Regulation of MMA in the UK: Legal risks from the lack of regulation and effective licencing – Part 2Ben Sigler
In this 2 part series, Ben Sigler outlines the stark difference in the regulatory frameworks of Mixed Martial Arts (“MMA”) in the United States of America and the United Kingdom. In the second part of this series Ben examines the potential legal risks that arise from the lack of regulation and effective licencing in the UK.
The implication of which could impacts the commercial viability of the sport and, more importantly, athletes’ welfare and safety in the UK.
The present regulatory environment in the UK creates a range of legal uncertainties which give rise to a risk of potential criminal or civil liability for fighters, promoters, and third parties, primarily arising from the legal impact of the death or serious injury of a participant. Given the nature of the sport, and the present inadequacy of its regulation in the UK, such an occurrence is, sadly, inevitable.
Risks arising to MMA competitors arising from lack of regulation
Although there have been only a handful of deaths to date in MMA, 67% of those deaths have occurred in unsanctioned matches1. The most recent of these deaths in competition2 was that of Felix Pablo Elochukwu who died after an unregulated MMA bout on 7 April 2013.
UFC executive Tom Wright commented in relation to Mr Elochukwu: "What we don't know is whether or not there were any pre-existing medical conditions that Pablo was suffering from, and in a regulated environment, we would have known that… We also don't know if the referees were properly trained. We don't know whether or not there were the appropriate EMTs and ambulances and medical precautions in place. We don't even know if it was a fair fight as far as if the competitors were evenly balanced…Those are kinds of things we would know if the sport had been regulated, if the event had been regulated…It speaks to the importance of regulation in our sport, why it's important that we have the appropriate kind of rigor and standards, from medical care to pre- and post-fight medical testing to drug testing to insuring the health and safety of these athletes is always first and foremost. And in the case of an unregulated event, you don't know whether those things are in place."3
The current UK regulatory regime provides almost none of the safeguards which he sets out as fundamental to ensuring fighter safety, save in those promotions which have committed to voluntary oversight by SAFE MMA.
Legal implications arising from the death or serious injury of a fighter
Liability of an opponent
UK criminal law recognises a distinction between boxing and wrestling, on the one hand, and prize fighting,4 or other ad hoc fights, notwithstanding that the participants' aim in each instance is to inflict violent attacks upon an opponent. Any injuries inflicted during the ordinary course of a boxing bout are considered consented to by the victim unlike those inflicted in a prize fight, or ad hoc fight. Therefore they do not give rise to any potential criminal liability on the part of the opponent or third parties. This is by reason of a special, if unprincipled, exception to the normal operation of the criminal law founded on society's tolerance of boxing and public interest.5 However, there is no authority to the effect that combat sports such as kickboxing and MMA, are also covered by this exception. As former British Boxing Board of Control Secretary Simon Block noted:6
"The reason why boxing is not a criminal offense [sic] is because it has clearly defined laws. To my knowledge, [MMA] has not had a court case due to an injured fighter, so it's unclear what the legal position of these types of events are [in the U.K.]... if someone is injured or killed in one of these promotions, [legally speaking] that may bring its status into question."
Furthermore, the ambit of the exception is entirely unclear7. It does not relate to the consent of the fighters, as set out by Lord Templeman in R v Brown: "The conclusion is that a prize-fight being unlawful, actual bodily harm or serious bodily harm inflicted in the course of a prize-fight is unlawful notwithstanding the consent of the protagonists."
One of the factors which the UK Court considered of relevance in R v Brown was that boxing is a properly conducted sport which is administered under the Queensbury Rules. Given that MMA is, at present, unregulated it may be argued that it is not a properly conducted sport in the strictest sense. However, to the contrary, it may be argued that MMA events are considered "regulated entertainment" for the purposes of the Order and require a licence, and that it would be anomalous for licencing bodies to licence unlawful events. As noted above, absent a finding of fact in this regard by the UK Courts, it will remain uncertain whether or not the UK Courts would find that, in fact, MMA falls within the exception which applies to boxing and wrestling, and that therefore fighters, promoters, and other third parties are unlikely to be held to be criminally liable for assaults (or more serious offences against the person) occasioned in the ordinary course of an MMA bout, whether as principal offenders or accessories. This uncertainty should provide significant impetus for interested parties, particularly promoters, to push for the sport to be properly regulated, as this would, of course, support arguments in favour of the legality of a given event / bout, assuming that it took place in accordance with relevant regulations.
Even if the UK Courts were to find that MMA falls within the exception which applies to boxing and wrestling, which is by no means certain, there is still a risk that, in certain circumstances, fighters may take steps which may fall outside the ambit of the exception. For example, where a fighter takes steps outside the agreed rules of combat8, for example through their actions during the bout9, or where a fighter has taken PEDs without the knowledge of his opponent10. In such circumstances a fighter could arguably be criminally liable arising from injuries caused to his opponent (either for manslaughter, assault, ABH or GBH depending on the extent of the harm caused11), resulting in a conviction and potential imprisonment.
Liability of promoter
It is also feasible that, for example, if a promoter was aware that a fighter was using PEDs and allowed them to compete regardless of this fact without warning their opponent, they could be argued to be an accessory to any of the offences committed by them.
Furthermore, if a promoter failed, for example, to provide adequate medical assistance to fighters there is a risk that they could, amongst other things, be liable for:
- Corporate manslaughter (assuming that a fighter had died), pursuant to the Corporate Manslaughter and Corporate Homicide Act 2007, if the way in which its activities are managed or organised caused the fighter's death, and amounted to a gross breach of a relevant duty of care12 owed by the organisation to the deceased; and / or
- Breaches of Health and Safety legislation including Section 3 of the Health and Safety at Work Act 1974 which obliges promoters to conduct their business in a way that ensures, so far as is reasonably practicable, that others are not exposed to risk.
In competing in an MMA bout, assuming such a bout is in fact legal, a fighter will be deemed to have waived any right to recover a loss which he suffers arising from that bout (for prospective earnings and loss of chance which could be very substantial reflecting the scale of remuneration at the top levels of the sport) unless it was caused by an unfair act or foul play on the part of their opponent, as they have voluntarily assumed the risk of injury in participating in a bout13. However, in circumstances such as those highlighted in the examples already given, a fighter may seek to recover their loss from their opponent, the promoter, or other third parties.
Liability of opponent
In circumstances such as those set out above, a fighter who has suffered a loss may be able to make a recovery from an opponent by way of advancing a tortious claim for negligence in their opponent having breached a duty of care which they owed them by taking steps outside the agreed rules of combat14, or a tortious claim for trespass to the person.
Liability of promoter
Depending on the terms of a fighter's contract with a promoter they may be able to advance a contractual claim against the promoter in respect of a loss. They may also be able to advance claims in tort against the promoter for negligence in failing to, amongst other things:
- Undertake pre-fight medical testing, including testing for PEDs;
- To adequately train officials, or to establish safe rules of combat (particularly in circumstances where the promoter, and not a Governing Body, sets the rules of combat, as is the case in the UK;
- To adequately make matches between opponents of comparable levels; and
- To provide adequate medical facilities for competitors15.
- A promoter may also be held to be vicariously liable for the negligent actions of their fighters where those actions occurred during the course of the bout. In that regard, it should be noted that a promoter will not be exempt from liability in tort because a fighter's actions amounted to a crime, provided those actions were sufficiently connected with their employment by the promoter (which in the examples set out above they would be).
Criminal / civil liability of third parties
There are also, of course, potential liabilities which may arise from the death or serious injury of a participant for other third parties including, but not limited to venue operators16, emergency services, referees17, ringside physicians, cornermen and so forth.
Notwithstanding that the UK MMA scene is relatively under-funded, and under-regulated by contrast to its stateside sibling, if the UK Courts are presented with factual scenarios such as those considered above, it will not be open to Defendants to plead impecuniosity or ignorance of the law as a defence to criminal or civil proceedings brought against them.
Given that a serious injury to a fighter seems inevitable, those governing the sport and the competitors themselves, would be well served in taking steps to ensure that the current status quo is remedied, otherwise they may find themselves facing substantial civil liabilities and / or criminal convictions.
2 Sadly a Brazilian fighter, Leandro Santos, recently died cutting weight for Shooto Brazil 43 card in Rio de Janeiro. This is a subject I intend to cover in a future blog. https://www.mmafighting.com/2013/10/1/4787826/mike-dolce-on-recent-weight-cutting-death-i-was-heartbroken
4 R v Coney (1882) 8 QBD 534
5 R v Brown  1 AC 212
7 As is evidenced by the respective judgments in R v Coney and R v Brown.
8 See R v Canniff (1840) 9 C & P 359; R v Young (1866) 10 Cox CC 371; R v Barnes  EWCA Crim 3246. In such circumstances the UK Court will consider, in judging whether the conduct in question is criminal or not: the fact that conduct outside the rules can be expected to occur in the heat of the moment; the type of the sport; the level at which it is played; the nature of the act; the degree of force used; the extent of the risk of injury; and the state of mind of the alleged offender.
9 See, for example, Rousimar Palhares recent bout with Mike Pierce, in which Palhares refused to release a heel hook on Pierce notwithstanding that the referee's intervention to stop the fight which caused a serious knee injury to Pierce.
10 Although, per se, no specific rules may have been transgressed given the rules established by a given promotion, it may be said that his opponent's consent to participate in the bout had been obtained by deception and was therefore vitiated (see R v Clarence (1888) 22 QBD 23). However, factually such a case would be hard and expensive to prove.)
11 See R v Barnes where the Defendant was found guilty, at first instance, of GBH arising out of foul play in a football match, and R v Billinghurst  Crim LR 553 where the defendant was convicted of GBH for breaking an opponent's jaw with a punch in a game of rugby.
12 The existence of such a duty of care cannot be in doubt in light of Watson v British Boxing Board of Control Ltd  QB 1134 (as to which see below).
13 If MMA is, in fact, unlawful in the UK the fact that a fighter has consented to the risks entailed in a bout may not delimit them from recovering a loss at law.
14 See Cordon v Basi  1 WLR 866
15 See in this regard Watson v British Boxing Board of Control  2 WLR 1256 where the BBBC was found negligent for failing to provide adequate emergency facilities at a World Middleweight title fight. It was held that there should have been a ringside doctor present with the ability to administer a diuretic drug. By failing to institute rules requiring such a system to be in place, the BBBC was found to be in breach of its duties.
16 For example for breaches of the Assuming that the Licensing Act 2003, or pursuant to the Occupiers' Liability Act 1957.
17 See Smoldon v Whitworth and Nolan  PIQR P133 in which a referee was held to be liable in negligence for injuries suffered by a player arising from a collapsed scrum.
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- Tags: Governance | MMA | Regulation | United Kingdom (UK) | United States of America (USA) | Welfare
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About the Author
Ben Sigler is an associate in Stephenson Harwood LLP's dispute resolution team where he provides advice primarily in relation to contentious and regulatory matters to clients across a broad range of sectors.