Tag Archives: MMA

Is there a Place in the Octagon for Antitrust Laws?

December 18, 2015

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By Leah Seneviratne – Thompson Rivers University JD Student

If consumers are receiving the best product, is an alleged monopoly still harmful? American antitrust laws are in place to prohibit agreements that restrain trade and result in a monopoly. The intended result is the promotion of a competitive marketplace and protection of consumer welfare. However, monopolies in professional sports are rarely portrayed as harming consumer welfare. Rather, they have come to be expected of the most popular American sports leagues, evidenced in the domination enjoyed by the NBA, MLB and NFL. As a result, we are left with the question of whether antitrust laws should still have a place in professional sports businesses, if they still manage to produce the best possible product for consumers.

In a recent court decision, the Ultimate Fighting Championship’s parent company, Zuffa LLC, failed in their application to dismiss a class action lawsuit filed by various current and former fighters for allegedly anticompetitive business practices. The plaintiffs have brought their action under section 2 of The Sherman Act, and claim that Zuffa’s scheme has resulted in fighters being paid a fraction of what they would earn in a competitive Mixed Martial Arts market. As Dana White, the president of Zuffa, once stated, “There is no competition. We’re the NFL. There is no other guy”.

The alleged scheme of Zuffa was to directly acquire potential rival companies who were unable to compete profitably, as well as to impair competition by locking their professional MMA Fighters into lifetime exclusive contracts that bar them from working with up and coming MMA promotion companies. The scheme also included refusing to contract with any sponsor who agreed to work with an actual or potential MMA promotion rival, and requiring major physical venues to supply their services exclusively to the UFC. This greatly impedes the ability of potential UFC rivals to attract enough viewers and money to be profitable and avoid acquisition. The plaintiffs also allege that professional MMA fighters are deprived of an opportunity to make a comparable salary to those of boxers, or even NFL players, who at least have the benefit of multiple teams competing to acquire them.

What is noteworthy is that despite being part of one of the fastest growing professional sports, the latest Forbes’ list of the, “Top 100 Highest- Paid Athletes in the World” revealed a complete lack of professional MMA fighters, while boxers and soccer players dominated the list. Forbes Magazine reports the annual revenue of the UFC to be from $350-450 million, while they estimate the median fight payout for a fighter to be between $17,000 and $23,000.

So to answer the question, should the same antitrust laws be applied when it comes to the area of professional sports, where Zuffa is allegedly taking actions that result in a monopoly? In the end, the answer lies in the nature of the business practices. Section 2 of the Sherman Act is violated where there is monopolization, an attempt to monopolize, or combination or conspiracy with another person to monopolize a part of trade or commerce. It is behaviour that amounts to an exclusion of an actual or potential rival that is prohibited by The Sherman Act. If the allegations of the plaintiffs are correct, then we have a market in which a company with massive power and resources willfully obstructs competition. This type of exclusionary behaviour has allegedly resulted in a substantially increased difficulty of survival for competitors, as well as reduced bargaining power for professional fighters in contract negotiations. If the legislation clearly values competition and preventing the restriction of business transactions, then antitrust laws need to be taken seriously in the area of professional sports, in order to prevent the anticompetitive tactics that undermine them. The allegations facing Zuffa emphasize the necessity of antitrust laws in professional sports, which include preventing harm to both the competitor and the player.

 

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Antitrust in Mixed Martial Arts

December 9, 2015

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By Edward Hulshof – Thompson Rivers University JD Student

The UFC’s legal woes continue as the Le et al v. Zuffa antitrust lawsuit enters discovery. Zuffa, LLC (“Zuffa”), the corporate entity who owns the Ultimate Fighting Championship brand, has been the subject of staunch criticism for anticompetitive practices and the use of coercive adhesion contracts for several years. Zuffa recently lost a motion to stay document discovery proceedings – the document production obligations a part of the normal course of litigation – and with it, potentially, the shroud of mystery ensconcing its promotional and venue agreements with fighters and event hosts. If the antitrust lawsuit is successful, Zuffa could see fundamental reforms to its UFC brand and increased competition from market competitors such as Bellator MMA, a competing MMA promoter.

At issue is whether or not Zuffa’s business practices amount to “anticompetitive, illicit, and exclusionary acts,” which illegally acquire, enhance and maintain its dominant position in the market for promoting elite level professional MMA bouts as well as its control of MMA fighters. The Antitrust Class Action Complaint, filed December 16, 2014, (the “Complaint”) hinges on economic considerations, namely Zuffa’s control of “output markets,” that is, promoting MMA events, and “input markets,” fighter contracts.

The Complaint specifically alleges that “[t]he UFC has used the ill-gotten monopoly and monopsony power it has obtained and maintained…to suppress compensation for UFC Fighters in the Bout Class artificially and to expropriate UFC Fighters’ identities and likeness inappropriately.” This isn’t the first time Zuffa has been called to answer for its use of career suffocating fighter contracts.
Indeed, in 2008, well-renowned UFC fighter Ken Shamrock sued Zuffa for breach of contract when, it is alleged, Zuffa refused to extend Shamrock’s contract when he returned from retirement. (The court ruled against Shamrock, interpreting a key provision in the contract as providing Zuffa with the right to suspend and terminate the contract.)

More recently, Zuffa underwent intense media scrutiny when its confidential fighter contract with Eddie Alveraz was produced in a New Jersey lawsuit. The contract provided for extensive ancillary rights to Zuffa for the purposes of promoting the UFC brand and bouts. Additionally, and more troublingly, the contract granted Zuffa certain exclusive rights in perpetuity for promotional purposes, closing the door on Alvarez’s right to exploit and promote his own image outside the octagon and with other MMA promoters. Zuffa’s fighter contracts, it appears, choke the supply of inputs into competing MMA promoters.

It should come as no surprise then that MMA fighters are contemplating unionizing in an effort to strengthen their bargaining position with Zuffa and the UFC. The movement is a reflection of the repetitions of history, being reminiscent of the movement in boxing in the 90s which ushered in the Mohammed Ali Boxing Reform Act, legislation designed to rectify anticompetitive practices and coercive contracts between boxers and promoters. With Zuffa as the most powerful MMA promoter with a collection of fighters signing contracts with renewal options in favour of Zuffa, it is not surprising that many fighters are seeking to regain control of their careers. Zuffa, it appears, likes control. Even if the antitrust lawsuit is unsuccessful, it should serve as a signal to Zuffa to reform its contract practices and marketplace strategies ahead of the shifting balance in power that has been the source of tension between promoters and athletes for years.

 

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Can Weapons be Introduced into MMA Style Fighting Leagues?

December 1, 2015

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By Marshall Putnam – Thompson Rivers University 3L JD Student

Back in April 2015, a strange development occurred in the Russian M-1 Mixed Martial Arts (“MMA”) league. The league, in an effort to test audience reception, introduced medieval style fighting into the MMA arena. Rather than your typical MMA fight where two shirtless combatants pummel each other using punches and kicks, the combatants in this arena wore full body armor equipped with blunted swords and shields. The result: a gladiatorial battle between two knights reminiscent of Game of Thrones.

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The audience loved it, spurring the M-1 president to state they would pursue developing it into a full league with separate weight categories, provided they find enough fighters. Although this can be dismissed as a mere publicity stunt, it does pose a serious legal question: can weapons be added into MMA fighting leagues?

In some ways, the addition of weapons seems like a natural development in MMA leagues. After all, martial arts has a rich history of incorporating weapons. For example, the Eskrima style of martial arts is the national sport of the Philippines, and is known for emphasizing weapons-based fighting styles with weapons such as sticks, chained-sticks, knives, and daggers. The obvious issue presented by weapons, even blunted weapons, is the substantially increased likelihood of combatants causing serious bodily harm to each other.

The legality of combatants attacking each other with weapons may appear trivial in some regards. The obvious argument is that the fighters have already consented to engage in a fight, and with or without weapons, there is a risk of either fighter causing bodily harm to the other. The law has already contemplated this possibility, and deemed it legal in the circumstances. From this perspective, the legality itself of engaging in an organized fight has not changed. The only tangible difference is the manner in which combatants are permitted to harm each other; before they were limited to the natural extensions of their body (fists and feet), and now they would be permitted an unnatural extension of their body, i.e. a weapon.

The legal issue arises in the fact that the criminality behind inflicting an assault is increased when a weapon is added. Proof of this claim is found Canada’s Criminal Code, as there is a provision for basic assault (section 266) and another provision altogether for assault with a weapon causing bodily harm (section 267). The difference between the two provisions is that assault with a weapon bears a substantially higher period of incarceration of up to ten years. As it stands in Canada, inflicting an assault using a weapon outside the organized sport arena is treated markedly more severe.

If the MMA arena of sport functions as a shield protecting the combatants from criminal liability when assaulting each other without the use of a weapon, can this shield be extended to protect against criminal liability arising from assault with a weapon? There is evidence supporting the conclusion that it just might.

Consider fencing for instance. Fencing is a recognized sport where the combatants use swords against each other. A fencing sword is modified with the addition of a circular tip to prevent it from inflicting serious bodily harm, and is considerably light-weight. The combatants also wear protective gear, notably around their face, as an added precaution against receiving serious bodily harm. This suggests that combatants may use weapons against each other in an organized fight provided adequate precaution has been taken.

It follows that the legality of introducing weapons into MMA leagues likely hinges on the ability for the coordinators to prevent the likelihood of combatants inflicting and suffering serious bodily harm. In the Russian M-1 league the combatants used heavy-weight blunted swords. In an effort to nullify the increased likelihood of inflicting serious bodily-harm, the fighters wore full armor plating. There is a balancing act of ensuring the increased probability of inflicting serious bodily harm is countered by incorporating equally serious preventative measures.

Ultimately, the legality of introducing weapons into MMA leagues would likely come down to the ability of organizers to convince the courts that the safety precautions taken adequately address the increased ability for combatants to inflict serious bodily harm. Time will tell if MMA leagues opt to introduce weapon-based martial arts, likely following a profit versus risk-assessment. In the end, the fights themselves would surely be as entertaining as any legal battle that may ensue.

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Extreme Weight Cutting within the UFC

November 22, 2015

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By Azadeh Taghizadeh – Thompson Rivers University 2L JD Student

There has always been an issue within the sport of fighting that is so widespread that it is seen as part of the sport. It is the issue of weight cutting, and over the years athletes have gone to extreme and dangerous lengths to cut large amounts of weight in a short period of time. Many people have had serious complications from it, and some even have died. Given the seriousness of this issue, should there be any regulations against extreme weight cutting?

The World Anti-Doping Code offers some insight to an approach which may be analogous to the case at hand. WADA prohibits substances that fall within at least two of the three requirements: (1) Medical or other scientific evidence, pharmacological effect or experience that the substance or method alone or in combination with other substances or methods, has the potential to enhance or enhances sport performance; (2)…represents an actual or potential health risk to the Athlete; (3) … violates the spirit of sport. Weight cutting could be classified under the first two requirements.

Firstly, extreme weight cutting can enhance sport performance since those who cut weight end up being in weight classes that are much lower than their actual weight, which inevitably gives them an unfair advantage on actual fight day when they have gained their weight back, while the other opponent may be much closer naturally to that weight class. For example, Chris Weidman, a UFC fighter who fights at 185 pounds (lbs) under the middleweight division, is naturally 205 lbs, which should classify him for the heavyweight division.

Heavyweight class has one of the largest weight differences. It runs from 205-265 lbs. Most fighters who are at 225 lbs cut weight to make the light heavyweight class. Unfortunately for those who are around 235 lbs, it may be harder to cut enough weight to be in the light heavyweight division and they may potentially end up fighting someone who weighs 265 lbs. Those who are at 265 lbs may actually be 285 lbs and cut enough weight to be eligible for the heavyweight division.

Not only can this large gap be an advantage for the heavier opponent, but can also be a violation of the second WADA Code requirement that the method not represent an actual or potential health risk to the Athlete. Cutting such as large amount of weight in a short period of time can have ill effects on the athletes body, both psychological such as mood swings, hormonal imbalances and eating disorders, as well as physical such as dehydration and in extreme cases, death, due to a heart attack, stroke or kidney failure.

In 2013, 26-year old Leandro “Feijao” Souza, a Brazilian MMA fighter, died due to a stroke right before his weigh-in for a scheduled fight in Rio de Janeiro. He was to lose 33 pounds in one week, and according to MMAFighting.com, Souza was taking Lasix, a diuretic pill, which is prohibited under the WADA Code.

Recently, Johny Hendrick was hospitalized due to his weight cutting issues. He had kidney stones and intestinal blockage. He weighs around 200-215 lbs and was to cut down to 170 lbs for his fight.

Given the commonality and dire effects of weight cutting, steps are now being taken to start to control weight cutting within the UCF and other amateur fighting sports. The United States Anti-Doping Agency (USADA) has announced that fighters will no longer be able to rehydrate using intravenous (IV) methods. Also, within the amateur arena, Arkansas has been the first state or province within North America to enact weight-cutting rules. Arkansas State Athletics Commission has now stated in Chapter 1 of the Rules and Regulations of Extreme Rule to Reduce Weight Cutting in the Amateur Class of Combative Sports: “Any Amateur Combative Sports fighter shall not gain more than .075 (7.5%) of his advance weigh-in body weight, and in no case, shall any fighter be allowed to gain weight sufficient to move up more than ONE published weight class for his specific sport.”

Hopefully these regulations will be the start of controlling this transparent issue of weight cutting within the sport of fighting and the widespread habit will become controlled and less extreme.

 

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Juicers Beware – The Revamped NSAC and UFC Drug Testing Policies

November 11, 2015

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By Dan Hutchinson – Thompson Rivers University 3L JD Student

In the early summer of 2015 things got much more difficult for fighters in the UFC using PEDs. This is due not only to sweeping changes being made by the Nevada State Athletic Commission (NSAC) but also a revamped drug testing policy put in place by the UFC itself. The changes come on the heels of a failed drug test by long time middleweight champion Anderson Silva. Silva’s failed drug test came as a shock to UFC personnel and fans alike, and has caused many to question how rampant drug use actually is in the organization. Such concerns have prompted NSAC to enforce a complete overhaul on their drug testing program.

On May 15th, 2015 NSAC rolled out many new drug testing measures including heavily increased punishments across the board for all number of drug testing violations. Some of the changes regarding the use of illegal substances include: a 9 month ban for the first time use of any sedative, muscle relaxant or cannabis, a 2 year ban for a first time use of any stimulant (amphetamines, cocaine), and a 2 year ban for a first time offense of anabolic steroids. After the third or fourth offense of any of the illegal substances the ban is life. NSAC regulates competitions of unarmed combat in the state of Nevada. Since Nevada is the epicentre for combat sports, it has become the state commission in North America which other state commissions and sports bodies, including the UFC, have worked to emulate.

Not to be outdone by NSAC, the UFC made significant changes to its own drug testing policy shortly after the announcement of NSAC’s changes. The changes made by the UFC were headed by Jeff Novitzky, the organization’s new Vice President of Athlete Health and Performance. Previously, Novitzky worked with the US Internal Revenue Service and the Food and Drug Administration and played a large part in the Lance Armstrong investigation. Novitzky terms the UFC program to be “the best anti-doping program in all of professional sports” and will be overseen by the US Anti-Doping Agency (USADA).

The changes made by the UFC were very significant and funded by the UFC itself to a tune of “multiple millions of dollars” according to UFC CEO Lorenzo Fertitta. The program is modeled after the World Anti-Doping Agency (WADA) code and include: a 2 year ban for a first offense of non-specified substances as defined by the WADA code (anabolic steroids, HGH, peptides, blood doping drugs), a ban of 1 year for the first offense of a specified substance as defined by the WADA code (e.g. marijuana, cocaine), and a doubling of the ban with each subsequent offense. Additionally, aggravating circumstances such as egregious intent, conspiracy or agreements will be taken into account and could result in a stiffer penalty.

Both the UFC and NSAC’s changes include a stricter testing program and harsher punishments for those that fail these tests. However, some MMA fighters under the UFC banner have criticized these changes stating that even though they are harsher, it is still not enough and more needs to be done to protect the sport from PEDs.
Welterweight Matt Brown has argued the 2 year ban is not enough and believes there should be a minimum four year ban or, if he got his wish, a lifetime ban for first time dopers. This is due to the nature of the sport where serious injury is a very real possibility. Brown feels that one day someone in the UFC will be killed and if it is at the hands of a “known juicer” it’s going to be a much larger issue. He evocatively says, “I don’t want to be the dead one, because a motherf—-er was sticking needles in himself all day.”

Regardless of what Brown believes, USADA CEO Travis Tygart has applauded the UFC for its new program stating “the UFC has taken a bold and courageous leap forward for the good of its athletes in developing a comprehensive and cutting edge anti-doping policy expressly modeled on the key elements of the WADA anti-doping program and having it run by an independent and transparent national anti-doping organization.”

The new policies from both the NSAC and the UFC may seem harsh but when dealing with a sport such as mixed martial arts all care must be taken to ensure the safety of all competing athletes, not only the ones ingesting the PEDs but the others on the receiving end of the sport’s brutality. An unfair advantage due to doping in baseball could result in a ball travelling further but in MMA the result of doping could be much more severe when the entire sport involves inflicting pain on an opponent. Catching those who are using PEDs and banned substances is of the upmost importance in the sport of MMA and both the NSAC and UFC should be applauded for their new, revamped policies.

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UFC vs The Big Apple

December 2, 2013

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By Mac Green – Thompson Rivers University 2L JD Student

New York is known as a sporting state with nine professional teams that compete in the National Football League, Major League Baseball, National Basketball Association, National Hockey League and Major League Soccer. New York City’s Madison Square Garden also has one of the most celebrated histories of combat sports.MSG hosted eight of Joe Louis’s title defenses (1938-1951) and was the site of “the battle of the century” between Joe Frazier and Muhammad Ali (1971).For these reasons, it is obvious why the Ultimate Fighting Championship (UFC) would want to promote a fight in New York.And yet New York is the only state out of the 48 others that have Athletic Commissions that are still upholding their ban on professional Mixed Martial Arts (MMA) sporting events.

In 1997, New York passed a law that effectively banned professional combative sports by introducing s.5 in the Regulations of Boxing, Wrestling and Sparring.In the Regulations, combative sport is defined as “any professional match or exhibition other than boxing, sparring, wrestling or martial arts wherein the contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.” However, this legislation also seems to have left the door open for MMA to be legalized in the future by giving the New York Athletic Commission the power to “promulgate regulation which would establish a process to allow for the inclusion or removal of martial arts organizations.

The UFC was founded in 1993 with the goal of identifying the most effective martial art by having experts of unique disciplines compete in a cage fight. Unfortunately, in the beginning it was more of a spectacle than a sport only having three rules initially: no biting, eye gouging or groin strikes.

Although the UFC began in 1993, the modern era of the sport and evolution from spectacle to legitimacy began when the current owners, Zuffa LLC, bought it in 2001. Zuffa bought the UFC for only $2 million because the original owners were on the verge of declaring bankruptcy. Seven year later, the UFC was on the front page of Forbes magazine and the company was valued at nearly $1 billion.  Zuffa has also made huge contributions towards legitimizing the sport by instituting 33 new rules that govern combat within the cage.They have also fostered a worldwide expansion of the sport including a push for the education of the referees, doctors and fans. As a direct result of the sport’s legitimacy, the quality of athletes has also increased drawing in National Collegiate Athletics Association (NCAA) Division I wrestlers, ex-NFL players and Olympians. MMA has been referred to as the fastest growing sport in the world and has risen from obscurity to global powerhouse in just 20 years.

The UFC filed a lawsuit against New York at the end of 2011 because they claimed that the combative sport ban was unconstitutional based on seven different arguments. The UFC named Attorney General Eric Schneider and Manhattan District Attorney Cyrus Vance Jr. as defendants.The state filed a general motion for dismissal in response. 

Just over one month ago, Judge Kimba M. Wood of the Southern Federal District Court in Manhattan ruled that the UFC’s lawsuit would not be dismissed. Although this is a symbolic victory for the UFC, Wood J only accepted one of the seven arguments submitted. One of the arguments that Wood J dismissed was that the ban of combative sports breached peoples’ 1st Amendment right to “expressive conduct.” However, the UFC may still appeal the dismissal of this argument.

The argument that was upheld by Wood J was that the ban is unconstitutionally vague under the Due Process Clause of the 14th Amendment. He agreed that the state’s interpretation of the combative sports ban has varied significantly over the years in their comments and briefs, which gives weight to the UFC’s allegations of vagueness.

The COO of the UFC stated that these “inconsistency has cost the UFC considerable time and expense, but more importantly it has deprived MMA’s countless New York fans of the opportunity to have a new law on MMA, one that legalizes the sport and regulates it in a safe way, as all other states have done. New York’s law is outdated, written at a time when MMA was a very different sport.”

In my opinion, because the government has changed their interpretation of what the legislation actually means several times it should be struck down due to vagueness. And New York should finally pass MMA regulations so they can continue to foster their celebrated sports history. 

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Help or Hurt? Understanding Canada’s Bill S209 and Its Impact on MMA

October 21, 2013

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By Germaine Watkins – Thompson Rivers University 2L JD Student

Combative sports are growing in popularity in Canada. Pro mixed martial arts (MMA) has found a large audience in Canada. As of April 2012, the Ultimate Fighting Championship’s (UFC) four highest grossing box office events were on Canadian soil. However, up until June of this year MMA was illegal under section 83 of the criminal code. In spite of this, several provinces hosted MMA events turning a blind eye to the illegality of these events. Participants, promoters, organizers and spectators who attended these MMA events were subject to conviction under this section.

Recognizing this reality and in light of the growing popularity of MMA in Canada, the government passed Bill S 209 amending the Criminal Code.

There are several pros and cons to Bill S 209.

In a positive light, the new Code has created further clarity towards understanding what activities are considered prize fighting. The new provision expands the list of exceptions to the offense to include combative sports that fall under IOC designation. These features assist in drawing the line between sports and an illegal street fight.

On the negative side, Bill S 209 puts MMA in no man’s land in many provinces. Bill S 209 went to royal assent on June 19, 2013. In its wake, decision making power concerning the future of MMA has shifted to the provinces. Under the new law, MMA is excepted from criminal sanction, “where permission is granted by an athletic board, commission or similar body established under provincial sport legislation.” While this provision creates a pathway for the future legality of MMA, at present the provision has actually undermined the sport by removing the validity commissions previously set up under the authority of municipalities.

In Moncton, New Brunswick, the Moncton Boxing and Wrestling Commission has been the key body sanctioning MMA.The commission receives its authority from Moncton city by-laws. The by-laws exhaustivelyset out regulations governing various aspects of the sport from registration of fighters to fee schedules for officials.Although this organization has functioned effectively for several years, at the time of writing the Commission had suspended its activities.In the absence of New Brunswick legislation the Commission is without the proper authority to operate.

Earlier this year a similar situation arose in Weyburn, Saskatchewan. The municipality, under the Cities Act, sought to form the Central Combative Sports Commission for the sanctioning of MMA.However, before the Commission was finalized the Province stepped in and declared that such a move was in breach of the proposed amendments of the Criminal Code as the body lacked the appropriate authorization from the Province.

Bill S 209 has not only put MMA on hold in various areas, it has inadvertently stifled the development of the sport by criminalizing certain martial arts used in MMA. Under the new Criminal Code pro muay thai and pro kick boxing are not given the same exemption as MMA. This is particularly interesting as the techniques used in these sports make up a large part of MMA. A pro MMA fighter can execute a specific kick combination in an MMA fight, but performing the same moves in a pro kick boxing match is a criminal act.

Many MMA fighters improve on fundamental skills by participating in top caliber environment provided by pro kickboxing and pro muay thai matches.These matches provide the opportunities for fighters to develop specific skill sets found in MMA on a high level. As well, the growth of MMA has been partially fueled by the development of these sports. Fighters will often come to MMA leagues after a career in kickboxing or muay thai. By failing to give exemption to these sports Bill S 209 may turn out to stunt the growth, if not change the face of MMA.

While Bill S 209 may have been passed with the intention of championing mixed martial arts in Canada, to date it has had mixed results. With the revised Code centralizing decision making authority to the provinces rather than at a local level, it has had the unintended effect of creating a vacuum to the extent that provinces have yet to legislate athletic boards or commissions to oversee MMA. The future of MMA in Canada remains to be seen as provinces begin to regulate the sport and kinks of the new legislation are worked out.

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