Archive for December, 2016

ellenberger-photo

Earlier this month Jake Ellenberger lost a bout in a bizarre fashion.  While competing on the UFC TUF 24 finale Ellenberger slipped and his left foot wedged between the mat and the bottom fence..  His opponent proceeded to (legally) reign down strikes until referee Herb Dean called timeout.  He inquired if this could be considered an equipment failure, and when told the answer was no called a TKO ending to the bout.

Ellenberger appealed raising several compelling points including questioning the propriety of the referee retroactively calling the bout a TKO stoppage after initially calling a timeout.

Unfortunately for Ellenberger, and in another example of the very restrictive circumstances in which appeals can succeed, the Nevada Athletic Commission dismissed the appeal noting no error in interpreting the rules took place in the bizarre set of facts leading to the end of the bout.

In dismissing the appeal Executive Director Bob Bennett concluded “there is no provision in NAC 467 that prevents referees from calling a timeout to consult with other officials prior to rendering a decision.”  In justifying the outcome despite other occasions where equipment failure/interference led to a timeout and restarting the bout Bennett noted “NAC 467 does not include a provision that requires the continuation of contests in such circumstances.  Alleged precedent does not provide grounds for a change of a referee’s decision“.

I have obtained a copy of Bennett’s full reasons dismissing the appeal and these can be accessed here for anyone interested.

NAC-Letter-to-Ellenberger-Re-Appeal

 

This week it was announced that UFC heavyweight Josh failed an out-of-competition drug test administered by USADA on December 9, 2016.

With this news Barnett may gain the unenviable distinction of earning the most doping failures in MMA history testing positive after UFC 34, then testing positive for Boldenone, Nandrolone and Fluoxymesterone after UFC 36 and lastly testing positive for Drostanolone in an Affliction bout in 2009.

So the question now is, if USADA proves this latest violation, can Barnett face steeper penalties due to his blemished past?  With the possibility of a lifetime ban for a third violation it is an important issue.

In short the answer is yes and no.  No to the fact that the past doping cannot be considered a past policy violation.  Yes to the fact that his past may be considered an ‘aggravating’ circumstance.

Section 10.7 of the UFC/USADA custom tailored anti doping policy deals with multiple doping infractions and calls for steeper penalties for subsequent “Anti-Doping Policy Violations”.  In other words, past violations have to be part of the UFC/USADA scheme to trigger steeper penalties.  Barnett’s do not.  The specific language is as follows:

10.7.1 For an Athlete or other Person’s second Anti-Doping Policy Violation, the period of Ineligibility shall be the greater of:

(a) six months;

(b) one-half of the period of Ineligibility imposed for the first Anti-Doping Policy Violation without taking into account any reduction under Article 10.6; or

(c) twice the period of Ineligibility otherwise applicable to the second Anti-Doping Policy Violation treated as if it were a first violation, without taking into account any reduction under Article 10.6.

The period of Ineligibility established above may then be further reduced by the application of Article 10.6.

10.7.2 A third Anti-Doping Policy Violation will result in a period of Ineligibility of a minimum of double the period of Ineligibility which would apply if it were a second violation up to lifetime Ineligibility.

10.7.3 An Anti-Doping Policy Violation for which an Athlete or other Person has established No Fault or Negligence shall not be considered a prior violation for purposes of this Article

In case the above leaves any doubt section 10.7.4 dispels these expressly stating as follows

an Anti-Doping Policy Violation will only be considered a second violation if USADA can establish that the Athlete or other Person committed the second Anti-Doping Policy Violation after the Athlete or other Person received notice pursuant to Article 7, or after USADA made reasonable efforts to give notice of the first Anti-Doping Policy Violation

The only way Barnett’s past can come to haunt him is if USADA considers it to meet the definition of “aggravating circumstances” under the policy.  If these exist “The period of Ineligibility may be increased up to an additional two years“.

These are defined as follows:

Aggravating Circumstances exist where the Anti-Doping Policy Violation was intentional, the Anti-Doping Policy Violation had significant potential to enhance an Athlete’s Bout performance, and one of the following additional factors is present: the Athlete’s or other Person committed the Anti-Doping Policy Violation as part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit an Anti-Doping Policy Violation; the Athlete or other Person Used or Possessed multiple Prohibited Substances or Prohibited Methods or Used or Possessed a Prohibited Substance or Prohibited Method on multiple occasions; the Athlete or Person engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an Anti-Doping Policy Violation.

Depending on the results of the test an argument can be made that aggravating circumstances exist for a repeat PED using athlete even if past use fell outside of the policy timeframe.

It is unlikely, however, that his can apply to an out-of-competition test as the substance has to have a “significant potential to enhance an Athlete’s Bout performance” and with no bout having taken place this section arguably is not triggered.

Judicial Review is the legal tool available to fighters who feel wronged by the actions of an Athletic Commission.

Conor McGregor, who after a press conference incident was fined $75,000, ordered to produce a a video with a “minimum value” of $75,000 containing an anti-bullying or anti-drug message, conduct 50 hours of community service with an anti-bullying or anti-drug message and pay legal fees to the Nevada Athletic Commission of $4,288.12 is one fighter who feels wronged.

McGregor has filed a petition for judicial review.  In the petition McGregor argues that the NAC’s order “violates constitutional or statutory provisions; is in excess of the statutory authority of the agency, was made upon unlawful procedure, was affected by other error of law, was clearly erroneous in view of the reliable, probative and substantial evidence on the whole of the record or was arbitrary or capricious or characterized by abuse of discretion

I have obtained a copy of McGregor’s petition and it can be accessed here for anyone interested – mcgregor-nac-petition-for-judicial-review

 

Update December 22, 2016Cyborg has now published a full statement admitting the substance in question is Spironolactone, a diuretic and masking agent that is prohibited at all times (ie both and and out of competition) by the UFC/USADA anti doping policy.

Cyborg admitted that she has been on this drug since September 26, 2016.  She has apparently not applied for a Therapuetic Use Exemption prior to testing positive.  Given her admission that she has been on the drug since September it is hard to imagine how she has exercised any reasonable level of diligence.

Cyborg claims that her doctor “is experienced with USADA testing and informed me there were no additional steps needed for approval with the associated treatments”.

This is not an excuse that will carry any weight.  USADA will be quick to remind her that it is her job to be familiar with which substances are prohibited and seeking legal advice from a doctor is not a reasonable excuse.

Lastly Cyborg states she “already started the process of applying for a retroactive therapeutic use exemption”.  As stated below USADA can indeed grant a retroactive TUE.  To be granted a TUE in the first place she will need to meet the following test:

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.

If Cyborg produces medical evidence to meet the above test her burden is not yet over.  While section 4.4.4 of the UFC/USADA Anti-Doping Policy allows for retroactive TUE’s it is not a rubber stamp process. According to USADA’s website

An application for a TUE will only be considered for retroactive approval where:

a. Emergency treatment or treatment of an acute medical condition was necessary; or

b. Due to other exceptional circumstances, there was insufficient time or opportunity for the Athlete to submit, or for the TUEC to consider, an application for the TUE prior to Sample collection; or

c. It is agreed, by WADA and by the Anti-Doping Organization to whom the application for a retroactive TUE is or would be made, that fairness requires the grant of a retroactive TUE.

Her only hope rests on ground “c” that “fairness requires” it.  Even if all the above tests can be met Cyborg will still be in hot water for failing to disclose her use of this substance when the doping control officer came to collect her sample (as evidenced by her excuse blaming her doctor for saying ‘no additional steps’ were needed).

Bottom line – its a very safe bet Cyborg will be facing suspension when all the dust settles.

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Today the UFC announced Cris “Cyborg” Justino has been notified of a potential anti doping violation stemming from an out of competition test.

The promotion published the following bare bones press release:

The UFC organization was formally notified today that the U.S. Anti-Doping Agency (USADA) has informed Cristiane “Cyborg” Justino of a potential Anti-Doping Policy violation stemming from an out-of-competition sample collection on December 5, 2016.

USADA, the independent administrator of the UFC Anti-Doping Policy, will handle the results management and appropriate adjudication of this case. It is important to note that, under the UFC Anti-Doping Policy, there is a full fair legal review process that is afforded to all athletes before any sanctions are imposed.

Consistent with all previous potential anti-doping violations, additional information or UFC statements will be provided at the appropriate time as the process moves forward.

Cyborg’s camp was quick to reply suggesting she is on prescription medication treating harmful effects from her last rapid extreme weight cut.

It is worth noting that if this is actually the case USADA does have the discretion to grant retroactive ‘therapeutic use exemptions’ under the UFC’s anti doping policy.  There are too few facts publicly available right now to predict exactly how this will shape out.

In August 2016 members of the Association of Boxing Commissions overwhelmingly voted in support to amend MMA’s so called ‘unified rules’. The ABC aimed for a timeline for the new rules to come into force on January 1, 2017.

While the consensus for change was near unanimous the vote itself was not binding on any individual member and the process to update the Rules varies from jurisdiction to jurisdiction.  In other words, on January 1, 2017 many commissions will have adopted the new rules but they will not be ‘unified’ across the board.

California is one of the first jurisdictions to update their rules in compliance with the ABC vote.  In this video MMA Rules pioneer John McCarthy explains exactly what these changes entail.

Adding to this site’s archived combat sports safety studies a recent study was published in the British Journal of Sports Medicine addressing head injury rates in high level karate competitions.

In the study, titled “Low Risk of Concussions in Top Level Karate Competitions” the authors reviewed injuries that took place in 4 consecutive karate world championships.  They found there was only “1 concussion in every 1156 fights, or 0.43/1000 athlete-exposures“.

The full article can be purchased here.  The abstract reads as follows:

Background Although it is well known that injuries occur in combat sports, the true incidence of concussions is not clearly defined in the literature for karate competition

Aim To determine the incidence of concussions in top-level (World Karate Federation World Championships) karate competition.

Methods Injuries that took place in 4 consecutive World Karate Championships (from 2008 to 2014) were prospectively registered. A total of 4625 fights (2916 in the male category and 1709 in the female category) were scrutinised, and concussions were identified and analysed separately for frequency (rate per fight) and injury risk.

Results A total of 4 concussions were diagnosed by the attending physicians after carrying out athlete examinations. Globally, there was 1 concussion in every 1156 fights, or 0.43/1000 athlete-exposures (AE). In male athletes, the rate of concussion was 1/5832 min of fighting, and in female athletes, it was 1/6836 min. OR for concussion in women is 0.57 (95% CI 0.06 to 5.47; z=0.489; p=0.6249) and risk ratio for concussions in men is RR 1.478 (95% CI 0.271 to 8.072), p=0.528, representing a higher risk of definite concussions in men than in women, but not statistically significant. There is not a significantly higher risk of concussions in team competition (no weight limit) when compared with individual competition (held with strict weight limits for each category).

Conclusion The risk of concussions in top-level karate competition is low, with a tendency for an increased risk for men and for competition without weight limits, but not statistically significant with respect to women or individual competition.

Update January 19, 2017 – Today I confirmed with Nova Scotia’s Registrar of Regulations that the regulations referenced in the below article are indeed current and in force.  They replied as follows

 Hello Mr Magraken,

The regulations on our website are current consolidations of all the regulations filed with our office.  Any amendments filed with our office that are not consolidated would be noted in the Regulations by Act listing of the regulations as well as on the regulations document itself.  Amendments are incorporated into the consolidated version within 2 weeks of filing with our office.

We have no recent amendments on file for these regulations.

We hope this information has been helpful to you.  Please contact us again if you require assistance with Nova Scotia’s regulations.

UFC Halifax Promo Screenshot.PNG

The UFC returns to Halifax, Nova Scotia on February 19, 2017.

Something the main event fighters may not know is how much they should be able to demand for headlining this card.  Perhaps $380,000, maybe even more.

Unlike most North American jurisdictions, Nova Scotia has a unique legislative requirement on the books for prize fighters.   Section 58 of Nova Scotia’s Boxing Authority Regulations (which apply to MMA bouts by virtue of the definition of boxing set out in s. 2(3) of the Regulations which states that “a combat sport is boxing.) require that “The minimum percentage of the receipts to be paid to boxers in the main boxing match shall be not less than 10% for each boxer“.

The last time the UFC came to Halifax the live gate receipts flirted close to $1,000,000.  Assuming a repeat this would mean a minimum purse of $100k per fighter to comply with the law.

The language of section 58, however, does not appear limited to the live gate. The Regulation uses the broad word ‘receipts.’. The Nova Scotia Boxing Authority Act defines “gross gate receipts” to include “all money collected in respect of a boxing match including all television and film royalties“.  In other words, the fighters may be able to legally demand 10% of all the the UFC’s revenues pro-rated to this event.

With the UFC Fox deal being reportedly worth $115 million annually and with Fox televising 41 events in 2016 means a pro-rated value of $2.8 million per event.  10% of this is $280,000 and when added to the speculated gate you reach $380,000 for each headliner.  Other revenue streams can be factored in to bolster this potential number even higher.

What if the UFC don’t comply with this section?  What recourse would fighters have?  They would be able to ask the Nova Scotia Boxing Authority to force compliance.

Section 9 the Boxing Authority Act requires the Authority to “establish and enforce uniform rules for the conduct of boxing” ie – enforce their regulations.

If they are not prepared to (and unfortunately the Authority have turned a blind eye to their regulations in the past to accommodate the UFC) fighters can seek a judicial remedy.

Some have asked me if this means going to Court in Nevada. As the UFC class action plaintiff’s learned UFC contracts contain a ‘choice of venue‘ clause for all lawsuits involving the interpretation of the contracts.  Interestingly this likely would not apply, however, as such a lawsuit would not be a contractual dispute rather an action based on enforcing a local statutory requirement.  In other words, the 10 percent protection applies regardless of what a UFC contract has to say.

A lawsuit using the power of s. 58 can be quite revealing as, if successful, it would force the UFC open their books and account for all revenue streams pro-rated to the event.  Time will tell if fighters will take advantage of this powerful legal protection.

Earlier this week the Nevada State Athletic Commission accepted settlement agreements for Nate Diaz, Jon Jones and Brock Lesnar.

Diaz was issued a $50,000 fine (2.5% of his purse) and given 50 hours of community service for throwing a water bottle at Conor McGregor at a pre-fight press conference.

Jon Jones received a one year suspension (which coincided with his USADA suspension) for failing an out-of-competition drug trust prior to UFC 200.

Brock Lesnar was handed a $250,000 fine (10% of his purse) and suspended for one year for failing both an in and an out-of-competition test for UFC 200 (where he was controversially given a waiver of the normal 4 month anti-doping period for returning athletes by the UFC).

I have obtained a full copy of these settlement agreements via Public Records request with the NAC.  For anyone interested here are the documents in full

Diaz, Jones and Lesnar NAC Settlement Agreements

Update December 14, 2016 – Today I spoke with Andy Foster, Executive Director of the CSAC, who advised that the CSAC is not requiring C3 testing as part of the formal licencing application, however they will be conducting a number of tests over the next year and studying the data.

He confirms that the CSAC will bear the expense of these tests.

The legal basis to compel licence holders to undergo C3 testing lies in s. 18710 of California’s Business and Professions Code which reads as follows

In its discretion, the commission may order a special medical examination to be undertaken by any licensee, the report of which shall be made to the commission. The cost of the examination shall be shared equally by the commission and the licensee.

and arguably s. 18711(iii) which states “The commission may require an athlete or contestant licensed under this chapter to undergo additional neurological tests where, based on the totality of the athlete’s or contestant’s records, it appears the athlete or contestant may be at risk of cognitive impairment.

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Earlier this year the Nevada State Athletic Commission adopted the Cleveland Clinic’s C3 test as part of the fighter licensing and re-licencing application.

As explained by the NAC in a statement earlier provided to me “The C-3 Test is a neurological function assessment designed to gather information about a fighter’s balance, reaction times, hand-eye coordination and dynamic visual acuity.  The total time to take the C-3 Test is between 15-30 minutes.  Each applicant must present themselves to the Cleveland Clinic for testing prior to submitting their application for a license.  This test will be implemented officially in the upcoming months.”

This past week the California State Athletic Commission’s agenda notes the commission was discussing the C-3 test and, as reported at mixedmartialarts.com, the CSAC has apparently agreed to also adopt the C-3 test.

I have reached out to the CSAC for a copy of any specific rule change adopting this requirement and for comment about their views of why adopting this change was a step in the right direction.  I will update this post once they reply.

The below brief video is a useful quick introduction to the benefits of C-3 testing

Although there is only one definitively diagnosed case of CTE in MMA there are many suspected cases (which can only be certainly diagnosed with brain autopsy upon death).

Today, Dr. Ann McKee, a neurologist and Director of the CTE Center at the Boston University School of Medicine gave sobering testimony to Congressional Subcommittee on Commerce, Manufacturing, and Trade om the reality of the disease’s link to MMA (along with other contact sports).

The testimony arose in the context of studying the Muhammad Ali Expansion Act (legislation that is more concerned with disparity of power between promoters and fighters than safety).  In any event the subcommittee wished to hear about safety aspects and this and Dr. McKee’s testimony provided the following highlights reminding fighters and trainers that this is a disease of ‘mileage’.

In sports like MMA, the risk for CTE is not directly related to the number of concussions – rather the risk for CTE is related to the cumulative exposure to subconcussions that occur with every blow to the head. The longer you play contact sports, the higher your exposure to repetitive head impacts, and the higher the risk for CTE. Starting a contact sport at a young age often leads to a longer playing career and greater exposure to head trauma, but another factor that contributes to enhanced risk for young athletes is that the developing brain is more susceptible to damage from repetitive head trauma.

The other misinformation about CTE is that it is very rare, because it has only been diagnosed in a few hundred people and there are millions of people who have played contact sports. But CTE is not rare, we would not be able to find 218 cases of CTE in 291 athletes ranging in age from 18 to 98 years over the past 8 years if it were rare. If you don’t look for something, don’t know how to look for something, and don’t find it that does not mean that that something is rare; it means it is under recognized. You have to know how to look for CTE in order to find it. We have found CTE in 75% of brains of athletes donated to our brain bank, and while that does not represent the percentage of living athletes with CTE, it does indicate the disease is much more common than we previously thought. Recent brain bank studies looking for previously unrecognized CTE have found changes of CTE in 5% of the general autopsy population and in 1/3 of contact sport athletes in a neurodegenerative disease brain bank. 

If you were to ask me how we limit risk for CTE in MMA, I would say:

1. Don’t allow children and young adults to participate in full contact with head strikes

2. Educate fighters so they learn their greatest opportunity to limit exposure is to not allow head strikes in training and sparring exercises

3. Limit the number of head strikes in a match

4. Reduce the number of full-contact matches per season

CTE is a big problem for contact sports, and what we know today is very likely only the tip of the iceberg. While we recognize the importance of contact sports to an athlete’s physical and psychological well-being, CTE is a known and preventable consequence. There is great urgency for more funding for research on CTE and the risks for CTE associated with sports like MMA, football, boxing, and ice hockey, and military service. We need to dedicate significantly more resources to understanding and treating this preventable disease. We need to bring hope to the players and Veterans who are in the beginning stages of this disease and showing signs of memory loss, behavioral changes and depression. We need to develop effective interventions and treatments so that all individuals can continue to participate in the sports they love, but also live long, healthy, productive lives

You can find Dr.McKee’s full testimony here.