Monday, September 21, 2009

Half Man, Half MMAmazing

[Editor's Note: Boxing Expert Paul Haberman Takes A Look at the Legal and Regulatory Risks Involved With Alternating Between a Boxing and Mixed Martial Arts Career]

On June 13, 2009, 48-year-old “Merciless” Ray Mercer, the former U.S Olympic gold medalist and once-proud owner of the best chin in the heavyweight division for at least a decade, had his name back in the combative sports headlines again following a crushing 10 second knockout of former Ultimate Fighting Championship heavyweight champion Tim Sylva. In doing so, Mercer became neither the first, nor the last, professional boxer to seek a career revival or financial boost from their participation in the wildly popular sport of MMA. Likewise, popular MMA fighters, such as Jens (Little Evil) Pulver, have made similar inroads into boxing in order to test the waters. Walking the line between the two sports, however, carries several potential risks, not just to an athlete’s well being, if they ultimately show themselves to be wholly incapable of making the crossover, but also to the legal relationships with his managers, promoter, and/or licensing athletic commission. A quick look at the possible pitfalls as to each follows.

Your Management & MMA

A standard form New York State Athletic Commission (hereinafter “NYSAC”) manager/ boxer contract provides, in relevant part, that “[t]he Boxer agrees to faithfully fulfill any contract for the rendition of boxing services, including training, entered into on his or her behalf by the Manager during the continuance” of their agreement. While this clause unquestionably covers all professional boxing matches that the boxer participates in, what if the boxer does not wish to box any longer, but instead pursue a career in MMA during the term of the agreement with his manager? If he has a good relationship with his manager, and the manager fully supports his effort to transition into MMA, the above clause could be understood as to cover MMA. However, if he knows that his manager does not second his interest in transitioning into MMA, but he begins participating in MMA contests without the manager’s prior knowledge or approval, things could ugly. That is because, although provisions such as those within the aforementioned clause only explicitly cover professional boxing, they also require the boxer to be physically ready and capable of participating in the professional boxing contests his manager obtains for him during the term of their agreement (if a separate clause does not explicitly state as much). This is generally reinforced by additional clauses, such as the one contained within the standard NYSAC agreement which provides that “[i]t is understood and agreed by and between the Boxer and the Manager that the services of the Boxer are extraordinary, exceptional, and unique.” In other words, getting yourself cut, knocked out, or otherwise injured in an MMA fight on the sly, or even participating in one in the first place, would very likely constitute a material breach of contract.

Your Promoter & MMA

A typical boxing promotional agreement includes language prohibiting a boxer from entering into an agreement that in any way would materially conflict with the promoter’s ability to promote the bouts provided for in the agreement. Like management agreements, many promotional agreements also expressly limit their services to professional boxing. However, it is almost certain that, in the absence of an express clause within the promotional agreement, or a written amendment or release from same, a sure fire way for a boxer and/or his management team to get sued is to enter him into an MMA bout during the term of a promotional agreement without the promoter’s prior consent. Think of it this way; promoters almost always have a specific reason or agenda for signing a boxer to an exclusive promotional agreement. If a boxer gets cut, knocked out, or otherwise injured in an MMA bout at an inopportune time, he may very well cost the promoter a lot of money, due to a lost television slot, championship opportunity, or chance to face an opponent who may help boost the boxer’s ranking.

A more detailed promotional agreement may also include, as many collective bargaining agreements do in team sports, prohibitions on participating in certain activities that may render you unable to perform your responsibilities under the terms of the agreement. Many times, this clause may include activities such as riding motorcycles and water skiing. However, it could easily be extended to cover MMA as well, due to the risk of injury involved. In short, be 100% certain that you discuss your intentions to participate in MMA with your promoter and work out a written agreement with them regarding your intention. Otherwise, you may find yourself shelved in both the boxing and MMA worlds as legal action ensues from your misguided endeavor into MMA.

Your State’s Athletic Commission & MMA

While the rules and regulations of few athletic commissions expressly address this issue as yet, there is a risk that competing in MMA in one state may put your boxing license at risk in another, or vice versa. Other than a general concern as to whether a participant in one truly has the requisite skill set for the other, an athletic commission may be concerned that licensing a boxer to compete in MMA may inadvertently provide the boxer a loophole in either another commission’s management agreement (such as the above referenced one that expressly covers only boxing), or in an exclusive promotional agreement. The creation of a loophole could either put the commission at peril for a lawsuit, or otherwise inject them in an interstate dispute over the status of MMA in their own state, if it is still outlawed in one of the states involved in the athlete’s career. Before seeking a license as a boxer or mixed martial artist in a state other than where you are currently licensed to compete in the other, therefore, you would be best served to contact the involved commissions, either through your manager or counsel, and fully investigate the implications of your desired transition.

And What About the Sanctioning Bodies?

While the explicit texts of the major sanctioning bodies’ bylaws and regulations are silent on the prospect of their champions and ranked contenders competing in MMA, logic dictates that the longer one remains inactive in boxing, the less likely he would stay in the rankings of a given sanction body. Further, if one of their champions fails to defend the title within the prescribed time frame or otherwise fails to meet his obligations as a champion because of his participation in MMA bouts, the sanctioning bodies have shown that they do not wait long to either strip a champion, change his status, or permit other ranked boxers to compete for an interim title.

Can I Avoid The Above Problems By Competing in MMA Overseas?

The short answer is no. While there are certainly opportunities for professional boxers to compete in MMA overseas, indeed notables such as Francois Botha and Eric (Butterbean) Esch have been fairly active on the international MMA scene, the fact remains that even if no one can necessarily stop you from competing overseas or take action against the promoters who stage such events in their various countries, your managers and promoters can take legal action against you in United States for your breach of their agreements if you do so without their prior approval. Promoters are especially difficult to get around by going overseas, as many times their agreements provide that they have worldwide rights to stage professional boxing contests for you, while some management agreements may be limited to the United States. A promotional company’s resources also tend to be a lot greater than any one given manager.

As can be gathered from the above noted obstacles, a transition from professional boxing to professional MMA is not something that a boxer and his management team should take lightly. Not only could it represent a sea change in your career and maybe your earning potential, but it can also lead to a number of prospective complications that could stall your career in both disciplines if not handled properly. Despite the temptation, therefore, a boxer’s transformation into an athlete that is half man, half MMAmazing can take appreciably more than just a couple of months or years of mixed martial arts training between your professional boxing contests.

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Punches After the Bell: Intellectual Property Rights of Boxers in the Balance: Boxers and their management teams should keep a close watch on the lawsuit recently filed by Fighters, Inc. against Electronic Arts in connection with the video game “Fight Night Round 4” in Federal District Court in Los Angeles, California. While the team sports have had a number of important court decisions in recent years regarding the intellectual property rights to the players’ names, likenesses, and statistics in various settings, the decentralized world of professional boxing has not. The outcome of this case will inevitably be the first serious step to clarifying those rights as to both individual boxers, and any group arrangements, such as Fighters, Inc., that boxers involve themselves in for the good of negotiating as a group for endeavors such as “Fight Night Round 4”…

Possible Exception Knocked Out Before The Ruling: It looks as if Edwin Valero’s opportunity to give a test drive to Nevada’s new regulations concerning head injuries has come to an abrupt halt, as he was recently denied a work visa following a DUI charge in the United States earlier this year. In the absence of any recent activity by heavyweight contender “Baby” Joe Mesi, therefore, it may be quite some now before Nevada has a boxer with any serious backing that can it put to the test regarding its new approach to prior head injuries.

[This article is also cross-posted on]

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. ©

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