The Ellenberger Appeal – Legal Principles in Play


An unusual ending occurred between Jake Ellenberger and Jorge Masvidal during the UFC’s TUF 24 finale card which took place in Las Vegas on December 3, 2016.

Ellenberger slipped and his left foot wedged between the mat and the bottom fence..  Masvidal 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 on the basis that Ellenberger was not intelligently defending himself.

As reported by MMAMania Ellenberger promptly noted he will be appealing hoping to overturn the TKO stoppage to a no contest.

While it is extremely rare for an in-bout result to be overturned after the fact (with the exception of when positive PED results come into play) as was demonstrated by the recent Tonya Evenger saga, there are circumstances where a change of decision is appropriate.

So what standards will Ellenberger have to meet?

Having taken place in Las Vegas, the Nevada Athletic Commission rules will be in play.  Nevada’s regulations have an extremely limited set of circumstances that can apply.  NAC 467.770 governs changing a bout result and reads as follows:

Except as otherwise provided in subsection 6 of NAC 467.850, the Commission will not change a decision rendered at the end of any contest or exhibition unless:

     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.

Rules 1 and 2 are non-starters and clearly don’t come into play.  Ellenberger’s only hope will rest on rule 3 and he will have to argue that the referee rendered “an incorrect decision” through “an error in interpreting a provision” of the NAC’s MMA rules.

The bout ended by TKO.

NAC 467.7968 specifically allows a bout to end by “Technical knockout by the referee stopping the contest“.  The rules provided only the following circumstances of when a TKO occur

.  If a contest or exhibition is terminated because an unarmed combatant is:

     (a) Unable to continue;

     (b) Not honestly competing;

     (c) Injured; or

     (d) Disqualified,

it may be adjudged a technical knockout to the credit of the winner.

However, the regulations go on to note that “The provisions of this section do not apply to a contest or exhibition of mixed martial arts.”.  In other words, an MMA bout can be stopped by TKO but there is silence on when an MMA TKO stoppage takes place.

Ellenberger’s strongest argument could be that without a clear definition of when a TKO ending occurs in MMA such a result should not extend to this unique set of circumstances.  If this fails he can try to point to potential defects in the cage design.

The regulations require that

  • the floor of the fenced area must be padded with ensolite or another similar closed-cell foam, with at least a 1-inch layer of foam padding, with a top covering of canvas, duck or similar material tightly stretched and laced to the platform of the fenced area. Material that tends to gather in lumps or ridges must not be used.
  • There must not be any obstruction on any part of the fence surrounding the area in which the unarmed combatants are to be competing.
  • Fence posts must be made of metal, not more than 6 inches in diameter, extending from the floor of the building to between 5 and 7 feet above the floor of the fenced area, and must be properly padded in a manner approved by the Commission

If Ellenberger can find a flaw with the cage design such that it violates the above requirements, and then persuade the NAC that failing to take the faulty design into account insofar as it may have contributed the final sequence of events he may have a chance of success.  Barring that, and barring the NAC taking a restrictive approach on when TKO’s can occur in MMA, Ellenberger, like so many before him on the losing side of controversial endings, will likely be stuck with the in cage result.

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