers vs football players and discussing possible strategies to reduce risk the authors note as follows:

Clinical and pathological features of CTE can manifest differently between sports, as rTBI exposure and mechanisms of impact can vary considerably. In fact, an analysis of previously reported CTE cases by Montenigro et al. [29] showed a vast difference in clinical presentation. 83% (5/6) of professional boxers, who had more debilitating motor impairments, compared to 18.8% (3/16) of professional football players. In addition, severe dentate neurofibrillary tangles were present in 17% (2/12) and 80% (4/5) of professional football players and boxers, respectively, indicating a more pernicious progression in boxers [29]. The difference in symptoms and neuropathology may be explained through the frequency of linear and rotational impact forces that occur in both sports.

Rotational forces causing angular accelerations are frequent in boxing. Boxers face their greatest danger when their opponent lands a hook punch, where impact near the lateral side of the head cause rapid outward rotation of the skull and twisting forces the brain [29]. Lateral bending of the neck can also occur, but linear forces from a punch are often below the mTBI threshold [58]. The rotational movement of the brain causes shearing forces that can lead to axonal damage [59]. Shearing forces are most prominent near areas such as the midbrain section, where glial and axonal injury could result in severely debilitating consequences [29,58].

As opposed to punches, helmet-to-helmet or helmet-to-ground contact forces cause the majority of mTBI injuries in professional football players. Viano et al. [58] have shown that in professional football concussions, inertial forces can be up to 30% greater than inertial forces in professional boxers who endure a hook punch. The greater inertial forces correlate with a higher linear acceleration endured by football players, suggesting that linear forces are prominent in causing concussive and subconcussive impacts in professional football players. In support of this mechanism, brain modeling shows that rotational accelerations from uppercuts or hook punches are much greater than rotational accelerations in professional football helmet-to-helmet impacts [58]. The linear to rotational force ratio difference between boxers and football players could explain the differences in clinical presentation between the two sports.

In professional football, helmet-to-helmet collisions can cause the head to move in the anterior or posterior direction. The incidence rates of mTBI have been shown to vary depending on position, with running backs and wide receivers suffering from mTBI more than linemen [60]. Neck musculature acts to stabilize the position of the head, and a more developed musculature is directly correlated to lowered mTBI risk [61]. Linemen have been found to have stronger necks and larger girth compared to running backs, which could act to slow linear accelerations of the head and reduce risk of mTBI [62]. The differences in neck strength between positions may explain the varying incidence rates of mTBI. Additionally, it should be noted that different player positions may be more prone to certain types of impacts—linemen may experience more frequent subconcussive helmet-to-helmet impact, while wide receivers could endure more threatening forces while being tackled. The pathological repercussions of variations in impact type and frequency between boxing and football have yet to be elucidated in full detail, but they may partially explain the difference in clinical presentation between different types of athletes.