29.1.19

The Regulation of MMA in the US & The Role of the UFC

Written with Tammi Gaw - read more about Tammi here.




The Ultimate Fighting Championship (UFC) is a professional mixed martial arts (MMA) organisation, headquartered in Las Vegas, and is the leading MMA promoter holding events globally and boasts some of the sport’s biggest stars amongst its roster. 

However, on 06 October 2018, the organisation hosted UFC 229 in Vegas which was a sold-out event with its headlining fight seeing Khabib Nurmagomedev defend his lightweight title against arguably the UFC’s biggest star, Conor McGregor. The event appeared to be following the usual and normal course, with nothing appearing out of the ordinary, when after the bout Khabib, unexpectedly, made his way across the Octagon leaping over the fence and attacking a member of McGregor’s entourage, causing a mass brawl to break out. The hysteria soon spread with McGregor being attacked from behind by a member of Khabib’s team, whilst still inside the Octagon. The melee was soon followed by cries of better regulation and security surrounding the events citing that innocent bystanders health and safety had been put at risk and fights between fans had spilled out onto the streets, as a result of high tensions. The disciplinary implications and immigration ramifications of the incident was also hot on the lips of MMA pundits.

How is MMA and the UFC regulated in the United States


The regulation of MMA in the United States saw its watershed moment in the early 2000s, when a number of US State Athlete Commissions held a meeting with numerous MMA promoters (including the UFC) in an attempt to standardise and unify the various rules and regulations that had been exercised by a number of different MMA organisations.

Following the meeting, a set of rules and regulations was agreed upon that would be rolled out in several states including New Jersey, Nevada, California, Ohio and Pennsylvania. For the purposes of this article and as the recent incident occurred in Las Vegas, the regulations as applied by the Nevada State Athletic Commission (The Commission) will be discussed. 

The UFC has been very active in lobbying for standardised regulations across the United States and uses the Nevada example as the gold standard for how the sport should be regulated. The Commission are considered to have the most complete, efficient and workable set of regulations due to the number of events hosted there and the UFC’s input during the drafting stages. 

The Commission regulates all MMA events including the licensing and supervision of athletes, promoters, trainers, ring-officials, ring-announcers, managers and matchmakers. No person may participate either directly or indirectly in any MMA contest, in the State, without first procuring a license from The Commission. 

On top of reviewing and granting licensing applications, The Commission has a number of other responsibilities including the collecting of fees from the sale of tickets, working with venues that are hosting events, imposing and ruling on disciplinary matters, providing arbitration for any disputes that may arise between parties as well as enforcing the regulations and Nevada State Laws. The Office of the Attorney General serves as legal counsel to the Commission. 

General conduct and regulation of MMA is governed by Chapter 467 of the Nevada Revised Statutes (NRS) and the Nevada Administrative Code. The Regulations are in place to not only ensure the rules of the sport are enforced but to protect the public and the welfare of athletes. 

Under NRS 467.119, the Commission may suspend or revoke an athlete’s license to participate if he or she:-

    • Enters into a contract or exhibition of unarmed combat in bad faith
    • Participates in a sham contest
    • Competes in or terminates a contest in a manner which is not based upon an honest competition of the skill of the athlete
    • Failure to give best efforts, compete honestly or give an honest exhibition of skills
    • Commit an act that is detrimental to the contest, including but not limited to any foul or unsportsmanlike conduct in connection with the contest
    • Failure to comply with the limitation, restriction or a condition placed on license

The Commission may also refuse a license on the grounds noted above. 

The disciplinary sanction can include the withholding of an athlete’s prize money or other money under NRS 467.135 as well as fines and suspension (including lifetime) depending on the severity of the violation and individual circumstances under NRS 467.158. The costs of the proceedings, investigative costs and attorney costs may also require to be met by the athlete. 

Further Regulations governing conduct and disciplinary can be found under the NAC 467.885 which provides the Commission with the power to suspend or revoke an athlete’s license to participant and impose further disciplinary action where an athlete has:-

    • Violated Nevada State Laws
    • Violated any provision of the NAC
    • Provided false or misleading information
    • Failed or refused to comply with a previous order of the Commission
    • Conducted himself/herself, at any time to place, in a manner deemed by the Commission to bring the sport into disrepute. 

NAC 467.886 casts its net far and wide by requiring that licensees refrain from engaging in any activity that brings the sport into disrepute, or from associating with any person/entity if that association brings the sport into disrepute.

The implications of the incident


This latest event will no doubt renew the cries for a central regulator and a consistent approach globally to misconduct and subsequent disciplinary action. The implications of the post-fight brawl could be felt far and wide and not just for the participants in the melee itself. The most obvious consequence is criminal charges for those who took part in the assault which was not a scheduled part of the fight and likely to attract the attention of the relevant authorities. Indeed, three members of Nurmagomedov were arrested after the event. It is unclear as to whether further action will be taken but it is reported that McGregor will not be pressing charges – however, prosecutors can take action without the permission of the victim.

Perhaps the most alarming feature of the brawl was the fact that the initial victim, Dillon Danis, was deliberately targeted whilst standing outside of the Octagon and in close proximity to the crowd where there was no safety perimeter, protecting innocent bystanders. There have been no reports of injuries out with either fighter’s teams, which is nothing short of a miracle considering the scale of the uncontrolled brawl. Had there been any injuries, claims for personal injury may have quickly followed against the perpetrators as well as potentially the UFC, the venue and any outsourced security firm for lack of adequate control, organisation and security. In bringing claims against the UFC and the venue, claimants would require to prove that there were a number of reasonable and practicable steps that could have been taken but were not, and the failure to take those steps resulted in the brawl leading to injuries. Had those steps been taken, the brawl would not have occurred and the injuries avoided. 

From a commercial point of view, “star” fighters will likely have a variety of sponsors and enjoy lucrative endorsement deals, however, at the time of accepting the endorsement or sponsorship they would have entered into contracts that may contain morality clauses, a breach of which would allow the brand to pull the plug on the deal. Such provisions have been exercised by sponsors in sports such as athletics and cycling following anti-doping scandals. However, given the nature of MMA, it has yet to be seen whether an unexpected, uncontrolled brawl following a scheduled controlled bout would be seen as adding to the excitement of the event (rather than damaging) and fuelling more interest in the fighters that brands sponsor.


Could the UFC be liable for conduct of fighters and what action can the organisation take against fighters? 


It should be noted that fighters are not employed by the UFC and therefore the organisation cannot be caught by vicarious liability rules, unless (in some jurisdictions anyway) it can be proven that the relationship is akin to employment. However, the organisation as above will likely find itself “on-the-hook” in relation to the organisation of the event. UFC fighters are considered to be self-employed, independent contractors. Each fighter will have their own negotiated contract with the organisation with star fighters holding more leverage to negotiate better terms in their favour. The contracts between the UFC and the fighter will refer to the fighter conduct policy which states that fighters must:

“conduct themselves in accordance with commonly standards of decency, social conventions and morals, and fighters will not commit any act or become involved in any situation or occurrence or make any statement which will reflect negatively upon or bring the sport into disrepute, contempt, scandal, ridicule, or disdain to the fighter or the UFC.”

A breach of the fighter conduct policy may result in fines, suspension and cessation of service. A fighter may also find themselves required to undergo clinical evaluation that may result in attendance on education programmes and/or counselling etc. Determination of the appropriate sanction will be based on the nature of the misconduct and other relevant factors including previous violations of the fighter conduct policy. It is understood that immediate sanctions, pending investigation may be imposed but unless the incident involves significant harm, a first offence will generally not result in immediate disciplinary measure until an investigation has been completed. However, it is unclear as to how regularly and consistency sanctions are imposed for breaches of the UFC fighter conduct policy. Cries from inside the organisation centre on allegations of favouritism and a culture where star fighters are treated more leniently than those still developing and rising through the ranks.

For instance, earlier in 2018, Conor McGregor was found guilty of attacking a UFC fighter bus in New York City (outside the jurisdiction of the Nevada Athletic Commission but dealt with by New York State) after a UFC press event. McGregor was charged and he pled guilty to one count of disorderly conduct as part of a plea deal which saved him from any jail time as well as visa issues for competing in the United States (although McGregor resides in Nevada). It appears that McGregor escaped any disciplinary action from the UFC despite their fighter conduct policy clearly catching such conduct and warranting action at the organisation’s discretion. It was postured that UFC could have sued McGregor, alleging that his behaviour interfered with UFC’s contractual obligations to fans that had already purchased tickets, but UFC did not pursue litigation against McGregor. 

Following the October 2018 incident between Nurmagomedov and McGregor, the Commission initially withheld the entire purse from Nurmagomedov. However, in October 2018, the Commission released $1 million USD of the total to cover expenses and team costs, pending final resolution of the disciplinary proceedings, originally scheduled for December 10, 2018. McGregor’s $3 million USD purse was released immediately, however the Commission admitted that they had not viewed the entire tape prior to releasing the payment. 

At the beginning of December, both McGregor and Nurmagomedov asked for, and were granted, continuances, meaning that there was to be no resolution to the matter until at least early 2019.  The Commission’s next meeting is scheduled for January 29, 2019, and it is reported that McGregor and Nurmagomedov have entered into a settlement agreement to be voted on by the Commission. The terms of the settlement agreements have not been disclosed. McGregor and Nurmagomedov’s return to the UFC is dependent on the resolution of these cases, which could result in additional fines and/or suspensions.  

There was suggestion that UFC wanted a rematch between the two fighters, confirmed when Dana White said that he thinks a lot of people “want to see that fight” and that he is working on staging it sometime in 2019.  For his part, Nurmagomedov has stated that he does not think McGregor deserves a rematch.  In sum, there is no indication that the UFC is interested in enforcing a strict code of disciplinary conduct if it precludes money-making fights, so the onus falls to the Commission to impose financial punishment or suspensions for McGregor and Nurmagomedov.  

Conduct of fighters outside the ring


Beyond the actions of fighters during sanctioned events, UFC faces criticism on a larger scale for recruiting competitors who already have problematic histories of misconduct. In 2014, then NFL player Greg Hardy was convicted of assaulting a female and communicating threats after his ex-girlfriend pressed charges against him, and was sentenced to 18 months probation. On appeal, the charges were dismissed after the woman could not be located and did not appear for the trial. Hardy was released by the Carolina Panthers and signed for the Dallas Cowboys in 2015, but was suspended by the NFL under the League’s Personal Conduct Policy after determining that failed to provide “complete and accurate information” during the investigation into the incident. In September, 2016, Hardy’s legal troubles continued when he was arrested on a cocaine possession charge. In October, 2016, Hardy began fighting as an amateur, and was invited by Dana White to fight professionally for the UFC in June, 2018.   As mentioned above, NAC 467.886 requires that licensees refrain from engaging in any activity that brings the sport into disrepute. 

According to UFC’s own Fighter Conduct Policy, released in 2013: 

"Fighters shall conduct themselves in accordance with commonly accepted standards of decency, social convention, and morals, and fighters will not commit any act or become involved in any situation or occurrence or make any statement which will reflect negatively upon or bring disrepute, contempt, scandal, ridicule or disdain to the fighter or the UFC.”

The Conduct Policy also states that discipline may be imposed for misconduct including “criminal offenses including…those involving…domestic violence and other forms of partner abuse” and “criminal offences related to performance-enhancing and prohibited substances.”

Certainly, Hardy’s legal problems prior to signing with the UFC would run afoul of the UFC’s own standards of conduct to which they purport to hold their fighters. In 2014, years before signing Hardy to a professional contract, Dana White stated "We've been human beings in letting these guys, other guys make up for what they've done and come back. There's one thing that you never bounce back from and that's putting your hands on a woman. Been that way in the UFC since we started here. You don't bounce back from putting your hands on a woman." And yet, not only did the UFC sign Hardy, they put him on the January 19, 2019 fight card with Rachel Ostovich, a fighter whose husband was charged with second degree assault for a November, 2017 attack against her. 

As regulation over MMA and the UFC remains unresolved, it is clear that fighter health and safety is just one element of what should be standardised regulations of the sport and of professional conduct. While each country and organisation will likely have their own policies, the legitimacy of professional Mixed Martial Arts depends on global continuity of safety and disciplinary regulations.


Organised labor and the quest for a union:

In the United States, the UFC pays fighters as independent contractors, and thus avoids certain obligations that are due other unionised athletes. Most important for athletes’ safety in the US is medical coverage, due to privatised health care, but organisations are also working to implement monthly stipends, and individual sponsor recognition on uniforms. Predictably, officials from the UFC have spoken out strongly against a fighters’ union, but fighters who feel that they get passed over for fights or cannot negotiate contracts in good faith continue to work towards collective bargaining agreements similar to what players associations have in other major professional sports, in the United States.  

Going forward - What now for the sport’s governance globally?


Despite the sport’s popularity with the masses, no organisation has emerged as an officially recognised global governing body for professional MMA but steps have been taken to attempt to further legitimise the sport, such as USADA’s UFC Anti-Doping Program in the United States. 

Regulation of MMA remains the highest and most sophisticated in the United States than in any other country in the world. All 50 states now recognise MMA as a legitimate sport with the relevant state commissions responsible for the regulation of MMA and hosted related events, as described above.

Steps are, however, being taken too at amateur level to regulate the sport with the International Mixed Martial Arts Federation (IMMAF) making strides at bringing legitimacy and recognition to the MMA, particularly across Europe, and is also supported by the UFC in creating a pathway from grassroots to professional level. 

Unfortunate events such as Joao Carvalho’s death in April 2016, following a bout in Dublin has caused the sport to fall under the microscope of governments that would not traditionally interfere in the regulation of sport. Carvalho died from acute subdural haemorrhage due to blunt force trauma. An inquest heard that he had taken 41 blows to his head with the final 9 blows going unanswered, as he slumped against the side of Octagon. There were also chaotic scenes when trying to transfer Carvalho from the event venue to the local hospital, due to crowding. A number of recommendations were made during the Inquest including that a national governing body be endorsed for MMA in Ireland and that that body should adopt the same safety standards as applied by boxing, with medical partners engaging nationally qualified paramedics. 

The Inquest led to the Minister for Sport in Ireland stating publicly that the MMA community in Ireland were deliberately “dragging their feet regarding governance and safety”. This was vehemently denied by the President of the Irish MMA Association, John Kavanagh (McGregor’s coach), who stated that his organisation’s recognition was being blocked by the Irish Government as a result of politics and that the IMMAA had done everything in its power to put itself in a position to be official recognised. 


Conclusion


Mixed martial arts has evolved significantly, since its underground days, into what is now a global sport with mass commercial popularity, enjoyed by millions of fans across the world. However, it is clear that there is still much to do in terms of its overall governance across all levels of the sport, including within the UFC at professional level.

Increasingly, there are more and more incidents reported that highlight gaps and inconsistencies within the sport’s governance regime across various areas including disciplinary and athlete welfare. A global governing body that is recognised by the sport both at amateur and professional level would be welcomed by many critics. Such an organisation could potentially be based in the US, where the regulation of the sport is at its most advanced, and be responsible for the drafting of regulations and policies that could be enforced across the sport globally. The introduction of such an organisation, however, is likely to be met with great resistance at professional level, by the UFC, who is likely to draw examples from organisations such as the NFL, MLS, MLB and NBA, organisations of which are not subject to the rules and regulations of their particular sport's global governing body.

In the short-term, a fighters’ union is increasingly more likely especially as the concept of collective bargaining is a common feature of professional sport, particularly in the United States. As more and more athletes complain of inconsistencies in treatment and lacking the bargaining power to negotiate reasonable contractual terms, the prospect of a union becomes more and more appealing. 

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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