Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.
Introduction
On Tuesday
the 12th of April, João
Carvalho passed away in the Beaumont Hospital after sustaining serious injuries
from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The
fighter was knocked out in the third round of a welterweight fight against
Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises
a number of interesting legal issues. This opinion piece will discuss the
possible civil and criminal liability that may result from the untimely death
of the Portuguese fighter.
It is
important to note at the outset that MMA has few rules and permits wrestling
holds, punching, marital arts throws and kicking. MMA appears to have little
regulation and a lack of universally accepted, standardised rules. There is no
international federation or governing body that regulates MMA. It is largely
self-regulated. MMA is not recognised under the sports and governing bodies
listed by Sport
Ireland, the statutory body established by the Sport
Ireland Act 2015 which replaced the Irish
Sports Council. MMA is considered a properly constituted sport so long as the
rules and regulations are adhered to, there are appropriate safety procedures,
the rules are enforced by independent referees, and it appropriately
administered.
The
Acting Minister for Sport, Michael Ring, has called for the regulation
of MMA. Currently there are no minimum requirements
when it comes to medical personnel; nor are there any particular requirements
as to training of medical personnel. The promoter decides how many doctors and
paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17
MMA promoters in Ireland requesting that they implement safety precautions in
line with those used by other sports including boxing and rugby.
Despite
this lack of regulation, this does not exempt MMA from legal liability as the
discussion below demonstrates.
Legal Issues-Civil Liability
The
death of Carvalho may expose those involved in the event and the organisation
of the sport to liability for lack of due care. Although case law is limited in
Ireland, English case law has demonstrated that sports governing bodies,
referees and coaches may incur civil liability. The
referee in the fight involving Carvalho and Ward could be subject to civil
liability if it is found that he failed to stop the fight at the appropriate
time, a claim that the referee vehemently refutes. Referees
have been held to owe a duty of care to participants. The role of the referee
is not just to enforce the rules of the game to ensure fair play but also to
ensure that the sport is played according to the rules for the safety of the
participants. In the case of English case of Smolden v
Whitworth and Nolan ([1997]
E.L.R. 249 [1997] P.I.Q.R. P133), the plaintiff successfully sued the
referee for injuries sustained as a result of a collapsed scrum in game
involving underage rugby players.
With
regard to governing bodies, a court may find them liable for negligence due to
the fact that they have advance planning for events or the organisation of a
sport. Under the “deep pocket theory”, the governing body will be viewed as the
more attractive target for a claim of negligence as it will have more money to
pay in damages. Total
Extreme Fighting organises events in order
to promote amateur and professional MMA in Ireland. The Irish
Amateur Pankration Association (IAPA), a body established in 2014, is the
Irish body that is affiliated to the International Mixed Martial Arts
Federation. The IAPA is also affiliated to the Irish Amateur Wrestling
Association (IAWA) (which according to
the IAPA
Facebook page, is affiliated “for its lighter Amateur
training and activities (Pankration), which form part of its progressional
pathway for participants”). However, the IAWA is a recognised sports governing
body and receives direct from the Department of Transport,
Tourism and Sport and indirect state funding
through the auspices of Sport Ireland. Sport Ireland exercises
quasi-governmental regulation. It provides funding and support to recognised
sports governing bodies.
A case
that is instructive is the English case of Watson v British Boxing Board of Control ([2001] 2 WLR
1256), the British Boxing Board of Control (BBBC) was held liable for the
injuries sustained by Michael Watson. The referee stopped the fight in the final
round when Watson appeared to be unable to defend himself. Watson had sustained
a brain haemorrhage and, after returning to his corner, he lapsed into
unconsciousness on his stool. Disorder among the crowd ensured and Watson’s
trainer suddenly realised that he was unconscious. It took seven minutes for
the doctor to arrive to the ring and a further 25-30 minutes before Watson
arrived at the hospital. By the time Watson arrived at the hospital, he had
sustained serious brain damage. He suffered a subdural haemorrhage which left
him paralysed down the left side and with other physical and mental disability.
The BBBC argued that it did not owe Watson a duty of care. The BBBC further
argued that had the necessary medical equipment and personnel been there on
time it would not have made any difference given the nature of the injuries
sustained. The BBBC is a limited liability company and is the sole controlling
body that regulates boxing in the UK. All fighters, clubs, agents, match-makers and
any person involved in the sport of boxing must obtain a licence from the BBBC.
Although the BBBC was not directly involved in the fight (i.e. there was no
contractual involvement), it was held to be negligent in not providing
immediate resuscitation at the ring side. As the BBBC had sanctioned the fight,
the court held that to be sufficient proximity between Watson and the BBBC. In
drawing parallels between IAPA, Total Extreme Fighting and the BBBC, a claim
for negligence could arise.
In
addition to potential liability for a lack of due care, there is a possibility
of criminal liability arising. When an individual plays a contact sport, it is
reasonable foreseeable that he or she will sustain an injury, as contact sports
by their very nature involve contact between the players. Individuals consent
to inherent risks that are associated with the sport. However, there are limits
to what an individual can consent to. If a sports person deliberately and
recklessly disregards the rules of the sport and intentionally goes beyond the
limits of that sport, the criminal law may be invoked. A sports person may be
charged with manslaughter if the opponent dies as a result of their actions. It
would be very unlikely that a sportsperson would be charged with murder as it
would require premeditation. Even in a sport like MMA, a participant consents
to injuries that are within the rules of the sport, that incidental to the
playing of the game by the rules and those which are part of the playing
culture, something outside the rules but it has become an accepted part of the
sport. If the injuries sustained go beyond what the participant consented to,
the opponent could be charged with assault. It is to the issue of criminal
liability that the opinion piece now turns.
Legal Issues-Criminal Liability
In
Ireland, the Non-Fatal
Offences Against the Person Act 1997 governs
assault. Section 2 defines assault as the actual carrying out or threat of
reckless or intentional, direct or indirect application of force or causes an
impact on the body of another without the consent of the person. Section 3
concerns “assault causing harm” with consent being absent. Section 4 relates to
assault “causing serious harm”. Serious harm is defined as “injury
which creates a substantial risk of death or which causes serious disfigurement
or substantial loss or impairment of the mobility of the body as a whole or of
the function of any particular bodily member or organ” (section 1). Section 4 does
not include the provision consent being absent as it does under sections 2 and
3. However, it is extremely doubtful that the defence of consent could be
invoked under Section 4 as the offender, if found guilty of the offence, could
face life imprisonment. Section 22 (1) provides the following: “the provisions
of this Act have effect subject to any enactment or rule of law providing a
defence, or providing lawful authority, justification or excuse for an act or
omission”. Section 22 retains the basic common law rule that consent cannot be
an absolute defence to all forms of assault (F McAuley,
P McCutcheon, Criminal Liability
(Dublin: Round Hall Sweet & Maxwell, 2000), 533).
Mixed
Martial Arts are in a precarious legal position. While there are MMA clubs in
Ireland, these clubs are not illegal per
se, but they derive their legal status from boxing, which is defined in
negative terms. Boxing is legal because it is not prize-fighting as
prize-fighting caused a breach of the peace. In order to understand the
contemporary position of boxing and by extension MMA, it is necessary to
examine its origins. Prize fighting and bare-knuckle fighting were not devoid of rules but
lacked a uniform set of principles (A formal roped-off section was rarely used,
often the ground would be marked with chalk, there was no such thing as rounds
and there was no limit on the duration of the fight. See J Anderson, The Legality of Boxing: A Punch Drunk Love (OXON: Birkbridge Law
Press, 2007), 15). Prize fighting, as the name suggests, concerned a pecuniary
reward to the fighter who had physically overcome his opponent. In 1743 the
Broughton Rules were introduced, which became the sport’s first uniform set of
rules. The Broughton Rules, while welcomed at first, proved to be inadequate.
In 1865 the Queensbury Rules were introduced by the eighth Marquis of Queensbury.
Under these rules there would be no wresting or hugging permitted, rounds would
be three minutes in length, and one minute’s time between rounds, the ring
would be twenty-four feet, gloves of the best quality would be worn and if a
glove burst or came off it would be replaced to the referee’s satisfaction
(Anderson, 28) Gunn and
Ormerod (‘The
Legality of Boxing’ in Greenfield and Osborn (eds) Law and Sport in Contemporary Society (London: Frank Cass, 2000), 23) refer to the legal recognition of boxing as being by
“default rather than design”. In the nineteenth century, prize fighting became
increasingly associated with breaches of the peace. A number of cases came
before the courts, which presented the courts with an opportunity to outlaw
prize fighting. While prize fighting was banned, a tamer version of the sport,
namely boxing, gained judicial acceptance. Boxers differed from their prize
fighting counterparts as boxers wore padded gloves and the fight was held in
private.
As prize fighters began to wear
gloves, the distinction between boxing (sparring) and prize fighting became
quite blurred. The courts distinguished between sparring matches and prize fighting
on the basis of the likelihood of one of the fighters suffering serious injury
(Gunn and Ormerod, at p.24). The courts, finding it difficult to distinguish
the two, decided to leave the issue to the jury. In R
v Orton (14 Cox CC 226; (1878) 39 LT 293), the court held (at 294) if a
fight were a mere exhibition of skill in sparring it was not unlawful, however,
if the combatants had met intending to fight until one gave into exhaustion or
injury he had received it was a breach of the peace and thus unlawful
irrespective of whether the fighters wore gloves. In R v
Young (8 C. & P. 644; (1866) 10 Cox CC 371), a boxer faced charges for
the manslaughter of an opponent during an indoor sparring match. Bramwell J (at
373) instructed the jury as follows: “If a death ensued from a fight,
independently of it taking place for money, it would be manslaughter, because a
fight was a dangerous thing and likely to kill; but the medical witness here
stated that this sparring was not dangerous, and not a thing likely to kill”.
In the
leading case of R
v Coney ((1882) 8 QBD 534), the court
established that prize fighting was illegal as it caused a breach of peace. The
court did not hold boxing or sparring legal, but declared prize fighting
illegal. The Court of Appeal declared prize fighting illegal as
it encouraged a breach of the peace and gambling. The dangerous nature of the
sport seemed to be secondary consideration. Judges Stephen and Matthew were the
only judges that seemed concerned about the degree of harm inflicted on a
combatant during a fight. Stephen J (at 549) held prize fighting to be not only
injurious to the public but also the fighters themselves.
Boxing is a legal and recognised sport. As a recognised sport, the law provides it
with significant protection. If a fight took place in the street, it would be
considered illegal as a breach of the peace and charges under the Non-Fatal
Offences Against the Person Act, 1997 may ensue. In the fight that takes place on the street,
the combatants could be consenting, they are both adults with capacity to
consent, yet their actions are deemed illegal. However, an organised boxing
match is legal because boxing is a recognised sport. The fight in the street would be deemed to
cause a breach of the peace. The national governing body for amateur boxing in
Ireland is the Irish Amateur Boxing Association (IABA). All local boxing clubs
are affiliated to the IABA. Professional boxing is regulated by the Professional
Boxing Union of Ireland, which is affiliated to the European Boxing Union, the
World Boxing Union and the World Boxing Association. What distinguishes the example of the two
consenting adults settling their differences by fighting out in the street is
the fact that a recognised boxing match has rules which must be followed. There
is a referee, there are safety measures in place, and the pugilists wear padded
gloves. Rules are devised for sports to
ensure fairness and uniformity but they also are devised in a way to ensure
that the likelihood of participants being injured is minimised. However, the
legality of boxing has long been debated. Over the years there have been calls
to declare it illegal. Boxing remains a sport due to its popularity and there
is a public interest in it continuing as a lawful sport.
The Law Reform Commission Report on Non-Fatal Offences and its
application to Sport
The 1997
Act was largely based on the recommendations of a Law
Reform Commission (LRC) Report from 1994 (LRC-45–1994).
The Report examined the position of contact sport in Chapter 9. The 1997 Act
did not include any of the recommendations relation to sport. The Report
acknowledged that contact sports, by their very nature, entail violent conduct.
In a fast paced match tempers rise and subsequently rules are broken (para.9.148,
at p.272). In professional sports violent conduct is often penalised in the
form of a fine or suspension. For the most part, the civil law will provide an
injured player with compensation. Quoting from the Canadian Law Reform
Commission’s Working Paper, the LRC proposed that the criminal law should be
used as a “policeman” of last resort or as an “enforcer” (para.9.148, at p.272)
The LRC recommended that no general exemption should be given to contact sports
where the victim does not expressly or impliedly consent to the infliction of
injury (para.9.149,
at p.271).
The LRC
summarised the situations in which a person is said to have consented in a
contact sport:
1.
to any contact within the
rules of the game;
2.
to any contact of an
accidental nature arising from incidentally in the course of it; and
3.
to incidental pain to the
risk of hurt or injury from such contact (para.9.152, at p.273).
In giving
the example of a footballer, a footballer impliedly consents to be tackled, to
being kicked accidentally and to the risk of being injured, but a footballer
does not consent to being punched or kicked (para. 9.153, at p.273). As most
sports do not authorise intentional or reckless tackles or injury, there should
be no exemption given to contact sports. If a player does not have the
requisite intent or recklessness and the contact is within the rules of the
sport, it is irrelevant that the force used was likely to cause injury.
The LRC
acknowledged that it is very difficult if not impossible to ascertain whether a
contact is intentional or reckless. The courts, when faced with
a sporting case, often refer to the standards of the particular sport in
deciding whether or not the conduct is acceptable (para.9.154, at p.274). Such
an approach is understandable given that “sports produce valuable social
benefits through the practice and example of fair play within an agreed set of
rules” (para.9.154, at p.274).
In
reference to the amateur nature of Irish sport, the LRC noted that rules of
most sports place reasonable limits on the degree of violence which may be
consented. Consequently, the LRC concluded that no specific penalties should be
devised for sporting violence (para.9.157, at p.274).
It was
also concluded that boxing should not be signalled out for exemption. The LRC
proffered that any proposed changes to the rules of the sport is a matter for
the relevant regulatory sports body in according with public debate and medical
evidence (para.9.157, at p.274).
In the
absence of any statutory intervention, the LRC concluded that the criminal law
would continue to apply in situations where the rules of the sport are
breached. It did, however, note its limitations (para.9.158, at pp.275-275). At
the time of the LRC Report MMA had just been resurrected by the Ultimate
Fighting Championship (UFC) which was founded in
1993. It is interesting that the LRC referred to martial arts which are
lawfully recognised sports. The LRC gave the following example: In some martial
arts, a serious injury may result from a kick which is within the rules of the
sport. Failure to prosecute and attempts to prosecute would both attract public
debate. It would seem unjust to hold the opponent criminally liable for conduct
that is part of the rules of the sport. The victim had also consented to the
risk. Public opinion may call for sports that can cause serious injury,
including professional boxing, to be declared unlawful. The LRC recommended
that a specific provision be made for consent to injuries inflicted in the
course of, and in accordance with the rules of a lawful sporting activity. It
summed up its position as follows:
“Every person is protected from criminal responsibility for causing harm
or serious harm to another where such harm is inflicted during the course of,
and in accordance with the rules of any bona fide sporting activity” (para.9.159,
at p.275)
The above
summation could be applied to Charlie Ward, who won the fight against Carvalho.
Another factor to consider is that Carvalho consented to the risk of being
seriously injured or to a substantial risk of death as defined by section 4 of
the Non-Fatal Offences Against the Person Act 1997.
The Legality of Mixed Martial Arts
Mixed martial arts (MMA) are hybrid sports in that they
combine traditional martial arts sports with non-traditional ones. MMA is an
ancient sport, however, its modern inception dates back to 1993 when the Ultimate Fighting
Championship (UFC) was
founded. As noted above, MMA is largely self-regulated and it has no international
federation or governing body that regulates the sport.
In Ireland, the traditional martial arts (including
Aikido, Kickboxing, Tae Kwon Do, Karate, Sumo, Kung Fu, Jiu Jitsu, Tai Chi,
Muaythai, Ninjitsu and Bujitsu) are governed by the Irish Martial Arts
Commission (IMAC). IMAC, as a recognised national governing body, receives funding
from Sport Ireland. MMA is not recognised under the sports and governing bodies
listed by Sport Ireland. MMA is considered a properly constituted sport so long
as the rules and regulations are adhered to, there are appropriate safety
procedures, the rules are enforced by independent referees, and it
appropriately administered. If these criteria are followed, then MMA will be
“at least as safe as boxing as it places so much less emphasis on blows to the
head that so concern the British Medical Association” (M James, Sports Law (2nd ed.) (London:
Palgrave MacMillan, 2013), 155).
Concluding Remarks
The death of João
Carvalho has brought to the fore a plethora of legal issues. The Acting
Minister for Sport, Michael Ring, has called for the regulation of MMA. It has
taken a fatality for the state to intervene. Currently there are no minimum
requirements when it comes to medical personnel present at events nor are there
any particular requirements as to training of medical personnel. The promoter
decides how many doctors and paramedics are to be stationed at events but that
can vary from one to three. While some have called for the banning of MMA, this
may only serve to send the sport underground and have even less safety
precautions than present. Also, the issue of consent must be considered. If
consenting adults decide to partake in such a sport and are aware of the
dangers, then arguably on the grounds of civil liberties such individuals
should be permitted to engage in MMA. The most prudent action at the moment
would be to reform the sport and for the state to require high standards of
health and safety at events.
While MMA
could be referred to as a form of licenced thuggery, MMA is legal due to its association with
boxing and other lawfully recognised fighting sports. It is now accepted as a
mainstream sport. Its legality is somewhat dubious as it derives its legality
from boxing. Boxing is legal because it is not prize fighting. Prize fighting
was declared illegal as it caused a breach of peace. The death of Carvalho may
well change the legal landscape of MMA. It is doubtful it will be banned but it
may well be subject to the rigours of the law in criminal or civil proceedings.