30.10.16

What are the legal issues affecting MMA fighters?

MMA UFC Fighters and the legal issues
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What is MMA?

MMA stands for mixed martial arts and is a full combat sport using techniques across various disciplines including jiu-jitsu, muay-thai and wrestling. The main promoter and organiser of MMA is the Ultimate Fighting Championship (UFC) which is based in the United States but rolls-out events, globally. The UFC doesn't really have any other competitors and therefore holds a near-monopoly position in the commercial MMA market. This also gives them a significant advantage when negotiating contracts with fighters who are unable to supplement their income with any other competing organisation.

The popularity of MMA, as a spectator sport, has exploded over the last few years and now enjoys a global fanbase with the UFC having an estimated brand worth of $4bn, according to Forbes. However, it wasn't always bright lights and pay-cheques for MMA, the sport has had an uphill battle in terms of convincing critics over concerns about the sport's violent nature and safety regulations. The sport is still banned in Norway and France, in October 2016, announced the implementation of combat sport regulations which sees MMA outlawed across the country. However, in the United States, MMA continues to go from strength to strength, enjoying enormous growth each year. In March 2016, New York became the 50th state to legalise MMA and is looking forward to a sold out Madison Square Garden bout, in November, when Irish superstar, Conor McGregor looks to make history when he challenges Eddie Alvarez, in an attempt to become the first fighter to hold two UFC titles, at the same time.

The MMA bandwagon shows no signs of slowing down and as the commercialisation of the sport continues to grow and the UFC's worth continues to rise, it is only fair, just and reasonable that the fighters, who put themselves physically and financially at risk, are protected and not subjected to exploitation and unfair contract terms.

What is the employment status of fighters?

Fighters, in the UFC, are classified as independent contractors and suffer alarming inequality when it comes to negotiating their contract terms. The Bleacher Report released an article which gave an insight into fighter contracts. Some of the most common (and quite frankly damn right unfair) contract terms included the following: (1) Grant of promotional rights to UFC; (2) Prohibited use of IP rights; and (3) 'Champion Clauses' - whereby contracts can be extended once a fighter holds a championship. On top of that, the revenue for the majority of fighters (unless you are a superstar fighter) is relatively low. It is reported that 90% of the revenue from MMA is held by UFC with less than 20% going to fighters.

But are fighters correctly classified as 'independent contractors' - possibly not.

Despite fighters being classified as contractors, the UFC aims to control it's fighters by implementing various provisions into contracts, each year. For example, fighters are now to wear uniforms made by Reebok during fights, are required to submit to an anti-doping program, via USADA and are subject to a Code of Conduct. Notwithstanding that, UFC arranged and paid for insurance policies for all of it's fighters which covers injuries not only during a fight but also in everyday situations.

The more that UFC continues to use methods (such as the above) to control it's fighters, the more likely it is that the status of 'independent contractors' will move into the realms of 'employee' - with all the benefits, rights and protections that come with that.

Taxi company, Uber, has recently learned their lesson the hard way, in a similar situation. Uber was classifying it's drivers as 'self-employed' and not meeting basic employee rights such as minimum wage, sick pay, holiday pay and breaks. This was challenged at an employment tribunal where it was claimed that Uber was acting unlawfully. The claim was upheld and will not only affect thousands of Uber drivers but workers, across various roles, where employers' are classifying workers incorrectly and ultimately denying them of the rights that they are entitled to.

IP/Image Rights/Sponsorship

UFC Reebok Deal, UFC fighter's image rights and sponsorship
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Under their contracts, UFC fighters lack control of their own intellectual property and image rights. UFC has an: "exclusive, unrestricted worldwide right to secure, promote, arrange and present any and all mixed martial arts contests .... to be engaged in by Fighter during the Term ... and any Extension Term ... including all rights to stage each bout and to sell tickets of admission thereto (the "Promotional Rights") and to exploit the Ancillary Rights (as defined herein) to each Bout in all media, now known or hereafter devised throughout the world in perpetuity."

Effectively, this means that UFC is able to use the image/brand of a fighter indefinitely without any royalties being paid to the fighter. The UFC also holds all fighter image rights forever. On the flip-side of that, fighters must receive written consent from UFC, before using the organisation's intellectual property rights which include the following trademarks: "Ultimate Fighting Championship", "UFC", "Octagon" and "UFC Champion".

Such contract terms cannot be said to be in the best interests of the fighters who not only go through immense physical strain but also put themselves in financial risk, when competing to be the best. With terms such as the above, fighters are unable to supplement any prize money they receive, with royalties from the use of their images or own intellectual property. This has the potential to create dire financial situations as many fighters have significant outlays as they require to pay for their own training regimes.

Although fighters are able to pursue sponsorship deals, any potential fees arising from such relationships are likely to be limited as a result of the UFC's 'fight-kit' deal with Reebok. In July 2015, the UFC entered into an agreement with Reebok, to provide essentially what was a fight-uniform. All fighters, as well as their coaches and team are required to wear the uniform before, during and after each fight.

This deal means that fighters can no longer wear clothing that is either made by or sports the logo/brand of their own personal sponsor, during those specified times. This, in turn, no doubt limits any sponsorship fees that they could have been receiving, from their own sponsors, as the maximum exposure time will be before, during and immediately after a fight. Whilst fighters are entitled to receive a percentage of the sums generated from the Reebok deal, any figures are based on the amount of times that they have fought in the 'Octagon', and thus likely to be less than any of their own negotiated personal sponsorship deals.

Canadian fighter, Georges St-Pierre, is challenging the UFC over this very concept and is seeking compensation for loss of income and a change to his contract, due to the lucrative earnings he could have been receiving from his own personal sponsorship deal with sportswear brand, Under Armour.

Whilst the dispute has not reached litigation, as of yet, St-Pierre's next move will be watched closely as any potential legal decision would have wide ramifications in relation to fighter's rights.

Could an Association/Union assist fighters?

As explained above, the promoters of MMA are in a greater position than fighters when it comes to bargaining power in negotiating contracts. This puts fighters in an unequal and difficult position. The argument for a union or association has never been stronger than it currently is with some describing UFC contracts as a 'form of slavery'. A collective voice would increase the bargaining power, for fighters, and a union or association would be best placed to bring those negotiations to the table and balance out the inequality that is evident.

A fighter's union would be in a position to deal with grievances such as wages, rates of pay, conditions of work and general disputes. Whilst an association could implement rules and standards that all members would have to adhere to, providing a collective voice to negotiate matters which impact the livelihoods of it's members including group licensing and branding disputes.

All major sports have a union or association (some have both) - footballers have the professional footballer's association whilst the NBA, NFL and MLB also have equivalents. The MLBPA, in particular, has seen particular success in relation to group licensing bargaining for it's members.

Given the lack of competitors, it is easy to see why the majority of fighters are reluctant to speak out against the UFC or lobby for a collective voice, in forming a union/association, for fear of upsetting the 'powers that be' at the UFC. However, it is for the fighters to stand together and fight for the rights that they are entitled to - only they can start the process.

Athlete Safety - Is it time for independent regulation?

Safety in UFC MMA
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Extreme physical danger goes hand-in-hand with MMA and therefore catastrophic, life-changing, injuries are a significant risk for both fighters and promoters.

In a bid to recognise the risk from injuries, the UFC in 2011 (and after a long 3 year hunt for an insurer) finally implemented an insurance scheme for all contracted fighters, across the world. Premiums are paid by UFC and cover includes injuries that occur in-fights but also ordinary accidents that may result in injuries, such as trips and slips, falls and road traffic accidents. Included in the insurance policy is also dental cover and life insurance.

The UFC has also implemented a number of rules and regulations that are designed to prevent serious injury. It should be noted that those rules are 'in-house' and are not subject to any independent national governing body. Effectively, the sport is self-regulated. The rules and regulations range from weight divisions (to ensure competitions are evenly matched) to the 'Octagon' being appropriately padded and specific requirements regarding body protection.

In relation to head injuries, UFC President, Dana White, considers that the sport is safer than the NFL and that the promotion company goes to above and beyond when it comes to fighter safety. He said the following:-

"Concussion is a huge dilemma right now for the NFL. Here's the difference between the UFC and the NFL as far as concussions are concerned. First of all, if you get a concussion, if you get knocked out or you get hurt whatsoever in the UFC, three months suspension. You are on suspension for three months and you cannot come back until you are cleared by a doctor. You can't have any contact whatsoever. In the NFL, you're not going to lose Tom Brady for three months, man. You lose Tom Brady for three months and your whole season is wiped out. So, the UFC, listen, we don't hide from it, it's a contact sport and that's what these guys do, (is) much safer. In the 20-year history of the UFC, it will be 20-years in November, there has never been a death or a serious injury. Never been a death or serious injury in 20 years because we go above and beyond when it comes to the safety of these guys. When you know you have two healthy athletes getting ready to compete, they get the proper medical attention before and after, it's the safest sport in the world, fact."

However, in April 2016, UFC fighter Joao Carvalho died at the age of 28, following a bout with fellow fighter, Charlie Ward, in Dublin, Ireland.

During the bout, Carvalho was punched repeatedly in the head despite having been downed and the referee did not stop the fight (it should be stressed that the referee followed all the rules). In MMA, unlike other combat sports, the fight does not stop when the opponent is floored and fighters can still be attacked when down. Carvalho received blow after blow to his head. He fell ill within 20 minutes of the fight concluding, and rushed to hospital. He would be pronounced dead within 48 hours. 

Despite UFC president, Dana White's comments, one can't help but think that whilst MMA is clearly an inherently dangerous sport, maybe more can be done to protect fighters from catastrophic injuries. The MMA scene has enjoyed explosive popularity over the last few years but despite that, there is still not a national body for the sport, especially in the UK. It is still not recognised by UK Sport, Sport Scotland or Sport Ireland. Is that all about to change, however?

Following Carvalho's death, Ireland's Minister of Sport, Michael King, stated that Ireland would move to regulate MMA as there was a clear problem that required addressed and that this would be done despite the fact that promoters of the sport had not looked to be regulated. He said the following:

“Clearly there’s a problem … This particular sport is not regulated, has not looked for regulation and has not looked to be part of the Sport Ireland program. They are not getting any funding from the state ... Two years ago I saw this danger coming down the line. I’ve had many meetings with people who are concerned about this and I wrote to these professional bodies. I wrote to 17 operators in February of 2014, outlining to them that I expect the safety standards that exist in other sports in Ireland, that they would comply with this regulations. ... If there’s any other major sporting event in the country, there’s national governing bodies. Whoever is hosting that event has to comply with those safety standards and we need to bring in some kind of regulation to deal with this new phenomenon.”

Whilst safety in MMA has clearly come on leaps and bounds, throughout the years, the UFC would be naive to think that it is doing all it can to protect fighters, from extreme catastrophic injuries and that it's the 'safest in the world'. And whilst some countries, such as France, are completely out-lawing the sport others who allow MMA events to be held but don't actively pursue regulation of the sport, are doing an injustice to those competing.

Anti-Doping 

UFC USADA Anti-Doping
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In July 2015, the UFC's anti-doping programme was implemented and is the first of it's kind for drug-testing in it's 21 year history.

The United States Anti-Doping Association (USADA) is appointed as the programme's independent administrator and claims to provide a 'uniform approach and robust enforcement' in pursuing anti-doping investigations.

As with other professional sports, USADA has full discretion regarding which fighters are tested and how often. Fighters are required to log their 'whereabouts' every three months, failure to do so (3 times within a 12 month period) will result in a punishable violation.

Examples of sanctions under the UFC Anti-Doping programme include a two year suspension for steroid use and up to 4 years for cases that involve "aggravating circumstances". In addition to suspensions, fighters are also subject to forfeiture of prize money as well as UFC fines, of up to $500,000. To date, we have yet to see any UFC fines.

Some of the anti-doping cases, thus far

Adam Hunter


UFC Adam Hunter Anti-Doping
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Hunter tested positive for multiple prohibited substances including tamoxifen metabolite, boldenone metabolites, methadienone metabolites, drostanolone metabolite and clenbuterol. Those substances are non-specified substances and are prohibited at all times under the UFC Anti-Doping policy, having adopted the World Anti-Doping Agency (WADA) prohibited list.

Under the UFC Anti-Doping policy, the standard sanction is two years for non-specified substances. Hunter's two year period of ineligibility began on August 26 2016, a period that he did not contest.

Nate Diaz
UFC Nate Diaz  Anti-Doping
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On 06 October 2016, prominent UFC fighter, Nate Diaz, received a formal public warning having admitted the use of prohibited substance, Cannabidiol, during the in-competition period (which is defined as being the six hours prior to the commencement of the scheduled weigh-in and ending six hours after the conclusion of the bout.

Cannabidoil is a specified substance in the class on cannabinoids and prohibited only in-competition under the UFC anti-doping policy.

Why just a warning?

USADA concluded that Diaz mistakenly believed that the in-competition period ended after he provided a post-bout sample to USADA. In addition, the in-competition urine and blood samples provided by Diaz before his admitted use were analysed and reported as negative for all prohibited substances, including cannabinoids. Based on that, USADA considered that a public warning was fair and appropriate.

Abdul-Kerim Edilov

UFC Abdul-Kerim Edilov Anti-Doping
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In October 2016, Edilev received a 15 month sanction having tested positive for meldonium following an out-of-competition urine test carried out in January 2016. Meldonium is a non-specified substance that was recently added to the WADA prohibited list, in 2016. It is in the category of hormone and metabolic modulators and is now prohibited, at all times, under the UFC anti-doping policy.

Why only 15 months?

USADA accepted that meldonium was prescribed medication that Edilov was taking in a therapeutic dose under the care of a physician and without the intent to enhance his performance. However, Edilov's use of meldonium continued after the substance was banned, and he required a Therapeutic Use Exemption (TUE) in order to avoid the UFC Anti-Doping violation. A sanction (albeit reduced) was still appropriate.

Where have I heard of meldonium before?

You may have heard of this substance, earlier this year in relation to Tennis superstar, Maria Sharapova, who also saw herself sanctioned (although that sanction was later reduced) for the use of the substance. You can read more about that here.

Ricardo Abreu
UFC Ricardo Abreu Anti-Doping
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American UFC fighter, Ricardo Abreu, received a two year sanction in July 2016 after he tested positive for 19-norandrosterone (above the decision limit of 3 ng/mL) and 19-noretiocholanolone following an out-of-competition urine test conducted on 03 June 2016. Both substances are metabolites of anabolic steroids prohibited under the UFC anti-doping policy. Abreu was also disqualified from all competitive results obtained on and subsequent to 03 June 2016, including forfeiture of any title, ranking, purse or other compensation.

The Future

The growing popularity of MMA continues to increase at an explosive rate and whilst the UFC continues to strive and profit, the same can't be said for the majority of fighters who continue to be exploited with unfair contract terms and low pay. Whilst the UFC is quite rightly building upon their safety regulations and integrity policies, they should also focus on sitting down with fighters to negotiate contracts that are in the best interests of both parties as it is only a matter of time before it will be challenged through the Courts.

In late November, it was announced that five UFC fighters were in the process of launching what will be known as the Mixed Martial Arts Athletes Association (MMAAA) with a goal of providing fighters with greater bargaining power when it comes to negotiating their legal rights with the UFC. It has been stressed that the Association is not a union but in reality, it may be the first step on the road to a fully-fledged union for MMA fighters.

IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

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