By Zach Arnold | December 25, 2013
Athletic commission hearings are often some of the strangest political board meetings you can ever watch in action. What you see in front of your eyes isn’t always reality. And if nobody is around to follow what is happening, then you get blindsided by surprises you never prepared for.
Last week, the California State Athletic Commission held a meeting at Consumer Affairs HQ in Sacramento. I took a pass on the hearing because I wanted to focus on Dwayne Woodard’s age discrimination/retaliation lawsuit in Los Angeles Superior Court. His lawsuit, along with former front office worker Sarah Waklee’s harassment lawsuit, are hanging over CSAC like the Sword of Damocles. Someone is going to pay a price. Now it’s just a matter of who, when, and how much. One thing is for sure: California taxpayers will be the losers (again).
So, I started watching the video of the CSAC Sacramento hearing and there were some really big developments coming out of it that nobody has comprehended or discussed yet.
The first & most obvious thing to witness with the Athletic Commission is how MMA-oriented the political body is now. I never thought in my lifetime that I would see a major athletic commission, especially in such a boxing-crazy state, be 100% focused & dominated on MMA matters. Whether it’s debating over the way judges score fights or who gets selected to judge the fights in the first place, everything is entirely about MMA.
I can tell you that many in boxing have privately confided to me how shocked they are about what is happening and don’t understand how things have turned out the way they have.
Two key items to note here about where California stands.
One, the budget of $1.2 million USD appears to be really tight for Andy Foster. And a big problem he is facing has to do with the lawsuits against the commission. Because they are working with the Attorney General’s office in Los Angeles on the cases, the AG’s office is billing CSAC a lot. They are not going out of their way to settle the cases or run a streamlined budget. They’re just tossing legal bills towards CSAC & Consumer Affairs. Who will pay the price for it? Andy Foster. He’s the one who will get the squeeze when his budget goes out of whack and the AG’s office keeps sending the bills.
Just wait until they press their luck and let the two lawsuits go to trial. Can’t wait to see who takes the fall if they lose hundreds of thousands, if not millions of dollars in damages.
There are currently 63 athletic inspectors and 20 temporary/volunteer inspectors who can apply to become a permanent athletic inspector after a certain amount of time served.
Promoters not cooperating with CSAC over contract disclosure
One of the more stunning admissions at the Sacramento hearing came from a discussion about a request from the Bureau of State Audits about having the commission obtain copies of the television contracts that event promoters have with the TV networks. No one has bent over backwards to be more promoter-friendly and biased towards promoters than Andy Foster. He’s practically UFC’s gumby. He’s done everything he possibly can.
Hell, the Consumer Affairs lawyer (Michael Santiago) who put a stop to the testosterone BS amongst fighters in California appears to be jettisoned out of CSAC affairs and replaced by long-time DCA lawyer Spencer Walker. Let’s just say Walker is more pliable in his legal interpretations and not by-the-book like Santiago was.
Foster addressed BSA’s desire to obtain copies of the TV contracts by saying that it was not “feasible.” I couldn’t make heads of tails of what that meant, but octogenarian John Frierson sniffed out what it meant. He asked Andy to explain why it wasn’t feasible. You could quickly see where this was going. The answer? None of the event promoters in MMA or boxing supposedly want to disclose copies of their television contracts.
Which raises a myriad of issues. 1) We know all about details regarding TV contracts between networks and other big sports organizations. What are the combat sports promoters hiding? 2) How the hell are promoters going to hide their TV contracts when they have to calculate how much to pay for TV tax to California? Remember, California just raised the TV tax cap from $25,000 to $35,000 per show. 3) What legal pretense do the promoters have in not cooperating? Are they going to claim issues regarding “trade secrets” that can’t be disclosed? Do they not want a state agency like BSA fishing through contracts to sniff around for possible anti-trust violations?
Listen, if I was a promoter and a political body told me to disclose TV contracts, I wouldn’t go along with it either. But that doesn’t mean that it isn’t a slap to the face of Andy Foster. The guy’s gone out of his way to be more promoter-friendly than any other modern Executive Officer. It just proves that promoters only respond to fear and not sugar.
If you want to listen to the portion about promoters refusing to disclose their TV contracts “because it’s not industry feasible,” jump to the 17 minute mark of the embedded Youtube video. It’s quite an exchange.
Does the Athletic Commission have the legal authority to get those contracts? They do. Business & Professions Code lays out the case for using the Attorney General’s office for enforcement. The commission has the right to see the contracts to ensure the right kind of financial calculations. But Andy Foster isn’t going to press the case. The question is whether or not state auditors will take a different view of the matter and have the state challenge promoters & TV networks in court over this.
Defending boxing judges
The Athletic Commission’s position after the Julio Cesar Chavez/Bryan Vera fight is that the three judges who scored the bout in favor of JCC got it right.
Andy Foster asked his #1 judge, Max Deluca, to re-score the fight. Deluca scored the fight 96-94 for JCC live. After watching it on tape, he scored it 96-94 for Vera. John Frierson criticized some of the boxing judges for having rabbit ears, saying that they pay more attention to the critics than doing their actual job.
“They should just do their job without worrying about what [the critics are] going to say.”
The AC’s position on the scoring for JCC/Vera stands.
I want you to juxtapose this response to California’s boxing judges versus the internal commission response to focusing squarely on MMA judging. It’s a night-and-day contrast for priorities.
Changing the way scoring is handled for MMA bouts in California
When Andy Foster penned his open letter on MMA Mania about the need to go for a PRIDE-style scoring system, he opened Pandora’s box.
Little did he know that one of the commissioners would chew his ass out for penning such a letter and making it look it came from the commission as a body. Even when making cogent & sober points about what to do with judging criteria, the guy was being a jerk to Andy Foster.
Essentially, there is a consensus being built to modify the way the 10-point must system is being used. A dominant round should be a 10-7 round if there was a real beatdown. A 10-8 round should be scored if it was a decisive win for one fighter. A 10-9 round should be used if it’s a close round but one fighter eeked by. And a 10-10 round should be used if the round was impossible to score and pick a winner for.
Andy was by far the most passionate about this topic (out of all the agenda items).
“This one point is deciding the difference between vasts mount of money, vast career paths. All these things factor in.”
Big John McCarthy, who was at the meeting along with Andy’s #1 athletic inspector Mark Relyea to receive an award, backed Andy’s stance. He noted as a Godfather (with Jeff Blatnick) of the Unified Rules that it’s time for a change.
“It’s antiquated. It’s wrong. The sport has changed. The athletes have changed. They’re much better. They’re doing things differently.
“Being comfortable is not the answer. Being progressive … is the answer.”
McCarthy said that California should either lead, follow, or get out of the way.
Martha Shen-Urquidez, the commissioner who happens to be a licensed attorney (and fixer for both Andy Foster & Big John McCarthy), stated that all officials will be required to go to Central California for a training session the week after the Super Bowl in February. The training session will be held under the direction of the new commission-backed officials organization that McCarthy is a front man for. It’s the organization that CSAC is pushing to bust Raul Caiz Jr’s officials organization. In order to be part of the commission-backed McCarthy organization, you have to resign from Caiz’s deal first.
(He stated that in writing and we posted that letter.)
A centralized oligarchy
If you had told me two years ago, given the political climate, that Big John McCarthy would have complete and total power over the California State Athletic Commission, I would have never believed it. But that’s the reality on the ground now.
It’s Big John McCarthy, his friend Andy Foster, his fixer Martha Shen-Urquidez, and the crew from the LAPD & LA Sheriff’s Department that maintain all the control & power right now. Everything runs through them. If you are in the group and you play by their standards, you’re fine. If you’re not into the political game, you’re finished. Just my educated opinion… but one I’ll defend any time.
Everything now runs through the Big John McCarthy pipeline. If you want to get anywhere now in California, he’s the conduit. He’s the guy you have to win over to get anything done. This could end either really well or really bad. There will be no middle ground for an outcome.
Changing the criteria for who can judge
As stated, the big fixer/lawyer now for Andy Foster on the commission is Martha Shen-Urquidez. She worked with the LAPD and worked at the LA Housing Authority (a couple of articles here and here). A quick search of the LA Times and other media outlets quickly reveals very strong opinions about her past legal actions at the places she’s conducted business at.
Martha’s name is practically on all of the sub-committees created for the commission. She maintains all the power as The Fixer. One of her sub-committees is Ringside Officials Oversight Subcommittee.
The official policy for referees & judges who work MMA shows now in California, as proposed in changes to rules & regulations drafted by Shen-Urquidez, is as follows: if you want to work MMA shows, you have to be at minimum a blue belt in BJJ to work non-title fights and a purple belt in BJJ to work title fights.
Go to the 1 hour, 22 minute mark of the embedded video to see the discussion.
Martha cited Business and Professions Code 18640 and California’s Code of Regulations 330 & 370 as the instruments for modification to implement this new criteria in writing.
B & P Code 18640 states as follows:
18640. The commission has the sole direction, management, control of, and jurisdiction over all professional and amateur boxing, professional and amateur kickboxing, all forms and combinations of forms of full contact martial arts contests, including mixed martial arts, and matches or exhibitions conducted, held, or given within this state. No event shall take place without the prior approval of the commission. No person shall engage in the promotion of, or participate in, a boxing or martial arts contest, match, or exhibition without a license, and except in accordance with this chapter and the rules adopted hereunder.
Rule 330 states as follows:
§ 330. Officials. The officials referred to in Section 18735 of the code shall consist of referees, judges, timekeepers, announcers, physicians in attendance at a contest or exhibition at the commission’s direction in accordance with Section 18705 of the code, physicians appointed by the commission to perform any examination of boxers for licensure purposes or under Section 18711 of the code, and commission representatives. The referees, judges, physicians described in this section, commission representative and timekeepers shall be assigned by the commission.
The club may, with the approval of the commission, select the announcers at boxing contests or exhibitions held under the auspices of the club.
Note: Authority cited: Section 18611, Business and Professions Code. Reference: Sections 18640, 18641, 18705, 18711 and 18735, Business and Professions Code.
@FightOpinion in BJJ? How does that help grapplers who specialize in lutra, catch, judo, Greco, or freestyle?
— Magnum G.I. (@TheMagnumGI) December 25, 2013
All officials will now be evaluated by the commission with a pre-selected evaluator. If the official is not deemed qualified, they will be sidelined from getting booked for shows until they gain commission approval.
Bottom line? This new policy will be voted on at the next CSAC meeting in February and then sent off to legislative channels to get implemented in writing.
What does it mean for the MMA industry and what does it mean from a legal standpoint? For the MMA industry, it means California will be a pro-grappling commission that scores fights very differently than other athletic commissions. There is no question that the viewpoints of the judges will be in stark contrast to, say, judges in Nevada or Texas.
Don’t get me wrong — I appreciate the concept of using officials with actual fighting experience. However, fighting experience does not automatically equal a higher degree of competence or uniformity. I know plenty of people who aren’t blue belts who would be just as qualified to do the job as a judge.
Which leads me to a much larger legal point. If CSAC goes ahead and puts this policy in writing, the gates will immediately open for a court challenge (via Private Attorney General Act) to seek a writ of mandate (court order) for declaratory relief (stoppage) based on the fact that the new criteria is heavily weighted towards one discipline of martial art. What about kickboxing? Karate? Judo? Boxing? Amateur wrestling? What makes BJJ the primary standard skill qualification to be a judge or referee for a show?
From the few industry sources I’ve talked with about this proposed change, I’ve yet to hear one positive comment. One prominent California training camp representative argued that the new regulations would influence gym owners looking to seek the good graces of Andy Foster to rush the promotion of as many students to blue or purple belt status as possible in order to get work with CSAC.
I understand the initial logic behind the proposed regulation change, but it doesn’t mean that it’s legally sound or practical. At the Sacramento meeting, Martha went on talk about licensees who should understand that they work at the pleasure of the commission. Those licensees should know their role and understand that being licensed “does not confer entitlement of assignment upon the official.”
I get it. In today’s political world, personnel is policy and you can follow or ignore the laws as you wish. But once you go the route of making actual changes to rules & regulations or statutes, then it’s in writing and it’s ripe for court action. Given how many people who are angry right now behind the scenes in regulatory circles, I would expect some challenges to come forward.
Other changes coming
Money from the neurological fund will be used for doctors to do experimental testing in 2014 at shows. The front office has put out some equipment bids. Dr. Chris Giza at UCLA and his staff will be working with various athletic inspectors for testing. They want to find the right tests to make the best determinations possible when it comes to head trauma.
A main event high-stakes legal game
If you don’t care about what’s going on with the two lawsuits filed against the commission, stop reading.
Earlier, I started this article out with the threat that the two major lawsuit by Dwayne Woodard and Sarah Waklee pose to the commission. The longer these suits last in court, the more bills the Attorney General’s office will send to CSAC and drain Andy Foster’s budget. And he’ll get dumped on for the mess when, as far as we know, he wasn’t involved in making the bad decisions that led us to this point in time.
On the agenda for the CSAC 12/16 Sacramento hearing, there was a standard item at the bottom about a closed session for the commission with Spencer Walker, the legal stooge from Consumer Affairs. Standard boilerplate code for a commission dealing with a lawsuit. 11126(e)(1):
(e)(1)Nothing in this article shall be construed to prevent a state body, based on the advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the state body in the litigation.
To make everything clear, CSAC’s legal counsel in their court cases is the Attorney General’s office in Los Angeles (wine lawyer Elisabeth Frater) & Consumer Affairs lawyers in Sacramento (led by Spencer Walker). The commission has DCA attorneys guiding them for legal counsel.
Martha Shen-Urquidez is licensed as an active lawyer in California. However, she is not the commission’s lawyer. She is not listed as active or outside counsel for the commission in either the Woodard or Waklee lawsuits.
At the Sacramento hearing, Shen-Urquidez was listed for a sub-committee called Legal Oversight. When the Athletic Commission meets with their legal counsel in closed session, they are agreeing to meet with legal counsel as a whole body. On the sub-commitee, there’s two people: Martha Shen-Urquidez and John Carvelli. When Andy Foster asked Martha to give her Legal Oversight sub-commitee report, she stated the following (1 hour, 16 minute mark of embedded video):
“I think I will save this report for the closed session. I don’t have anything to report other than in closed session.”
You can then hear Spencer Walker on camera say the following: “She’s referring to those two cases that are in closed session.”
Martha responds: “The legal oversight. I don’t have anything to report other than in closed session.”
Someone asks: “As it relates to the case in closed session?”
She replies: “Yeah. In closed session.”
The point of a sub-committee is to report whatever findings they come up with in public. It’s listed on the agenda for open session. It’s not listed as an item for closed session with DCA legal. If she wanted her sub-committee to issue a report in closed session, then why didn’t she classify it under the 11126(e)(1) closed session agenda item? That right there is getting into some questionable territory regarding the Brown Act for open commission meetings.
Why would there be a need to publicly announce the formation of a legal sub-committee, especially if any reports produced from said sub-committee are hidden from public view, if she’s already a defendant in the lawsuit and has legal counsel with lawyer/client protections? I mean, I could come up with a logical guess of her acting as a de facto lawyer/legal adviser for the other members of the commission as an added layer in addition to whatever DCA & AG tell CSAC in closed session…
Is the legal information she’s using for her sub-committee reports based on the same legal information DCA counsel is providing to all members of the commission body… or is she receiving, independently from the commission as a body, more information related to the case from DCA legal and/or the Attorney General’s office? In other words, is she being given case information for her “sub-committee” that the other commission members, as a body, are not receiving?
This is a giant legal mess for Consumer Affairs and the CSAC. No wonder they’re having difficulties handling the two court cases as they currently stand. Who the hell is communicating with whom and on what grounds? They’re asking for trouble here. And you know who’s going to pick up the bill? The state’s taxpayers.