As first reported by Conduct Detrimental, Mark Hunt’s appeal in his doping lawsuit against the UFC has been revived.
By way of background Mark Hunt fought and lost to Brock Lesnar in 2017. Prior to the bout the UFC waived their normal doping protocols for Lesnar as an athlete (re)joining the promotion. After the bout Lesnar tested positive for various banned substances. Hunt sued the UFC’s parent company, Dana White and Brock Lesnar. A District Court went on to dismiss the lawsuit in full.
While the lawsuit made several allegations against the defendants the most straightforward ones were that Hunt never consented to fight a doping opponent and such a bout ended up causing him and his reputation harm. The District Court dismissed this aspect of the claim finding that athletes in MMA implicitly consent to fight doping opponents as an inherent risk of the sport. A finding that many MMA athletes strongly disagree with.
On appeal Hunt’s claims based on fraud and battery were revived. In doing so the appellate court disagreed with the reasoning that MMA fighters consent to fight doping opponents noting that this matter needs to be addressed at full trial. The case is now cleared to head to trial to obtain a ruling on this crucial issue.
The following key reasons were issued on this topic:
We also reverse the district court’s dismissal of Hunt’s battery and aiding and abetting battery claims. “A battery is an intentional and offensive touching of a person who has not consented to the touching . . . .”
… Although “[c]onsent negates the existence of the tort,” … “[t]o be effective, consent must be . . . to the particular conduct, or to substantially the same conduct.” …Because the Nevada Supreme Court has not spoken to the question whether, or to what extent, a battery claim may be brought on the basis of conduct in sporting activities, we must predict how that court would decide the issue.
The principles of assumption of risk and of consent are similar. …. Nevertheless, the Restatement draws an important distinction between the two, identifying assumption of risk as “[c]onsent to conduct that is merely negligent, creating an unreasonable risk of harm,” and specifying that the concept is explained in a chapter separate and apart from the discussion of consent. …Thus, although the Restatement does counsel that “[o]ne who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort . . .,” that principle does not apply to assumption of risk…
The below noteworthy footnote accompanied the reasons making it clear exactly the legal importance of what is at stake:
Even if the Supreme Court of Nevada were to conclude otherwise, dismissal of
Hunt’s battery claims would not be appropriate at the pleading stage. The
California Supreme Court’s application of assumption of the risk principles in
Avila v. Citrus Community College District was predicated on a factual finding that
intentional beaning is within the range of ordinary baseball activity. Avila, 38 Cal.
4th at 165, 171 (Kennard, J, dissenting). Here, there has been no similar
conclusion that doping is within the normal scope of organized MMA activity, nor
does the question appear to be beyond reasonable dispute.