Has the Mayweather-Pacquiao Drug Controversy Touched on The Cure for a Lack of Uniform Rules?

A Look Behind a Side Issue Raised by the Mayweather-Pacquiao Drug Testing Controversy: The Contracting for Testing That a Commission Does Not Require

Consider the following hypothetical situation in light of the lingering dispute between Manny Pacquiao and Floyd Mayweather over random drug testing. Following his dramatic back-to-back knockout losses to Carl (The Cobra) Froch and “King” Arthur Abraham, former undisputed middleweight champion Jermain (Bad Intentions) Taylor is a given a bout contract for his upcoming fight with Andre Ward that contains the following provision: “Parties agree that, in addition to the pre-fight medical examinations required by the California State Athletic Commission, the Parties shall submit to pre-fight medical testing identical to that which is mandated by the New York State Athletic Commission.” Taylor’s team promptly calls Ward’s promoter to ask why this provision is in the contract since California already has its own regulations for pre-fight medical examinations. The response: Ward is concerned that Taylor can be vulnerable to serious brain damage due to the nature of his recent knockout losses and believes that California’s pre-fight medical testing does not go far enough, as evidenced by the fact that Edwin Valero was cleared to fight in California on three occasions before evidence of an old head injury was found in a pre-fight CT scan in New York.

If the above hypothetical contract provision sounds unreasonable and/or unnecessary, then you may be one of those who agrees with Pacquiao’s position that if testing is not mandated by the Nevada State Athletic Commission (“NSAC”), he need not agree to it by contract. If, on the other hand, you believe that the above hypothetical contract provision is the end result of an appropriate abundance of caution, you may now be able to see how American boxing promoters can take it upon themselves to close the gap between the nation’s athletic commissions in pre-fight medical and drug testing: by compelling more thorough testing by contract. The current controversy between Mayweather and Pacquiao may have, in short, laid the blue print for how to insure the safety of boxers no matter where they fight in the United States. Boxing is abundant with skeptics however, thus this possibility begs the question: Is the contracting of more rigorous pre-fight medical and drug testing on a regular basis desirable, doable, and realistic? An analysis follows.

Why Would a Boxer Wish to Submit to More Rigorous Pre-Fight Testing?

Dateline: February 22, 2007, Mountaineer Casino Race Track and Resort, Chester, West Virginia. After a positive HIV test and nearly 11 years out of the ring, former heavyweight contender Tommy (The Duke) Morrison wins his highly controversial comeback fight against John Castle by second round technical knockout. Castle, then 4-2 (2 KOs), was a wholly unknown journeyman. As such, Castle’s management simply did not have the high card going into negotiations for Morrison’s comeback and thus likely could not insist on more rigorous pre-fight medical screening than West Virginia required. Indeed, there were probably several other journeyman heavyweights that were willing to put their fear about Morrison’s potential contagiousness aside if the pay was right and the bloodshed was minimal. Further, Morrison reportedly tested HIV negative on several occasions before the fight.

But what if, hypothetically, Morrison’s comeback did not come against Castle, but rather against heavyweight contender Ray (The Rain Man) Austin on a Don King-promoted card at Mountaineer? Against Austin, Morrison may have had the potential to make a lot more money than he would have against Castle and could achieve a world ranking in one fell swoop. Further, unlike Castle, Austin’s promoter Don King would have also had the leverage he needed to add a provision to the contract mandating that the two boxers submit to a full range of pre-fight blood tests by the Mayo Clinic. After all, King had the deep pocket and Austin had the world ranking. Morrison, looking to show the world that he was no longer HIV positive thus agrees to the testing, which goes above and beyond that which is required by West Virginia. Sure enough, he is still HIV positive and the fight is cancelled. Austin is thus spared exposure to HIV-tainted blood due to the specific provisions of his bout contract with Morrison.*

Putting aside the myriad of reasons why an Austin-Morrison fight probably would have never happened, the point is the same: Don King’s contractual provision in the above hypothetical would have spared his boxer exposure to HIV and provided him the protection he deserved as a professional boxer that West Virginia itself may not have provided him. Now consider if you want your promoter or manager to take similar measures for you the next time you are boxing in a state with a weak commission, even if it means that you have to undergo the same heightened testing.

Why Would a Promoter Wish to Contract for More Rigorous Pre-Fight Testing?

The answer to that is simple: Despite the inevitable extra costs involved in expanded pre-fight medical and drug testing, would you really want to be the promoter on whose card Taylor is left in a coma or someone contracts HIV from Morrison without feeling as if you did everything you could do to protect the boxers from such traumatic occurrences? Alternately, would you want to be the promoter that allowed his boxer to be beaten into premature retirement by a man who is reputed to use a performance-enhancing drug that is not tested for by a particular athletic commission? Certainly, the easier solution is to not put Taylor, Morrison, or the hypothetical steroid user on the card in the first place. But if the promoter decides to take that step, the extra money spent could literally be difference between life and death, and perhaps lawsuit or no lawsuit, while in the jurisdiction of an athletic commission that does not mandate the degree of testing needed.

Would a Commission Allow for Heightened Pre-Fight Testing by Contract?

The New York State Athletic Commission’s (“NYSAC”) rules and regulations mandate that several specific provisions must be in a given a bout contract and that the contracts as a whole must be approved by the NYSAC. The NYSAC’s rules and regulations do not appear, however, to proscribe the addition of additional drug testing or medical testing. Likewise, Keith Kizer, executive director of the NSAC, was recently quoted as saying that the Mayweather and Pacquiao camps can contract to do what they wish as to pre-fight drug testing, so long as their agreement also adheres to the NSAC’s rules. Both Nevada and New York, therefore, appear to use their own rules as a floor, and not as a ceiling, to the amount of medical and drug testing that can be done prior to a given bout. Thus, as long as a given athletic commission’s rules are not contravened in any way, it would appear that two boxers are free to contract to whatever they wish.

Is Contracting to Fill the Gaps in a Commission’s Regulations Practical?

This is an open question, since despite how much sense this would make in the big picture, it would fall to an extensive patchwork of regional, national, and international promoters to make a committed effort to close the gaps in a particular athletic commission’s rules and regulations for each fight card that they put together. Next, one would have to consider what affect self-interest, lack of initiative, and the budgetary constraints of some promoters may have on such a movement. One would also have to consider if such expanded testing would be done for every bout on every card, or rather just the bigger fights on a given card, and the potential holes that would leave as to the safety of all of the boxers on the card. And another consideration might be whether the boxers and their management would want to push for such measures on a regular basis, or whether they would just be happy to show up and get paid, no matter what hazards or hidden disadvantages that may face in a given bout.

One thing is certain, however; for all of the criticism that certain athletic commissions throughout the United States rightfully receive for their laxity in pre-fight medical and drug testing, the possibilities raised herein should at least be contemplated by the nation’s boxing promoters in order to avoid the type of scandals that could hinder its climb back into the mainstream. We all know that boxing does not have leagues, unions, or a collective bargaining agreement. But that does not mean that steps cannot be taken without a central body or government intervention to insure the safety of its participants and the fairness of its contests. The contracting for heightened testing could be one of those steps.

* Author’s note: It has not actually been reported that Morrison tested positive again for HIV since his 2007 comeback. That was asserted simply for the purpose of the hypothetical.

- Paul Stuart Haberman

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. He can be e-mailed at haberman.paul@gmail.com. ©

Inglorious Plasterers

A Look at the Laws and Loopholes That Allow Antonio Margarito and Trainer Javier Capetillo to Avoid Going Back Before the California State Athletic Commission to Reapply For Their Licenses

[revised from its original version]

January 24, 2010 marked the one-year anniversary of Antonio Margarito’s contribution to boxing infamy. Yes, it has now been over a year since former welterweight champion Margarito was caught with a Plaster of Paris-like substance on his hand wraps before his “WBA Super World welterweight title” fight with “Sugar” Shane Mosley and subsequently had his license revoked. Under the Rules of the California State Athletic Commission (the “CSAC Rules”), Margarito and his trainer Javier Capetillo, who also had his license revoked for his role in wrapping Margarito’s hands, may now re-apply for their licenses, though there is no guarantee that California will give them another chance to ply their craft in the Golden State. Rather than returning to California, therefore, it has been widely reported that Margarito may instead seek licensing in Texas for a bout with Carson Jones on the undercard of the March 13, 2010 bout between Manny Pacquiao and Joshua Clottey. If this offends your sensibilities as a boxing fan you might ask: What are the laws, regulations, and guidelines that allow for Margarito to obtain a boxing license without another dance with the CSAC? The answer follows.

California’s Law on the Re-Application for a Boxing License

In some industries, the revocation of one’s professional license in a given state would mean that a person was barred from participating in his chosen occupation for several years, or indefinitely, nationwide. Not so in boxing, and not so in California. Under CSAC Rule 399, a professional boxer who has had his license revoked can reapply for a license a year after said revocation. However, the reapplication process guarantees only that a boxer will get another opportunity to go before the CSAC to explain himself. It does not guarantee that he will be granted a new license. This uncertainty is what has spurred the talk that Margarito will simply take his professional credentials elsewhere and apply for a license to box in Texas.

Texas’ Administrative Rule on the Recognition of Another State’s Suspension of a Boxer

The licensing of professional boxers in Texas is governed by 16 Texas Administrative Code , Chapter 61, also known as the “Combative Sports Administrative Rules.” Under Combative Sports Administrative Rule 16.30(e), the Executive Director of the Texas Department of Licensing and Regulation “may recognize and enforce disciplinary sanctions, disqualification, or medical suspensions imposed by other combative sport authorities.” The use of the term “may” instead of “shall” in Combative Sports Administrative Rule 16.30(e) indicates that it is in the Executive Director’s discretion whether or not to recognize and enforce the disciplinary sanctions or medical suspensions imposed by another athletic commission. Despite this open-ended language, it should be noted that the federally enacted Muhammad Ali Boxing Reform Act mandates that individual boxing commissions establish procedures whereby a boxer suspended for “unsportsmanlike conduct or other inappropriate behavior consistent with generally accepted methods of competition in a professional boxing match” is permitted to box. The Act deems the term “suspension” to include a revocation of one’s boxing license. As discussed more below, it is also important to note that the revocation period is over, so what Texas allows itself to do with a given suspension during its duration is no longer at issue.

The Association of Boxing Commission’s Guideline on Out-of-State Suspensions

Under the Regulatory Guidelines of the Association of Boxing Commissions (the “ABC”), the quasi-governing body of professional boxing in North America, “[a]ll medical and administrative suspensions placed on contestants by other athletic commissions will be recognized by the supervising Commission.” Like Texas’ employment of the term “may,” the ABC’s use of the word “will” does not create a strong mandate that one state athletic commission must recognize the suspension of another. It should also be noted that the ABC’s Regulatory Guidelines are silent on how to handle the revocation of a license by another state athletic commission, though the Muhammad Ali Boxing Reform Act has that issue covered, as noted above.

How The Above Regulations and Guidelines Work Together to Margarito’s Advantage

The fact that Margarito is now allowed to reapply for his license in California is all some people need to hear in order to justify his applying for a license anywhere else in the United States. Did the crime, did the time. As indicated above, however, even if he was still being sanctioned by California, there is nothing in the explicit text of Texas’ Combative Sports Administrative Rules, or the ABC’s Guidelines, that would summarily disallow another athletic commission from issuing Margarito a license, though the federal Muhammad Ali Boxing Reform Act looms over each to compel recognition of such sanctions.

In fairness, many of the athletic commissions do their part to recognize the suspensions and sanctions of other states and disallow the boxers subject to them to come into their arenas. Some of the bigger commissions, such as those in Nevada, New York, and New Jersey, zealously provide reciprocal recognition to the suspensions and sanctions of other states, and may continue to disallow certain boxers from competing in their jurisdictions even after their suspension periods, depending on the reason for a given suspension or sanction. But in the absence of a uniform national mandate on sanctions and suspensions, as demonstrated by Texas’ Rules even in the face of the Muhammad Ali Boxing Reform Act’s provisions, there may always a commission somewhere that would license individuals such as Margarito and Capetillo, regardless of whether or not boxing’s inglorious plasterers were still facing sanctions in California and regardless of prospective challenges under federal law.

***

For more of the author’s coverage on the Margarito hand wrap affair, please see “Hands of Steal?” at http://sportsjudge.blogspot.com/2009/02/number-one-contender-hands-of-steal.html and “That’s a Wrap” at http://sportsjudge.blogspot.com/2009/02/number-one-contender-thats-wrap.html.


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. He can be e-mailed at haberman.paul@gmail.com. ©

A Quick Review of Legal and Regulatory Issues in Boxing from the Past Few Weeks

   Chavez Jr. Banned in the USA?:  Undefeated junior middleweight contender Julio Cesar Chavez, Jr. may find himself suspended by the Nevada State Athletic Commission for up to nine months following a positive test for Furosemide, a diuretic drug banned by the NSAC, after his bout with Troy Rowland on the undercard of the Manny Pacquiao-Miguel Cotto fight.   A formal complaint was filed against Chavez by the NSAC on December 1, 2009 and it is unknown to the author whether Team Chavez contested it within the 20 days mandated by the NSAC’s rules.  Either way, the suspension would not affect Chavez’s ability to fight in Mexico, where he is wildly popular.  Similarly, the revocation of Antonio Margarito’s license by the California State Athletic Commission earlier this year did not prevent Margarito from fighting in Mexico, where he too is wildly popular.  To date, however, Margarito has dutifully sat on the shelf and served his suspension.  Margarito will be able to reapply for a license in California early next year. 

   Minnesota Ice Nearly Iced Over Butler KO:  After initially being disqualified for knocking out Raphael Butler after the bell ending the first round of their all-Minnesota heavyweight battle on December 4, 2009, Joey (Minnesota Ice) Abell instead had a no contest placed on his record by Minnesota Combative Sports Commission.  Had the disqualification stayed on Abell’s record, he would have had 10 days to file a grievance with the MCSC.  The MCSC has a four-tiered grievance process designed to avoid such disputes from ripening into lawsuits.  After three levels of appeal involving the aggrieved boxer, his representatives, and the MCSC, the parties must submit to a binding arbitration by the American Arbitration Association.  Courts are generally hesitant to avoid to second guessing the decision rendered after a binding arbitration, as those involved generally agree beforehand that arbitration is how all disputes will be resolved…

   ABC Getting Restless with Natives of Isleta Tribe over Holm-Cisneros Fight:  Alleging that the Isleta Boxing Commission, host of the December 4, 2009 bout between female boxers Holly Holms and 11^th hour replacement Victoria Cisneros, may have violated the Professional Boxing Safety Act of 1996 by not having Cisneros submit to a full medical examination either before or after the bout pursuant to New Mexico rules, the Association of Boxing Commissions recently demanded a copy of the tribal resolution creating the Isleta Boxing Commission, as well as a copy of the rules adopted by the IBC once it was created.  The controversy arose after Holm was left without an opponent following the last-minute withdrawal from the fight of Melissa Hernandez.  While the IBC placed an indefinite suspension on Hernandez’s record for the withdrawal, the ABC indicated in its notice to the IBC that the suspension, as well as the results of any fights on December 4, 2009 card, would not be recognized by its member commissions until it gets satisfaction in the Cisneros situation.  As to the suspension in particular, it should be noted that such a threat is fairly toothless, since the ABC’s Regulations provide only that “[a]ll medical and administrative suspensions placed on contestants by other athletic commissions will be recognized by the supervising Commission.” (emphasis added).   The use of the term “will” rather than “shall” would appear to mandate only that a given commission notes the suspension, but does not necessarily bar a boxer from fighting under their jurisdiction as a result of same…

   Lucha Maravilla, but Miserable Scoring:  It seemed as if the ghost of Arturo Gatti welcomingly reared its head on December 5, 2009 in Atlantic City, as Paul  (The Punisher) Williams and Sergio (Maravilla) Martinez, the world’s premier junior middleweights, engaged in one for the ages at Boardwalk Hall.  After 12 fantastic rounds, an argument could have been made for either a draw, or a one or two point decision for either contestant.  That is, of course, unless you were judge Pierre Benoist, who inexplicably had the bout 119-110 for Williams.  Like the scoring in Funeka-Guzman a week or two earlier, Benoist’s card infused unnecessary controversy into an exciting battle.  Since there was generally no issue with Williams being declared the winner, and no championship belt was on the line, no formal appeal of the decision was made to either any of the sanctioning bodies or the New Jersey State Athletic Control Board.  However, do not be surprised if Benoist ends up the big loser on New Jersey’s scorecard and is not seen near a big fight again any time soon.  Sometimes, even with no legal recourse, punishment can be meted out for a boxing official’s perceived, or actual, misdeeds.  For example, anyone recall seeing referee Octavio Meyran after Don King’s claim of a long count for James (Buster) Douglas after his knockout of Mike Tyson?…

   Replay, By Any Way Alert:  While it did not end up making a difference to the outcome of the December 12, 2009 rematch between top junior welterweights Paulie (Magic Man) Malignaggi and Juan (Baby Bull) Diaz, Malignaggi was credited with a questionable knockdown in the 10^th round after a cuffing right hand behind the head may or may not have caused Diaz to touch his glove to the canvas.  Illinois, like most jurisdictions, does not provide for instant replay in boxing, so in a closer fight (all three judges scored it 116-111 Malignaggi this time), things might have gotten controversial for the second time in as many fights, though perhaps it would have been Diaz launching the memorable post-fight tirade this time…

   More Iciness Over Minnesota Officiating:  Like Joey Abell earlier in the month, formerly undefeated welterweight prospect Said (The Messenger) El Harrack, now 8-1 (3 KOs), may have an opportunity to file a grievance regarding the outcome of his Shobox-televised December 18, 2009 bout with fellow prospect Lanard Lane, now 10-0 (7 KOs).  As of the date of this article’s writing, El Harrack’s team has eight more days to grieve the timing of referee Mark Nelson’s second round stoppage of the fight in favor of the aggressive Lane. Lane had already dropped El Harrack twice in the previous round.  Unlike Abell-Butler, this is simply a matter of a referee using his discretion, however poorly, rather than an issue of who heard what and when. The thought here then is, if any grievance is made, El Harrack will be unsuccessful, but perhaps Nelson may find himself on the sidelines for a moment, though perhaps not as long as Pierre Benoist finds himself on the bench after his scoring in Williams-Martinez…

   Rainmakers Among Haymakers Alert:  In the main event of the same card as Lane-El Harrack, two popular Maryland-based middleweights Fernando Guerrero and Jesse (The Beast) Nicklow engaged in an excellent bout…in Minnesota.  While it is understandable to hold such a fight where it is most amenable to being televised, this bout probably would have been a sizeable ticket seller in the Baltimore area, where each of their fan bases could have turned out in droves to support their men…

   Rigondeaux Shows He Does Not Have the Luck of the Irish: Irish boxing manager Gary Hyde recently secured a judgment against Cuban amateur legend turned undefeated bantamweight prospect Guillermo Rigondeaux over his management rights.  Hyde had signed an exclusive management agreement with Rigondeaux around the time of his ultimately unsuccessful 2007 defection from Cuba.  When he finally did defect later, Rigondeaux signed a management agreement with GSMG, Ltd and Marcus Concepcion and turned professional under their guidance. A major hurdle to this establishing Hyde’s case was whether the Florida courts would recognize the management contract, as it was not entered into under United States law.   Once the arbitrator ruled that his management contract should be recognized, however, little question appeared to remain that Hyde was entitled to enforce his contract.  Hyde will now be Rigondeaux’s manager of record until at least March 19, 2012.

      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.   He can be e-mailed at haberman.paul@gmail.com. ©

How "Rush Hour" Can Appeal the Decision in the Guzman Fight

On November 28, 2009, two Canadian boxing judges with limited experience in world title fights became the boxing world’s buzz kill from the high it was experiencing following the Pacquiao-Cotto welterweight title fight, a boxing match that reinvigorated the mainstream media’s interest in professional boxing.  After 12 largely one-sided rounds at the Pepsi Coliseum in Quebec City, Quebec, it was almost universally believed that the coronation of a serious contender for lightweight supremacy and the crowning of a new IBF lightweight champion, South Africa’s Ali (Rush Hour) Funeka, 30-2-3 (25 KOs), would be made official upon Michael Buffer’s announcement of the decision in Funeka’s fight with Joan Guzman, now 29-0-1 (17 KOs).  Instead, judges Alan Davis and Benoit Roussel took it upon themselves to add another entrant to the discussion for worst decision in boxing history by scoring the bout a draw, while a third judge, Joseph Pasquale, rightfully scored it as a victory for Funeka.  The result: a majority draw.  The live crowd, the HBO team, and Funeka’s promoter were aghast, as was most any one who watched the fight.

In the days following the Funeka-Guzman fight, calls were made for an investigation into the judging and comparisons were drawn between Funeka’s plight and the infamously heinous decisions in Lennox Lewis vs. Evander Holyfield 1 and Pernell Whitaker vs. Julio Cesar Chavez.  Other than an investigation, however, the question is begged as to what is the most immediate remedy that Funeka can seek? The answer is an appeal to the International Boxing Federation, whose vacant title Funeka and Guzman fought for, pursuant to its Rules Governing Championship Contests (hereinafter the “IBF Championship Rules”).

The Official Grounds for the Appeal

IBF Championship Rule 12(A)(3) provides that a boxer may file an appeal of the decision of a championship contest in the event of “[m]isconduct on the part of the judges or referee which is alleged to have had a material effect on the outcome of the fight[.]”  It should be noted that the judging of Funeka-Guzman was not the only thing that could have or did have a “material effect” on the fight.  Guzman also sustained a bad cut over his right eye in the fourth round, which was ruled by the referee as being caused by a punch.  However, replays appeared to indicate the cut came from an accidental clash of heads.  Had the fight been stopped due to that particular call, it would have been Guzman who suffered a travesty that night in Quebec in the form of an erroneous TKO loss.

The Necessary Elements of the Appeal

Within the written appeal, a boxer “shall list with specificity the alleged discrepancy/ ground for Appeal and/or infraction of a rule of the IBF/USBA and explain the effect of said infraction or claimed discrepancy on the [boxer].”   IBF Championship Rule 12(C).  In order to “list with specificity” the alleged grounds for appeal in Funeka-Guzman, one would have to go through a round-by-round analysis of why Funeka should have been given rounds that he was not given on either Davis’ or Roussel’s scorecard, explain why said rounds were incorrectly scored, and explain either how the scoring as a whole had an effect on Funeka, or how each wrongly scored round had an effect on Funeka.   While not an easy task, the one drafting such an appeal can point to a video of the fight itself as evidence, as well as the scoring of the third judge, and perhaps the scoring of HBO and the press to aid in making an initial showing that a given round was likely erroneously scored.

Time is of the Essence

Under Rule 12(B) of the IBF Championship Rules, “[a]ll Appeals shall be in writing…and shall be sent to the President of the IBF/USBA within ten (10) days from the date of the subject fight or any alleged infraction of the rules.”  Funeka thus has until December 8, 2009 to file a written appeal to the IBF. 

A Venture Before Any Gain

In order to get a hearing before the IBF Appeals Committee, a written request must be submitted “and accompanied by a certified check payable to the IBF/USBA in the amount of $10,000.00 to cover the expense of such a hearing.”  IBF Championship Rule 12(D).  After receipt of the $10,000 by the IBF President, “the President shall notify the complainant of the time, place, and date set for the hearing.   The President shall further provide all interested parties with a copy of the written appeal and inform them of the time, place and date of the hearing.  All interested parties may be heard at the hearing.”  Id. at Rule 12(E).  In other words, if Team Guzman believes that the majority draw was a correct and/or reasonable outcome, it is entitled to send attorneys and others to speak on that position at Funeka’s hearing.

Time Frame for the Second Decision on the Outcome of the Fight

Under IBF Championship Rule 12(G), Funeka would be “notified in writing of the result of the hearing within ten (10) days of the hearing.”  If, at that time, Team Funeka is dissatisfied with the IBF’s decision, it may then a file a lawsuit within the State of New Jersey.  IBF Championship Rule 15.

For the good of professional boxing in a time when it is regaining traction in the mainstream media, here’s hoping the IBF does the right thing if presented with an appeal, and grants Funeka the lightweight championship.  Even a mandated rematch would be a travesty, given how thoroughly Funeka dominated Guzman.

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Punches After the Bell: MMAssachussetts: Massachusetts recently became the 42nd state to legalize mixed martial arts.  While there was some noise earlier this year about New York slowly coming around, it does not appear imminent at this time that New York will be state number 43…Goossen Turns off Toll Road Back to Ghost Town: In late November, it was reported that Golden Boy Promotions and Goossen-Tutor Promotions reached a financial settlement that allows Golden Boy to retain promotional rights to junior lightweight champion Robert (The Ghost) Guerrero…Morals Clause Alert in Colombia:  Lightweight contender Aristides Perez, 16-1-1 (9 KOs), three weeks away from a bout for the interim WBA lightweight title, was recently arrested for extortion in Colombia.  Perez’s manager and promoter now have some decisions to make, notably how much more money they wish to throw behind someone who could be facing several years in prison upon conviction. Hope they each have either a moral clauses that allows him to release Perez, or a tolling provision that stops the time from running on the contract until his legal situation is cleared up…Replay, By Any Way Alert: As discussed above, the referee in Funeka-Guzman ruled a serious cut sustained in the fourth round by Guzman was caused by a punch, though replays indicated that it was likely caused by an accidental head butt.  Quebec, however, does not provide for instant replay in professional boxing, so the result would have been a TKO loss for Guzman in the event that he was unable to continue due to that particular cut.

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.   He can be e-mailed at haberman.paul@gmail.com. ©

This post also available at 8countnews.com

Toll Road Back to Ghost Town?

[Editor's Note: Boxing Expert Paul Haberman Takes a Look at How Goossen-Tutor Promotions May be Able to Find Its Way Back to Promoting Robert (The Ghost) Guerrero Through Tolling Provisions]

Fresh off a dominant 12 round performance against Malcolm (Stone) Klassen on August 22, 2009 for the IBF super featherweight title, highly regarded American super featherweight Robert (The Ghost) Guerrero, 25-1-1 (17 KOs), walked into another high stakes fight against an opponent that has a far better chance of derailing Guerrero’s career than Klassen ultimately did. The opponent: Guerrero’s former promoter, Goossen-Tutor Promotions, LLC (hereinafter “Goossen”). According to media reports, Guerrero signed a five-year promotional agreement back in 2003 that made Goossen his exclusive promoter until May of 2008. However, during the course of the Agreement, Goossen and Guerrero apparently ran into several problems with each other. The end result of their problems was a December 15, 2008 California State Athletic Commission arbitration award that terminated the promotional agreement between the two parties. Three days later, on December 18, 2008, Guerrero entered in a promotional agreement with Golden Boy Promotions (hereinafter “Golden Boy”).

Within a matter of months, however, the promotional relationship between Guerrero and Golden Boy was disrupted when Los Angeles Superior Court Judge Robert H. O’Brien vacated the December 15, 2008 arbitration award. The ruling, handed down on September 29, 2009, a month and a week after one of the most significant wins of Guerrero’s career, left his promotional status in limbo. From Goossen’s point of view, the vacation of the arbitration award means that it remains Guerrero’s promoter. However, the Guerrero camp’s position is that the Goossen agreement has now expired on its own terms and that the O’Brien decision thus has no effect on the validity of the Golden Boy agreement. The inference is that Guerrero is holding Goossen to a strict reading of their agreement: If it commenced in May of 2003, it terminated in May of 2008. This reading, however, may ignore any number of tolling provisions that might have been written into the agreement that would allow Goossen to extend the term of the agreement upon the occurrence of certain events. An analysis of this possibility follows.


What is a Tolling Provision?

A tolling provision in a contract is a provision that, if its conditions are met, suspends or interrupts the term of an agreement. In boxing, a typical tolling provision allows a promoter to extend the term of its promotional agreement with a boxer in the event of a postponement of a given fight, or in the event that the boxer becomes injured, suspended, or permanently/ partially disabled. This provision is placed in a promotional agreement to help ensure that the promoter has every opportunity to get a return on its investment in a boxer no matter what happens during the term of their relationship. It can have advantages for the boxer too, as it makes certain that he has someone to continue his career with following injuries, personal troubles, suspensions, and other events that keep him out of the ring for appreciable lengths of time. In a sport that contains no league, no player’s association, and few certainties, a tolling provision could mean a preserved opportunity to explore the full potential of a boxer’s career no matter what happens in his life.


How Might Tolling Provisions Factor Into Guerrero’s Situation?

It has been no secret over the past two years or so that Guerrero’s personal life has been in turmoil, as his wife has been battling leukemia. Various news reports have indicated that Guerrero may have taken appreciable time off from training to be by his wife’s side while she received treatment. From the public’s point of view, Guerrero is an admirable family man that is willing to put his personal life before his career. While Goossen might think the same way, and appreciate the presence of such a morally upstanding athlete in its stable, the time off could mean something else to it as well, depending how their agreement is phrased: Guerrero’s promotional agreement was tolled by his family problems. In addition, there may have also been any number of training injuries and other reasons that Goossen saw fit to exercise its tolling provisions. Media reports are unclear on this possibility. Whatever the case, if Goossen continues to allege that it has a valid agreement with Guerrero, they are effectively alleging that a combination of factors contributed to a tolling of their promotional agreement, be it Guerrero’s family time, or injuries, or the arbitration and the time it took to appeal the same.

On the flip side, Guerrero not alleges that the agreement lapsed on its own terms by December of 2008, but also that Goossen failed to get the contracted number of bouts per year for Guerrero, failed to obtain a good faith offer of a bout for Guerrero for more months than agreed to in the agreement, failed to pay Guerrero his contractual minimum purse for his bouts against Spend Abazi and Eric Aiken, and violated the Muhammad Ali Act’s provisions on financial disclosures. While the claims on both sides may be putting them on a crash course to a terrific pissing match with one another, this matter, if its truly about applicable tolling provisions, may come down to little more than whether Guerrero was given proper notice by Goossen that it was enforcing the tolling provisions throughout the contracted term of their agreement. If it turns out that Goossen gave proper notice, and that the tolls that it alleges are cognizable under the terms of the agreement, it may be well on its way down the toll road to making its return to The Ghost’s part of town.

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Punches After the Bell: Kirkland May Survive Shot to Glass Jaw. Following Tysonesque junior middleweight contender James (Stone Cold) Kirkland’s recent receipt of a two year federal prison sentence for purchasing a gun at a gun show while under probation for a felony conviction, his promoter Oscar De La Hoya indicated that he would stand by his man and be there to promote Kirkland at the completion of his sentence. While it is unknown to the author whether Golden Boy placed a morals clause in its agreement with Kirkland, which would have been a sound move given his criminal record, De La Hoya’s pledge is a perfect example of the discretion that a promoter generally reserves for itself under such a clause. Moral of the story: the violation of a morals clause may not necessarily mean the death knell of your career, especially if you have the punch to set your weight class on fire. For more on morals clauses in boxing, please see the author’s previous story on morals clauses in boxing, available Here.


[This article is also available at: http://www.8countnews.com.]


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. ©

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 www.8countnews.com]

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. ©

Boxing and Morals Clause: Throwing Stones When Living With a Glass Jaw?

[SportsJudge's Paul Haberman takes a look at the arguments for and against the placement of Morals Clauses in boxing management and promotional agreements]

Allow me to take you on a trip back in time to April 1, 1993. The United States Senate’s Subcommittee on Investigations is conducting a hearing on the connections between organized crime and boxing as part of its goal of creating a federal regulatory body to oversee the sport in the United States. At the witness table is Salvatore (Sammy the Bull) Gravano, former underboss to legendary Gambino family leader John Gotti. Within a matter of a few hours of testimony, Gravano links several prominent members of the boxing establishment to the Gambinos and other La Cosa Nostra groups throughout the country. Although no wrongdoing is alleged by any of the individuals identified, their names are now linked in the international press to America’s gangland.

Now imagine that you are an undefeated young prospect that is managed or promoted by one of the named individuals and pride yourself on a squeaky clean, all-American image. After all, it is less than a year after Oscar De La Hoya did the United States proud at the 1992 Olympics, so its en vogue to be an all-American type in boxing. And imagine further that you had no idea that your manager or promoter was linked to people like Gravano. Horrified, you contact a local attorney and ask him to review your management agreement and see if there are any provisions that would allow you to terminate the contract with your manager if he did something that could bring you ill-repute and cause your fans to second guess you and your cuddly, well-cultivated image. The attorney finds nothing that suggests that possibility. So what do you do when your agreement is up and you want to address this issue with your next manager or promoter?

The answer, perhaps, is negotiating for a morals clause in your next management agreement. A typical morals clause gives one or both parties to a given contract the option of terminating the agreement in the event that the other party does something to either bring ill-repute to himself, such as being charged with or convicted of a crime, as Mike Tyson was in the early 1990s, or otherwise does something to sully the other party’s name or image, such as make highly controversial or otherwise offensive remarks in the press, as Australian super middleweight contender Anthony (The Man) Mundine did several years ago in regard to the September 11 attacks. However, requesting such a provision in an agreement that does not originally contain one could open some unexpected and potentially economically ruinous doors, as one day it could be you in the wrong place at the wrong time, or photographed with the wrong person. With that in mind, a look at that pluses and minuses as to the core parties involved in the negotiation of boxing contracts follows.

A Morals Clause for the Boxer’s Benefit

Let’s take our horrified friend from up above and see what can happen if he asks his next manager for a morals clause in his agreement. Suppose an attorney for the manager comes back to All-American Boy and says, “Sure, we’ll allow you to add a provision whereby you can terminate the agreement is your manager is arrested, but we want the same provision to cover your actions as well.” Content that his manager agreed to it and knowing that he does not put himself in position to get arrested in his every day life, All-American Boy agrees to this bilateral morals clause. Three months later, following a guest appearance at a local university, All-American Boy decides to accept the invitation of a fraternity to attend a party of theirs. Long story short, All-American Boy is photographed as “Iron” Michael Phelps and is later arrested for drug possession and underage drinking when the fraternity party is raided following a noise complaint from the neighbors.

Upon finding out of his arrest, All-American Boy’s new manager has some decisions to make. Does he release his prized prodigy after he was photographed smoking marijuana and arrested? Does he stay on board and simply help All-American Boy in his public relations campaign following his arrest? Whatever the outcome, the fact of the matter is that All-American Boy would not have been at peril of losing his management agreement if he hadn’t said anything in the first instance about a morals clause. Now he is at peril of losing the monthly stipend and the savvy negotiating skills of his manager that came with his management agreement.

On the flip side, what if All-American Boy’s manager is arrested on felony charges? Although the manager is released on bail, he is facing 10 years in prison if convicted, and the management agreement lasts through at least three of those years. Perhaps All-American Boy can call the state athletic commission that has jurisdiction over the management agreement and tell them what happened. The athletic commission may invalidate the agreement on the arrest alone, but that’s not certain. Boxing is full of people with criminal records, including many that have had productive careers in boxing since their incarcerations, such as Bernard Hopkins, Jameel (Big Time) McCline, and Don King. In the alternative, All-American Boy does have that morals clause in his agreement, so with a written termination notice he can now be free and clear to pursue a new management team if he so chooses.

A Morals Clause for the Manager’s Benefit

Let’s take a manager’s worst nightmare from the pages of the boxing tabloids: Clifford (The Black Rhino) Etienne. One day, Etienne, 29-4-2 (20 KOs), was a manager’s dream: a heavyweight with an exciting, fan friendly style who got a lot of opportunities for big fights because he’s a vulnerable, but entertaining, name opponent. The next day, Etienne was arrested after robbing a check-cashing store, carjacking a vehicle containing a woman and her child, and attempting to gun down a police officer. His sentence: 150 years in prison without the possibility of parole. But what if the facts were a little different? What if Etienne had not had a prior felony record and the court considered the fact that he was high on cocaine at the time? New sentence: two years, and five years of drug counseling. Now pretend that you are Etienne’s manager, and have three years remaining on the contract at the time of his sentencing. Etienne calls you upon his release and asks you to begin seeking out a comeback fight. A morals clause in your management agreement allows you to terminate the agreement upon a conviction on criminal charges. You thought that might be a smart thing to add, given Etienne’s previous incarceration. What do you do?

On the one hand, perhaps you can release him without a second thought. Etienne has now shown himself incapable of staying on the straight and narrow, even with a lucrative professional boxing career. In addition, all sponsorship possibilities for him have dried up. On the other hand, maybe you’re not giving him any money between fights anyway and find that he is more marketable as volatile, bad boy-type heavyweight. Indeed, boxers like Mike Tyson and Andrew Golota have made some serious cash with similar personas.

Let’s throw one more wrinkle in: Perhaps Etienne’s attorney, in negotiating the management agreement, insisted on phrasing the morals clause such that Etienne can terminate the agreement in the event that the manager was sued by one of his other fighters. You know how litigious some boxers can be, especially after you refuse to give them a raise in their monthly stipend after someone’s been whispering in their ear at their gym for a few months. Furthermore, you know that even the top managers in boxing get sued by their charges several times over the course of their careers. Do you agree to it and pray that your other boxers stay in line during the course of your representation of Etienne, or do walk away from a heavyweight with a lot of money making potential because you are uncomfortable with having such a provision in the agreement, given the litigious nature of boxing?

A Morals Clause for the Promoter’s Benefit

A morals clause in a promotional agreement would give the promoter the right to terminate the agreement if the boxer fails to stay out of trouble to one degree or another during the term of their promotional deal. Like many contracts in team sports, this would make a lot sense for a promoter since you could unload your negative baggage if said baggage would bring you and the rest of your stable of boxers ill-repute and bad publicity. But what if the boxer came back and asked that the morals clause in the promotional agreement go both ways, such that he too can terminate the contract upon the arrest, conviction, or suing of the promoter? Maybe then the promoter does not want throw as many stones, as he is one of many owners of boxing’s glass houses, and thus withdraws his request for a morals clause, replacing it with a provision that simply tolls the agreement in the event of the boxer’s incarceration at the promoter’s discretion. This compromise relieves the promoter of the need to commit himself to a morals clause and, at the same time, allows him the option to profit off of one of boxing’s bad boys after the boxer’s legal problems clear up.

A Morals Clause for the Television Networks’ Benefit

HBO and Showtime have the high card in negotiations with boxers under almost any scenario, unless they are in a bidding war against each other for a particular boxer. As a result, there is little downside to holding the precious few boxers that are signed to multi-fight agreements with either network to a moral standard in writing. After all, they are the poster boys for major television networks who appeal to a far broader audience than just the boxing cognoscenti. While an individual promoter may not mind the negative publicity that a convicted felon can bring to their fight cards, HBO or Showtime just might, as it reflects on the channel as a whole.


As discussed above, a morals clause in your boxing-related contract may have considerable upside, considering boxing’s reputation in some quarters as the red light district of sports. But given the litigious nature of its participants, the types of people those in boxing might associate with outside of the gyms, the questionable business practices of some of its managers and promoters, and the types of backgrounds some of its personalities come from, the addition of a morals clause has the potential to open a Pandora’s Box under the right circumstances. One has to give some serious thought, therefore, to whether they wish to throw stones if they are living with a glass jaw and demand a morals clause.

Replay, But Which Way? A Look at Instant Replay in Boxing

[Editor's Note: Paul Stuart Haberman is SportsJudge's boxing and mixed martial arts expert and today takes a look at the various ways to implement instant replay into professional boxing.]

On August 1, 2009, Nate (Galaxxy Warrior) Campbell, 33-6-1 (25 KOs), a 37-year-old veteran contender who was enjoying a major renaissance in his career during the past two years, was declared the loser by third round technical knockout in his bout with Timothy (Desert Storm) Bradley, the undefeated WBO light welterweight champion. The reason? Campbell was unable to see out of his left eye following a brutal, but unintentional, head butt that opened a sizeable gash across his left eyebrow. For those watching the bout on Showtime, it was plain that the head butt caused the offending wound. But to referee David Mendoza, who did not have the proper angle to assess what happened, it was caused by a punch. Thus, a bout that would have been declared a no-decision had Referee Mendoza ruled that an unintentional head butt caused the gash turned into a heartbreaking loss for the “Galaxxy Warrior.”

Following Campbell’s loss, the cries once again came for state athletic commissions and sanctioning bodies to legalize the use of instant replay in boxing. Anyone who has witnessed such controversies as Campbell-Bradley, Acelino Freitas-Joel Casamayor, and innumerable others will argue that instant replay is long overdue, especially at the top rung of the sport. There have simply been too many fights that have been stopped or decided on the basis of the errors of referees. Indeed, refereeing is an inexact science, and referees simply cannot view the fight from every angle at the same time. This fact has been recognized in many sports for a long time now. The next question then is how the use of instant replay can best be introduced to professional boxing. We will, therefore, look at the possible implementation schemes below.

1. Corner Challenge: Under this alternative, the trainer would signal the referee that they are challenging his call on a knockdown or head butt shortly after it is made. A time-out would then be called in order to review the call at issue. The upside to this possibility is, like a coach in professional football, the trainer could not only be in a position to advise his boxer what to do between rounds during a given fight, but would also be in position to make sure his boxer receives the proper call before its too late. The downside would be that, in the absence of a penalty, such as a point deduction from the corner’s boxer if it turns out the call was correct upon replay, a corner challenge may be prone to abuse and slow the momentum of a fight if its not used with discretion. Also, if a boxer is charged a point deduction for each ruling that is upheld on review, it could lead to an even wider gap to close if that boxer already sustained a legitimate knockdown. There is also the question of when such a challenge would be made; would the corner be allowed the challenge the call at the end of a round? At the end of a fight? At a break in the action during the round?

2. Boxer Challenge: Under this alternative, the boxer himself, like a tennis player questioning the call of a line judge, could compel the review of a determination of a knockdown or head butt by promptly challenging the call after its made. The upside to this method of compelling an instant replay is that the boxer himself may, at times, be in the best position to know what actually happened. However, the potential downsides are many; what if the boxer is frivolously challenging the call because he needs a rest? What if there is a language barrier or other communication problem between the referee and the boxer making the complaint? Would the instant replay be reviewed immediately following the suspect call, during a break in the action, at the end of round, or at the end of the fight? Would there be a limit on how many times a boxer can challenge a call during a fight? Would taking a point away if the call was properly made be an appropriate check on a boxer’s use of such a challenge? What if the boxer did not have the presence of mind to verbalize his desire to challenge the call?

3. Promoter Challenge: Under this scheme, the promoter would be the one who would be immediately responsible for challenging the call of a referee. This is probably the worst alternative, as there would be an ever-present possibility of partiality towards their boxer. Do you think, for example, that Don King would have spoken up for Junior Witter on the undercard of Campbell-Bradley if he observed what he felt was an erroneous call made in favor of his boxer, Devon Alexander? Not likely. Thus, if someone like Witter came into a title fight either without a promoter, or without a promoter of similar sway and influence, he would be at a distinct disadvantage if only promoters or the lead promoter were allowed to challenge the referee’s call.

4. Judge Challenge: In short, the three judges scoring the fight would also be acting as additional pairs of eyes for the referee’s calls throughout the contest. If one of the judges felt that a given call was in error, he would signal the same to the referee and a review would take place either during or after a round, and before the judges submitted their scoring of a given round. This possibility has very little potential downside, as many judges double as referees and thus know what to look for, but it is also a potential distraction to their larger review of a round for scoring purposes. A more skeptical individual may also question a judge’s partiality, depending which boxer is the promoter’s guy. Additionally, there is the more abstract argument that giving the judges the power to make challenges usurps the referee’s role as the “sole arbiter” of the match.

5. Referee Challenge: Under this scenario, a referee could review his own call sua sponte at the end of a round or during a break in the action. This method would be especially useful in places such as Britain, where domestic contests are decided solely by a referee, and thus a referee would simply be seeking to correct his own call in order to achieve a fairer scorecard. The downside to this possibility is that some referees may not have the humility in the heat of the action to admit that they might have blown a call, or may otherwise have certain biases towards one boxer or another, depending on what has happened in a match to that point.

6. Commissioner Challenge: Here, the head of a given state or national athletic commission/federation would be the only person to determine whether or not an instant replay is needed during the course of a bout. Like a judge challenge, there is little downside to this, especially as the commissioner has a tacit obligation to be impartial as to all participants and parties involved in a given fight card. The major question here is whether this puts too much power in the hands of a commissioner who, like many others (including his referees), may not be in the best position to determine whether a challenge is necessary. If he’s not, whom does the commissioner listen to in order to gauge whether a given call is worthy of review? The respective corners? The managers? The show’s promoter? His deputies? Does he simply take a look at an instant replay by himself and unilaterally decide if the ruling gets overturned? Again, the hazard is there of taking power away from the referee, who is charged with being the “sole arbiter” of the match.

7. Automatic Replay: Perhaps there could be an automatic replay of each and every head butt and knockdown call made during a given bout. Under this possibility, each such call would be summarily reviewed by instant play at the end of a round to make sure they were correct, even if no one challenges it. The major question here is who would review the calls and make such a decision. If there referee himself had to, it would take away from his duties of checking on the conditions of boxers between rounds, issuing admonishments and warnings to boxers between rounds, and otherwise keeping track of how much time is left before the next round starts. While this method may be the most foolproof, therefore, it may also be the most cumbersome of the options.

8. Outside Referees: Like the judges, these referees would be placed around the ring strictly to cover all potential angles and challenge the call if they see a head butt or knockdown differently. The obvious downside to this possibility would be the cost of three additional officials per fight card.

9. Hybrid Challenge: Under this scenario, perhaps a mixture of different people involved in a given bout, such as both the boxer and his corner or a corner and the judges, would each have the power to make challenges to a referee’s call. This option would provide several layers of protection for a boxer in each fight, and has little potential downside other than the possibility of slowing the momentum of a fight, depending when the challenge can be made. Naturally, while a corner or boxer could be controlled by penalties, no such limitation would exist on challenges made by a judge or commissioner. It is important to remember, however, that these calls simply do not come up that often overall, thus any caps on the number of challenges will rarely be an issue.

Whichever of the above scenarios, if any, is ultimately deemed appropriate by the athletic commissions and sanctioning bodies that provide the legal and regulatory structure to professional boxing, Campbell-Bradley made clear that the time has come. Boxers need not suffer injustice by human error on top of the physical tax their chosen profession places on their bodies.

(This article also appeared on 8countnews.com)

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. ©

The Number One Contender: That's a Wrap

[Editor's Note: The Number One Contender is an exclusive SportsJudge column by licensed boxing manager Paul Stuart Haberman, Esq. Today Paul follows up on his February 3 discussion of the Antonio Margarito hand-wrapping scandal now that Margarito and his trainer have lost their licenses.]

In the wake of one of the most controversial incidents in professional boxing in recent years, former welterweight champion Antonio Margarito and his trainer Javier Capetillo had their licenses revoked earlier this week by the California State Athletic Commission (hereinafter the “Commission”) following the discovery of a Plaster of Paris-like substance on Margarito’s hand wraps before his January 24, 2009 welterweight championship bout with Shane Mosley. At their hearing, Margarito pleaded that he had no knowing involvement with his hand wrappings that night, while Capetillo threw himself on his sword and took full responsibility for what happened. Margarito’s plea fell on deaf ears, however, as the Commission revoked both of their licenses. In essence, the Commission held that Margarito had respondeat superior liability over those who work in his corner.

Barring a successful appeal, Margarito will be unable to box in North America for at least a year. After a year, he and Capetillo will be able to re-apply for their licenses, pursuant to California State Athletic Commission Rule 399. The re-application process guarantees that Margarito will get another opportunity to go before the Commission and apologize for the misdeeds of his corner, but will not guarantee him or Capetillo new licenses. In the meantime, Margarito can fight overseas, where the revocation has no binding effect, and has already been invited to box in his hometown of Tijuana, Mexico by Mayor Jorge Ramos.

Margarito’s promoter, Top Rank, expressed its interest in having Margarito appeal the revocation of his license, which he may do upon questions of law. In a press release, Top Rank’s Bob Arum, hinted at the question of law they might seek to appeal upon: whether the doctrine of respondeat superior was properly applied to Margarito by the Commission. In California, as in most jurisdictions, the doctrine of respondeat superior provides for the assessment of liability against an employer for an employee’s tortious actions that are taken within the scope of his employment. To successfully assert that Margarito should not have been found liable, therefore, his attorneys would have to argue either (a) that Margarito should not be deemed an employer of Capetillo in the first instance, or (b) that the placement of a Plaster of Paris-like substance on his hand wraps was not done within the scope of Capetillo’s employment.

Further, California courts accord a strong presumption of correctness to the findings of an administrative body. As such, the party challenging said findings must establish that the administrative decision was contrary to the weight of the evidence. It would, therefore, not suffice for the court to simply find that the doctrine of respondeat superior was improperly applied to Margarito. Rather, Margarito and Capetillo would also have to establish that the decision to revoke their licenses in the face of the evidence regarding Margarito’s hand wraps was not warranted based upon the evidence provided at their hearing. Establishing this point could prove tricky, between the undisputed finding of the Commission’s inspectors that night in his dressing room and Capetillo’s mea culpa during the proceedings.

In addition to filing an appeal in the California courts, Margarito may also seek the intervention of the Association of Boxing Commissions (the “ABC”), the coalition of state, provincial, and tribal boxing commissions that provides a level of uniformity to professional boxing in North America. While the ABC is not a government entity and has no authority to contravene state regulations, a favorable view of Margarito’s purported plight by the ABC may help influence the Commission to either reconsider its revocation or grant him a new license when he is permitted to reapply. The ABC, however, has its credibility on the line, as it is widely regarded as the enforcer of law and order in North American professional boxing. Accordingly, it seems unlikely that it would take a favorable position towards Margarito and Capetillo’s claims in this matter.

All things considered, the bet here is that Margarito, as he did in the fight with Mosley that fateful night, will once again find himself on the mat in the late rounds of any appeal.

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. ©

The Number One Contender: Hands of Steal?

[Editor's Note: The Number One Contender is an exclusive SportsJudge column by licensed boxing manager Paul Stuart Haberman, Esq. Today's article is a discussion of the potential legal implications of Antonio Margarito’s hand-wrapping scandal on his career.]

On January 24, 2009, Antonio Margarito, riding the wave of career momentum that he gained following his emphatic dismantling of the previously undefeated welterweight champion Miguel Cotto, faced perhaps the highest level operator he had ever came across in professional boxing: former multi-division world champion and future Hall of Famer “Sugar” Shane Mosley. Installed as a 4-to-1 favorite, Margarito undoubtedly gave himself every advantage during his preparations for Mosley, from his conditioning drills to top-shelf sparring. But as their fight drew closer on the night of January 24, the question arose as to whether he gave himself one too many advantages, after a foreign substance was found on his hand wraps by staffers of the California State Athletic Commission (hereinafter the “Commission”). Early reports suggested that the still unidentified substance was moist, and appeared to have qualities similar to Plaster of Paris. The implication? That the 4-to-1 favorite and/or his corner sought to enter the ring against Mosley with an extra, potentially lethal advantage to combat Mosley’s superior hand speed and overall skill. The result? As of right now, a temporary suspension of Margarito and his chief corner man, Javier Capetillo, pending a full investigation.

Margarito and Capetillo’s temporary suspensions were administered pursuant to California Business & Professions Code § 18842 and California State Athletic Commission Rules 323 and 390. Section 18842 empowers the Commission to temporarily suspend licenses when doing so is necessary to “protect the public welfare[,]” while Rule 323 is the provision of the Commission Rules that places restrictions upon how a boxers hands can be wrapped, and Rule 390 provides, in relevant part, that the Commission that may fine, suspend, or otherwise discipline licensees if they conduct themselves “in a manner which is deemed by the commission to reflect discredit to boxing[.]” Pursuant to California Business & Professions Code § 18842, Margarito and Capetillo are now entitled to hearings regarding their suspensions, and have been asked to appear for an initial hearing on February 10, 2009. Their prospective penalties range from fines to revocations of their licenses. In the event that their licenses are revoked, they may not apply for new licenses until one year after the date of such a revocation. Any penalties assessed may be appealed to a superior court, but only upon questions of law.

If Margarito has his license suspended or revoked in California, he still has several options with regard to his boxing career. To start, no suspension or revocation in California, or indeed anywhere in the United States, need be recognized by any other country than Canada, as its provinces are aligned with the U.S.-based Association of Boxing Commissions (hereinafter the “Association”). Margarito can therefore take his show outside of North America. Further, given that any suspension or revocation would be administrative in nature, as opposed to medical, other North American commissions are also theoretically free to license him even if they are part of the Association. While “[a]ll medical and administrative suspensions placed on contestants by other athletic commissions will by recognized by the supervising commission[,]” the phrasing of this regulation appears to leave it open to an individual commission as to what they wish do with their knowledge of a suspension. Indeed, the Association’s Regulatory Guidelines contain the more binding term “shall” with regard to other regulations, but not with the regard to the recognition of suspensions by other member commissions. The wiggle room allows less stringent member commissions, such as Texas, which permitted Evander Holyfield to fight despite his administrative suspension in New York, and West Virginia, which hosted Tommy Morrison’s return to ring several years after testing positive for HIV in Nevada, to allow boxers such as Margarito to fight in the United States despite existing suspensions or grave medical concerns. However, the Professional Boxing Safety Act of 1996 federally mandates that a suspending commission and the Association have some measure of notice and input with regard to allowing a suspended boxer to fight under the jurisdiction of another member commission before a license is granted to the suspended boxer by same.

Any gaps in the universal enforcement of suspensions aside, many of the Association’s member commissions generally recognize each other’s suspensions or revocations. Uniformity is the lifeblood of the Association. Additionally, if Margarito does successfully defy any eventual suspension or revocation resulting from this incident, he may find himself shut out of fighting in California for a long time. Under California Business & Professions Code § 18850(a), “[a]ny boxer or martial arts fighter who participates in a contest or match while under suspension by the commission, or any other recognized commission, shall have his or her license revoked.” In short, Margarito can continue to pursue his boxing career in North America or abroad. It may be especially tempting to head back to his homeland, Mexico, where the crowds he can draw would parallel those that he drew to the Staples Center for his bout with Mosley. But if Margarito wishes to fight again in California, or any other major host of boxing in the United States any time soon after any suspension or revocation, he is best advised to sit out until the suspension is over or until he is free to reapply in California. No need for the Mosley fight to continue resulting in career losses for Margarito.

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, L.L.P. 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. ©

[Interested in reading more of Paul Stuart Haberman's boxing analysis? Be sure to check out his tips on how to effectively handicap an upcoming match.]