Legal Ramifications for Using PEDs in MMA?
With Bill S-209 likely to soon become law giving MMA a legal framework in Canada, a question that will arise is when will consent be exceeded in MMA? This is a live issue because while Bill S-209 will protect sanctioned bouts from criminal ‘prize-fight’ status, it does not work to cease the operation of the assault provisions of the Criminal Code.
The most likely first issue up for consideration will relate to illegal Performance Enhancing Drugs. There is no shortage of PED misuse in many sports and MMA is no exception. What separates PED abuse in MMA from other sports, however, is the risk of harm to fellow competitors. Lance Armstrong’s PED fueled cycling feats did not expose his opponents to risk of physical harm. The same cannot be said when one man gains physical advantage over another involved in a striking or grappling contest. When athletes consent to an MMA bout there is an agreement that the rules of engagement will be abided by. If a competitor uses illegal PED’s and fails to disclose this prior to the match that will arguably trigger the Assault provisions of the Criminal Code.
Consent is a recognized defence to criminal charges of assault. One limit to this defence is that consent cannot be obtained by fraud. If an athlete uses and fails to disclose the use of illegal PED’s, consent is arguably stripped away opening the door to not only criminal assault charges but also to civil suits for damages.
So what factors would a Court look at in deciding whether consent is obtained by fraud? The leading decision in this field of law (R v. Mabior) was recently released by the Supreme Court of Canada. While Mabior dealt with consent to sexual contact where an HIV positive status was not disclosed, its analysis can equally be applied to consent to MMA. The Court held that consent to contact which would otherwise be valid can be taken away if a participant
- Fails to disclose a key fact
- The other participant would not have participated had that fact been known
- The activity consented to poses ‘a significant risk of or causes actual serious bodily harm’ by virtue of the non-disclosed fact.
Where an athlete gains physical advantage over an opponent in MMA through the use of illegal PED’s all of the above factors are arguably met.
Fraud can delay the operation of limitation periods exposing cheaters to legal repercussions years after the fact. A quick look at Lance Armstrong gives a striking example of how serious the legal consequences can be after one achieves all they desire through cheating in sport. If you are an MMA athlete stay clear of illegal PED’s. Don’t gamble with your livelihood. You won’t want to be on the wrong end of the test case on this issue.
Erik Magraken is a personal injury litigator and Partner with the British Columbia law-firm MacIsaac & Company. You can follow his BC Injury Law Blog here: http://bc-injury-law.com/blog/