Posts Tagged ‘informed consent’

Interesting reasons for judgement were released last week by the US District Court, Southern District of New York, discussing contractual liability after a boxing bout was cancelled due to an athlete failing to pass a pre-bout drug test.

The full decision can be found here: World of Boxing v. Don King

In short Don King was found liable for breaching his contract with co-promoter World of Boxing, LLC after King’s fighter, Guillermo Jones, failed a pre bout drug test and the bout was cancelled.

In finding liability rests with King District Judge Scheindlen noted as follows

The question is which party – King or WOB – should have to shoulder these costs.  The law makes it clear that the answer is King.  As the party who promised to secure Jones’s participation, King “assumed the risk” of foreseeable events that might frustrate his ability to ake good on that promise.  Because the risk of a second positive test was foreseeable – so foreseeable, in fact, that the Agreement set out a mandatory testig provision to lessen its likelihood, King’s breach cannot be excused”

Legally this case speaks to the importance of contractual agreements clearly setting out who is liable should a bout be cancelled due to a positive PED test.  Damages have yet to be assessed and it would be equally desirable for such contracts to spell out exactly what damages the aggrieved party would be entitled to in these circumstances.

Lastly, this case is notable because it illustrates that it is reasonable for a fighter to withdraw consent to fight an opponent who is on illicit PED’s.  This withdrawal of consent can be instrumental to proving civil liability if a fighter is ever harmed at the hands of a PED using opponent.  In noting that Lebedev’s withdrawal was reasonable the Court referenced a letter from the WBA noting that-

“(Lebedev’s withdrawal) was justifiable on the basis that the WBA would not, and could not, sanction a championship bout when it was aware of Jones’ positive test as this would violate WBA rules, may cause unnecessary harm to Lebedev and would otherwise compromise the nature of the WBA world title bouts.”

In accepting that Lebedev did nothing wrong Judge Scheindlin noted “Once Jones tested positive, WOB and Lebedev were entitled to treat the entire contract as broken, because Jones’s participation (which the positive test rendered impossible) was the centerpiece of the agreement.  In other words, King’s argument that Lebedev breached the agreement necessarily fails, because the Agreement had already been breached – by King – when Lebedev withdrew.

MRI_brain

On the heels of the NFL $765 Million Concussion lawsuit settlement comes a proposed class action filed by 10 former NHL players.

This high profile lawsuit seeks damages based on allegations that the NHL fraudulently concealed or otherwise kept relevant data about concussive risks from its players and further that the league failed to take reasonable safety precautions in the face of ever growing knowledge about traumatic brain injury.  You can click here to read the NHL Concussion Class Action Complaint

While none of the claims have been proven in Court the lawsuit will, at the very least, result in a prolonged scrutiny of concussions in hockey, the league’s knowledge of these risks and their actions (or inaction) in the face of this knowledge.  The allegations are founded in fraud.  If proven true these allegations can work to get around limitation periods and expose the league to significant damages.

Whether there is any merit in this claim or not, there is a lesson to be learned from the recent wave of sports concussion lawsuits and it comes down to informed consent.  Yes contact sports and combat sports are dangerous.  Yes some of these risks are obvious.  Others are less so such as the accumulation of trauma from a career of subconcussive impacts.  Combat sport promotions should ensure that their athletes have an up to date understanding on the connection between concussive/multiple sub concussive impacts and long term brain injury.  As previously pointed outretired Canadian MMA fighter Nick Denis demonstrated that not all fighters agree to carry on with a career in MMA after learning of these risks.  Failing to facilitate athlete’s appreciation of CTE and other long term consequences not only undermines informed participation, it can also lead to the legal troubles that are now plaguing the NHL.

The UFC has already turned their mind to this issue and built lawsuit waivers into their fighter contacts where combatants agree that MMA is an “inherently and abnormally dangerous activity” which gives rise to many health risks including “irreversible neurological trauma” .  While it is good to work this into the fine print the message needs to be clear and consistent.  Waivers are not iron clad.  Allegations of fraud can be used to undermine these.  It is in the long term interests of all stakeholders in the MMA community to have a real and honest appreciation of the risks that come with participation.  Doing so can enhance participant safety, ensure informed consent and minimize the risk of future litigation.

Torres Post Conssuion Video Pulled by UFC

 

 

 

 

 

 

 

As an MMA fan and lawyer who deals with the consequences of concussive injuries in my professional life I have conflicting feelings when it comes to witnessing a knock out in combat sports.  While it is the most exciting way a fight can end there are well understood potentially long term consequences that stem from concussive injury (and also exposure to frequent sub-concussive forces).

I have spent a good deal of time highlighting safety issues on this blog pointing out that regulators and opponents of MMA and combat sports should not get carried away by overstating the dangers of the sport.  At the same time, those involved in combat sports should not undermine the risks with statements along the lines of MMA being the “safest sport in the world“.

Ultimately I square my competing views with the principle of informed consent.  So long as there is regulation of combat sport with fighter safety at the forefront athletes should be free to choose to compete in MMA.  That said, the consent needs to be informed.  There is risk of injury and anyone profiting from combat sports would do well to assist fighters in understanding the risks.  While some of the risks are quite obvious such as cuts, bruises and broken bones, others are less so.  The long term consequences of traumatic brain injury are becoming better understood by the day by the scientific community.  These injuries are often invisible and the UFC themselves understands this very well as demonstrated by their support of the “Wounds You Can’t See” CampaignUFC supports wounds you cant see campaign

 

 

 

With this background in mind, a recent opportunity which could serve as a teachable moment is being missed.  As reported at Bloody Elbow, post fight video of Miguell Torres’ knockout loss to Michael McDonald recently surfaced.  This showed him clearly suffering from concussive amnesia which is a consequence flowing from brain trauma.  The UFC, unfortunately, pulled the video due to a copyright claim.  Whether or not the claim has legal merit, it should be revisited by the top brass.  This video can instead be used to show those involved and those aspiring to get involved in the world of MMA that their choice to participate does come with risk.  A concussive injury does not always end when an athlete regains consciousness.  The consequences from brain trauma can linger.  Information and education are key and promoters would do well to facilitate meaningful informed consent for their athletes.

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Update May 9, 2013 – An informative article discussing the issue of Brain Trauma in MMA was published today at Bleacher Report which is worth reviewing for anyone interested in this topic.

Also, this article was republished with my permission at Top MMA News.  Feel free to visit there and join the discussion.