Archive for April, 2017

Two months ago I discussed legal developments in Quebec with Montreal shutting down Brazilian Jiu Jitsu contests threatening participants and promoters with criminal charges for illegal ‘prize fights’.

The law  the police were threatening others with was never meant to apply to amateur grappling contests.  Several people, myself included, reached out to Senator Runciman, the man who drafted the recent revisions to the Criminal Code expanding the legal combative sports that would be allowed in Canada, for his views on this development. In a word the Senator says Montreal’s position is “inconceivable”.  Here is the Senator’s full letter –

Senator Runican Letter Screenshot

A decision was published recently by the World Intellectual Property Organization (“WIPO”) finding Group One Holdings Pte Ltd, the company that owns and operates One Championship, guilty of  “Reverse Domain Name Hijacking”.

In the recent case (Group One Holdings Pte Ltd . Steven Hafto) the respondent registerd the domain name onechampionship.com in October, 2006, many years before ONE Championsnip existed as an MMA promotion.

In 2016 ONE contacted the respondent and entered into negotiations to buy the domain name.  The negotiations did not succeed with ONE then issuing a formal complaint to  WIPO.  The complaint was swiftly dismissed with WIPO finding this was a classic case of reverse domain name hijacking.  In dismissing the complaint WIPO provided the following reasons:

The Respondent argues that the Complainant brought this case for commercial purposes without any legal right to the disputed domain name after failing in the marketplace to acquire the disputed domain name.

Paragraph 15(e) of the Rules provides that, if “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”. RDNH is defined under the Rules as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name”.

The Panel considers that the Complainant has been guilty of RDNH for the following reasons:

i. The Complainant has failed by a large margin. In the Panel’s opinion, the Complainant knew or at least should have known that it could not prove one of the essential UDRP elements. The Complainant’s representatives quoted extensively from UDRP case law and the Panel thinks it unlikely that they were unaware of the current overwhelming view of UDRP panelists as to the need to prove registration as well as use in bad faith.

ii. In the Panel’s view, this is a classic “Plan B” case, where the Complainant initially attempted to acquire the disputed domain name making no mention of the UDRP or any other legal rights. Then, having been frustrated in its negotiations to buy the disputed domain name, it resorted to the ultimate option of a highly contrived and artificial claim not supported by any facts or the plain wording of the UDRP. This stratagem has been described in many UDRP cases as “a highly improper purpose” and it has contributed to findings of RDNH. See, e.g., Patricks Universal Export Pty Ltd. v. David Greenblatt, WIPO Case No. D2016-0653 and BERNINA International AG v. Domain Administrator, Name Administration Inc. (BVI), WIPO Case No. D2016-1811.

For the foregoing reasons, the Complaint is denied and the Panel finds that the Complainant has been guilty of Reverse Domain Name Hijacking.

h/t to Twitter’s @GlobeSvcs for link to decision

 

MMA Isiders Logo

Last week I had the pleasure of appearing on Jason Floyd’s The MMA Insiders Podcast where we discussed many legal topics in the MMA landscape.  The full interview can be found here.

For those visiting for the first time, welcome!  For more information on some of the topics canvassed here are some quick links for your convenience –

 

An interesting study was published recently in the Journal of Vascular and Interventional Neurology reviewing published literature involving CTE in athletes looking for an explanation for the variation in clinical presentation between athletes of different sports.

The full study,  titled Chronic Traumatic Encephalopathy in Athletes Involved with Highimpact Sports, can be found here.

Two combat sports worthy topics were addressed.  First the authors discussed the worse symptoms of CTE in boxers vs other athletes such as football players.  The authors hypothesize that the clinical presentation in boxers may be more profound due to the rotational forces associated with hook punches as opposed to the linear forces from straight on collisions.  Second the authors repeat the advice that a strong neck is a useful asset in reducing risk for head trauma for athletes.

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-toground 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-tohelmet 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.

Adding to this site’s archived combat sports safety studies a recent study was published in the Journal of Athletic Training analyzing peer-reviewed publications looking to draw conclusions about the utility of head impact measuring devices in diagnosing concussion.

In short the authors noted these devices are poor for determining concussion concluding as follows:

Measurements collected by impact monitors provided real-time data to estimate player exposure but did not have the requisite sensitivity to concussion. Proper interpretation of previously reported head-impact kinematics across age, sport, and position may inform future research and enable staff clinicians working on the sidelines to monitor athletes. However, head-impact–monitoring systems have limited clinical utility due to error rates, designs, and low specificity in predicting concussive injury.

The full study, titled Head-Impact–Measurement Devices: A Systematic Review, can be found here.

Adding to this site’s archived posts addressing combat sports piracy, reasons for judgement were released recently by the US District Court W.D. Kentucky, Paducah Division, awarding $2,200 in damages for the commercial piracy of UFC 165

In the recent case (Joe Hand Promotions, Inc. v. Dick) the Defendants displayed UFC 165 in a bar without paying the commercial sub-licensing fees to the Plaintiff.  The cost would have been approximately $1,100.  The Plaintiff obtained default judgement.  The Court found appropriate damages would be double the cost of the licence plus legal fees.  In finding this to be a sensible assessment of damages Senior District Judge Thomas Russell provided the following reasons:

Unsurprisingly, there are many who wish to exhibit popular sports programming but remain unwilling to pay for the privilege. [Id., ¶ 4.] To make sure those businesses pay their fair share, Joe Hand Promotions dispatches investigators to local bars and restaurants on the nights of major showings, including the broadcast of the Ultimate Fighting Championship 165: Jon Jones v. Alexander Gustafsson, to catch “signal pirates” in the act. [Id., ¶¶ 5-6.]

Brandy Marie Dick is a managing member of The Neon Saddle LLC, which owns and operates The Neon Saddle, a bar located in Paducah, Kentucky. [R. 1 at 2, ¶¶ 7-8 (Complaint).] An investigator for Joe Hand Promotions, Shawna M. Spiller, visited The Neon Saddle on the night of September 21. [R. 11-4 at 1-2 (Spiller’s Affidavit).] Spiller estimated the capacity of The Neon Saddle to be around ninety people. [Id. at 2.] Inside the establishment, Spiller observed one of two televisions exhibiting the Ultimate Fighting Championship 165: Jon Jones v. Alexander Gustafsson. [Id. at 1.] The Neon Saddle, however, had not entered into a sublicensing agreement with Joe Hand Promotions to exhibit that program. [R. 11-2 at 3, ¶ 8.] Had Dick and The Neon Saddle paid for the right to exhibit that program, the cost would have been $1,100.00. [R. 11-3 at 1 (Rates).]

..

From the affidavit of Joe Hand, Jr., the President of Joe Hand Promotions, the Court is satisfied that the program was not “mistakenly, innocently, or accidentally intercepted.” [R. 11-2 at 3-4, ¶ 9; see also id. at 5, ¶ 13.] It seems apparent that the interception was for private financial gain too. [Id. at 5-6, ¶ 15.] Based on Joe Hand Promotions’ pricing structure, Dick and The Neon Saddle LLC ought to have paid Joe Hand Promotions around $1,100.00 for a sublicense to broadcast the program. [Id. at 3, ¶ 7; R. 11-3 at 1; R. 11-4 at 2.] Instead, Joe Hand Promotions spent $1572.50 to prosecute this action. [R. 11-1 at 1 (Riley’s Affidavit).]

Having carefully reviewed the record, the Court finds statutory damages in the amount of $2,200.00 to be appropriate and within the typical range awarded in this District. See Joe Hand Promotions, Inc. v. Hernandez, No. 3:14-CV-86-CRS, 2016 WL 502058, at *4 (W.D. Ky. Feb. 8, 2016) (awarding $1,000 for non-willful violation); Joe Hand Promotions, Inc. v. Young, No. 5:09-CV-157, 2010 WL 3341449, at *3-4 (W.D. Ky. Aug. 24, 2010) (awarding $4,800 for non-willful violation); Joe Hand Promotions, Inc. v. Williams, No. 3:07-CV-406-JDM, 2010 WL 341513, at *2-3 (W.D. Ky. Jan. 22, 2010) (awarding $1,000 for non-willful violation). An award of $1,572.50 to cover Joe Hand Promotions’ costs and attorney’s fees is reasonable too. See 47 U.S.C. § 553(c)(2)(C). Therefore, the Court will enter judgment against Dick and The Neon Saddle LLC in the amount of $3,772.50.

UpdateToday the NYSAC released a statement defending the result noting “In New York State, it has been held that the Commission may review video evidence in order to meet its obligation to render correct determinations and act in the best interest of the sport“.  Where this policy is written and its parameters are unclear.

Further update – the above language likely refers to Frank v. Stevens, 52 A.D.3d 316 (N.Y. App. 2008) where the Appellate Division of the Supreme Court of the State of New York held that the Commission “retains the power and discretion to reverse a referee’s in-fight determination” and in doing so can review videotape evidence.

Whether the referee can utilize instant replay to overturn his own earlier decision is murkier given the language of the NYSAC’s regulations.  However, since video can be utilized on appeal Weidman’s chances of overturning the TKO loss are slim to none.

_______________________________________

The New York State Athletic Commission has faced a host of controversies from UFC 210 – From Daniel Cormier pulling a fast one during weigh ins to the commission’s flip flopping on the legality of breast implants the event had its share of regulatory issues.

The latest controversy involves Chris Weidman and the turn of events that led to his TKO loss to Gegard Mousasi.

Action was stopped after what referee Dan Miragliotta initially deemed to be an illegal knee to a grounded opponent.  Weidman was given time to recover from the apparent foul.  During this time Miragliotta changed his opinion as to the legality of the knee.  In doing so he apparently relied on either video replay or the opinions of other ringside officials. Weidman, upon medical examination, was deemed unfit to continue thus ending the bout with a TKO defeat.

As reported by MMAJunkie, Weidman has decided to appeal this outcome.

On the one hand the NYSAC can attempt to frame this as simply a run of the mill TKO based on medical advice following a legal strike.  Weidman, on the other hand, will frame this as an unjust outcome with a referee improperly relying on video replay to change his previous decision.  So what legal factors are in play?

The fight ending blow was delivered when Weidman had one hand on the mat.  While the old ‘unified rules’ of MMA used to define this as a grounded fighter New York is one of the many jurisdictions to adopt the ABC’s recommended rule changes to the definition of grounded fighter which now reads as follows 

A grounded fighter is defined as: Any part of the body, other than a single hand and soles of the feet touching the fighting area floor. To be grounded, both hands palm/fist down, and/or any other body part must be touching the fighting area floor.

Section 212.10(15) of the NYSAC’s regulations prohibits “Kneeing the head of a grounded opponent” but since the grounded fighter definition was not triggered no foul occurred.

The referee erroneously called a foul and stopped the action.  From here things get a little tricky.

In justifying the end result the NYSAC can rely on regulation 212.12(c) which reads as follows

If an injury sustained during competition as a result of a legal maneuver is severe enough that the referee or ringside physician terminates a bout, the injured contestant shall lose by technical knockout.

Weidman, on the other hand, will want the original call of a foul to stand triggering section 212.12(b) which stipulates that

If the referee determines that a contest or exhibition of professional mixed martial arts may not continue because of an injury suffered as the result of an accidental foul, the contest or exhibition shall be declared a no contest if the foul occurs during either of the following: (1) The first two rounds of a scheduled three-round contest or exhibition

The NYSAC’s rules do not expressly make provision for the use of video replay so to the extent that Miragliotta relied on video or other ringside officials to change his mind Weidman can argue there is fettered discretion.

There is no controversy in the bout being stopped on medical advice with Section 212.13 specifically giving the ringside physician authority to stop a contest with subsection (b) reading as follows:

The referee is the immediate arbiter of the contest. The referee and the ringside physician are the only individuals authorized to enter the ring or fenced area at any time during competition, and either shall be authorized to stop a contest at any time.

This is repeated in s. 208.6(b) which states ” The ringside physician may terminate any professional combative sport contest or exhibition at any time if, in the opinion of such physician, the health or well-being of any participant would be significantly jeopardized by continuation of the contest or exhibition.

The same section, however, can also prove problematic for the decision as the “referee is the immediate arbiter of the contest” and to the extent that the referee consulted with others Weidman can argue that he improperly fettered his discretion.

Section 206.14 provides appellate and due process rights to Weidman.  The section, however, is silent on what circumstances the NYSAC can overturn the result of the contest.

Section 212.1 appears to defer to the ABC’s ‘unified rules’ reading as follows

The authority to render final determinations based on the application and interpretation of the Unified Rules of Mixed Martial Arts for contests held within the State of New York shall be vested in the State Athletic Commission.

These unfortunately are also silent on appeal standards leaving a void.

The most common test for appeals in other jurisdictions, such as Nevada, restricts overturning of contests to the following scenarios –

  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 NYSAC is prepared to adopt this standard number 3 would be the only applicable factor meaning the appeal result will largely rest on the Referee’s actions.

If Miragliotta admits or the evidence otherwise establishes that he improperly delegated his discretion to video replay or others Weidman may have a chance of succeeding.  More likely, however is that the TKO defeat stands as the NYSAC will need to ensure the “final determination” on appeal is consistent with the ABC Unified Rules which it presently is even though Miragliotta took an unusual path to get there.

In other words, getting it right is more important than the route to get there.

Update – the NYSAC has now, fortunately, reversed this decision and Gonzalez has been cleared to fight

_______________________________________

As first reported by Marc Raimondi, the New York State Athletic Commission  pulled Pearl Gonzalez from her UFC 210 bout on Friday morning because she has breast implants.  This occurred after she officially weighed in.

While a prohibition on contestants with breast implants competing is not unique in combative sports regulation, the issue that arises is the NYSAC don’t appear to have such a prohibition on the books for MMA.

The NYSAC has published a “Medical Manual”which is a statement of policy which in part reads as follows –

Due to the concern over rupture, boxers who have breast implants are not eligible to box in New York. Boxers who have had breast reduction surgeries are eligible to box.

The problem is that this clearly applies to boxing, not MMA, and has not been updated since December 2014, a time before MMA was even legal in New York.  The document itself has the following capitalized title “MEDICAL STANDARDS FOR PROFESSIONAL BOXERS” referencing only boxing and not MMA.

The NYSAC’s “History and Physical Examination Record for a Combative Sport Professional” does not ask fighters about breast augmentation when applying for a licence.

Further complicating matters is that New York’s official MMA regulations, which were drafted recently and apply to this event, appear to be completely silent on the issue of the legality of breast augmentation.

Also noteworthy is that Section 212.5(b) of the regulations allow a female MMA contestant to “wear approved chest protection during competition“, a rule designed to perhaps alleviate this risk.

Lastly, Section 206.14 offers fighters the following due process rights

The Commission shall offer the opportunity for a hearing before taking any final action negatively affecting any person’s individual privileges or property granted by a license, permit or other authorization duly issued by the Commission or a contract approved by and filed with the Commission.

Given the above Gonzalez has a strong argument should she choose to protest this controversial last minute decision.   Decisions regarding fighter safety certainly should not be taken lightly.  Administrative fairness, however, is also important and if a regulator chooses to prohibit an athlete from competing they should only do so with consistency and clear legal authority.

This morning some controversy arose during Daniel Cormier’s weigh in for his title defense of the UFC light heavyweight championship at UFC 210.

The New York State Athletic Commission utilized early weigh ins slotted to end at 11:00 am. With minutes left Cormier hit the scales, stripped bare, and weighed 1.2 pounds over the limit.

New York State Athletic Commission regulations do not allow a fighter to weigh in over the limit for title bouts with section 212.4(c) noting “In championship matches the participants must weigh no more than the maximum weight allowed for the relevant weight class“.

The rules are silent on whether a second chance is allowed for fighters who initially miss weight with the rules simply noting that “The times and places of all weighing in ceremonies shall be as determined by the Commission“.  Moments later Cormier weighed in again.  Given the regulatory silence and the above wording allowing the second weigh in is likely a matter of commission discretion so likely no controversy yet.  Additionally, the NYSAC has a “weigh in procedure” bulletin, and although it references boxing and not MMA, it reads as follows for title bouts –

In a title bout, if a boxer is not at or below the contracted weight when he or she gets on the scale at the official weigh-in, the boxer will be given up to two hours to attempt to make the contracted weight.”

What was controversial was that Cormier made weight the second time dropping 1.2 pounds in a matter of approximately two minutes.  While this can be explained by perhaps something like a quick bowel movement, it can also be explained by Cormier leaning on the towel during the weigh in letting some of his weight be braced by others.

Cormier Screeshot

(screenshot via MMAFighting stream)

A rule violation that likely did occur, however, is violation of s. 212.4(a) which requires a weigh in to occur “in the presence of their opponent “.  Cormier’s opponent was not present at the moment he weighed in (but was in the vicinity as he weighed in moments after).

The reason for this requirement is so the opponent can speak up when issues such as this controversy arise.

New York also has a strangely worded prohibition for rapid extreme weight cuts but bizarrely this does not get triggered until 24 hours before the bout (after fighters make weight) so this rule was not violated.  It is set out in s. 208.14 of the Regulations and reads as follows –

No professional boxer or professional mixed martial artist shall participate in any contest or exhibition following weight loss of one percent or more of body weight within 24 hours prior to such contest or exhibition, unless otherwise authorized by the Commission. A combatant may be disapproved for participation in a match or exhibition if, in the professional medical opinion of the reviewing physician, it would be unsafe for the combatant to compete in the match or exhibition due to a finding of dehydration or extreme weight loss.

Today the World Anti Doping Agency published their 2015 Anti-Doping  Rule Violations (“ADRV”) Report.  The full report can be found here.

Combative sports only made up 2 of the top 10 sports with the most anti-doping rule violations.  Specifically boxing and wrestling placed 8th and 9th on the list.

Of the overall adverse samples, 65% resulted in sanctions, 12% of athletes were cleared as having valid medical reasons for ingesting the substances and 8% were cleared resulting in no sanction due to issues such as tainted supplements or tainted meat.

AAF Outcomes

In terms of combat sports specific findings the data revealed as follows

Sport          Total Samples Taken         Total Adverse Findings             ADRV Established

Boxing           4842                                         85                                                      58

Judo                5104                                         35                                                      21

Taekwondo   2184                                         21                                                      12

Wrestling       5381                                         62                                                      52

Karate              936                                          13                                                      11

Wushu              397                                           7                                                        6

Kickboxing      537                                           22                                                     20

Muay Thai        192                                           14                                                      12

Sambo                352                                           8                                                        8

Savate                  46                                            1                                                        1

Combat Sports   24                                            2                                                         2

MMA                    484                                         12                                                        6

Jiu Jitsu                 2                                             1                                                          –

Kung Fu              20                                             1                                                          1