Erik Magraken: What kind of liability is at stake for athletic commissions with fighters who use PEDs?
By Zach Arnold | January 19, 2014
Erik Magraken is a Personal Injury litigation lawyer practicing in Victoria, BC. Erik follows regulatory developments regarding combat sports and authors the CanadianMMALawBlog.
The NFL concussion lawsuit can teach combat sport regulators a valuable lesson. Failing to provide reasonable athlete protection can lead to significant liability. Allegations of fraud go a long way in getting around limitation periods, waivers and assumption of risk. Last week the tune of three quarters of a billion dollars was rejected as insufficient justice to satisfy the allegations of fraud and player safety neglect in professional football.
If the world of MMA wants to avoid a similar reckoning meaningful steps must be taken to address the state of PED testing in combat sports. These should start now with no better place to begin than with the soon-to-be-appointed Executive Director of the Nevada State Athletic Commission.
The Skeleton of a Civil Lawsuit
The structure of a civil lawsuit in negligence is surprisingly simple. The ingredients of a successful claim include proving that the Defendant owes a duty to a Plaintiff, the Defendant fails to meet the standard of care, and lastly this failure causes the Plaintiff damages. When you apply inadequate PED testing to this framework a case for commission liability can be argued.
Can the Nevada State Athletic Commission be Sued?
The general rule in Nevada is the state can be sued with NRS 41.031 holding that:
the State of Nevada…hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons and corporations
The Nevada Commission is alive to such potential exposure. They try to circle the wagons by having all combatants sign a Bout Agreement which has combatants “release and forever discharge the State of Nevada and the Commission…from any and all actions, causes of actions” stemming from regulated combative sports.
However, these agreements are made with the assumption that everyone follows the rules. Fraud can get around waivers. Fraud can get around limitation periods. And whether you like it or not, there is fraud in MMA. Specifically PED abuse.
When a combatant competes they should be allowed to assume their opponents are clean. When a competitor uses illegal PED’s, then lies about this in the bout agreement that is fraud. Fraud can vitiate consent to fight undermining the integrity of the entire bout and the protections parties seek through waivers.
Getting Around Waivers
Waivers are not iron clad in Nevada. For a Release to be upheld the person signing it must appreciate the dangers they are facing.
The essential element is “actual knowledge of the danger assumed”. In the context of MMA there are clear dangers which are assumed by agreeing to fight. In the case of fraudulently hidden doping, however, its not enough to consent to the dangers inherent in a fight, but consenting to a fight with illicit doping creating unfair advantage.
Nowhere does the NSAC waiver acknowledge that combatants agree to such enhanced dangers. In fact the bout agreement contemplates just the opposite with the parties agreeing to follow Nevada’s rules. Absent such language it is difficult to argue that competitors agree to the “actual danger assumed”.
If the waivers don’t hold up, the doors to litigation open wide.
So Where’s the Neglect?
Athletic Commissions are not responsible for the fraudulent actions of PED cheats. However, when they fail to take reasonable steps to weed out cheaters given their regulatory powers they may be negligent.
Once the path is cleared for litigation the question becomes: did the NSAC take reasonable steps to protect competitors? Doping leads to dangers. If common sense is not enough to prove this, the NSAC expressly acknowledges that they must “ensure that competition between fighters in Nevada is conducted in a fair manner and that each fighter’s health is not compromised by the use of prohibited substances”. The NSAC even crafted a 2008 out of competition testing policy to address this.
However, out of competition testing is rarely used. Further, the reliance on urine tests as opposed to the more sophisticated blood tests does little to weed out cheaters who the NSAC acknowledges “have become very sophisticated in the timing of taking prohibited substances”.
This cost saving election comes at the price of combatant safety by allowing more PED abusers to slip through the cracks. Blood testing needs to be incorporated. As Dr. Benjamin explained to MMAJunkie:
Blood screening is more sensitive (more likely to detect a banned substance), detects more banned substances, and is more difficult to beat through “masking” methods. Blood screening is the current standard for detecting abnormally elevated levels of synthetic human growth hormone (HGH).
Relying only on post bout urinalysis does nothing to ensure the safety of the clean combatant. The damage (from a bout they otherwise would not have consented to) is already done. From here the door is opened exposing the State to potential damages.
The solution is random out of competition blood testing. This is the standard of care a Court would likely impose if ever asked. The NSAC has the tools and abilities to do this.
Implementing this standard will help look after combatant safety and protect the integrity of the sport. Keeping the status quo will invite costly remedies through litigation which can undermine the foundation of the sport.
It is true that blood testing costs more than urinalysis, however, this is not a cost borne by the State rather it can be passed on to promoters. This reality makes the current lax PED testing landscape harder to justify.
If One Was Cynical…
Frequent, random out of competition blood testing will catch more cheaters. This would derail some scheduled events but if the NSAC put combatant safety first this concern would be irrelevant. However, with boasts of Top MMA Gates and Top Boxing Gates on the front of the NSAC website, a cynic would argue other priorities are at play.
Crossing State Lines
Commissions should not be shy to take the lead. As Nevada goes others often follow however other jurisdictions have nothing to gain waiting for Nevada to be first out of the gate. The above analysis is not exclusive to Nevada. Other high volume combat sport jurisdictions such as California and Texas should also ensure safety is put before profit.
When stakeholders look at their ledgers and weigh the costs of enhanced PED testing they should remember that, whatever the figure, it pales in comparison to three quarters of a billion dollars.