Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.

Introduction

On Tuesday the 12^th 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 (2^nd 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.

There has been a lot of Commission interest in potential state aid to professional football clubs in various Member States.  The huge sums of money involved are arguably an important factor in this interest and conversely, is perhaps the reason why state aid in rugby union is not such a concern. But whilst the sums of money may pale into comparison to those of professional football, the implications for the sport are potentially no less serious.

At the end of the 2012/2013 season, Biarritz Olympique (Biarritz) were relegated from the elite of French Rugby Union, the Top 14 to the Pro D2.  By the skin of their teeth, and as a result of an injection of cash from the local council (which amounted to 400,000€), they were spared administrative relegation to the amateur league below, the Fédérale 1, which would have occurred as a result of the financial state of the club. Article 8 of the Statuts et Règlements Générqaux (the rules that govern professional rugby) states that if it is determined by the DNACG (Direction Nationale d’Aide et de Contrôl de Gestion; the organisation charged with overseeing the administrative, financial and legal aspects of rugby in France) that a professional team is unable to satisfy its projected financial commitments, it will be relegated to the amateur leagues. Biarritz have been one of the great Top 14 clubs, having won the league in 2005 and 2006, having reached the Heineken Cup final in 2010 and won the smaller of the European competitions, the Challenge Cup in 2012 and they look set to make their return to the Top 14 next year, something that would not have been possible had the local council not intervened, an intervention that was permitted by the DNACG.

Article 107 TFEU provides for a very inclusive definition of state aid, declaring as incompatible with the internal market any aid whatsoever, granted by the State or funded with state resources, which distorts or threatens to distort competition by favouring certain undertakings in so far as it affects trade between Member States. There is a four part test for determining whether or not state aid has been granted; (i) did the money come from state resources; (ii) was it given to an undertaking; (iii) did that money confer selective advantage; and (iv)did it have the potential to distort competition. 

The definition of state resources in this context is fairly wide, and covers money provided by local government and so is easily satisfied in this case. The European jurisprudence is clear that a sporting club or association can be considered to be an undertaking within the meaning of the Treaty provisions in so far as its economic activity is concerned; again, this is easily satisfied in this instance. Given the lack of information available as to the nature of Biarritz’s financial concerns or the terms of the grant, it is difficult to determine whether selective advantage has been conferred by the grant. Selective advantage, of this particular type, is conferred when the undertaking could not have obtained that economic advantage under normal market conditions (market economy operator principle), so had Biarritz been unable to obtain a grant on similar terms to that which was provided by the Council, selective advantage will have been obtained. Finally, the aid has to have the potential to distort competition, and idea that is explored below alongside its affect upon trade between Member States.  

The Pro D2 is an entirely domestic league, it has no international fixtures whatsoever, so potentially is a purely domestic matter. In Stevenage Borough Football Club v The Football League (1996) Times Law Review, 6 July, it was deemed too remote that Stevenage would be able to compete for a place in European competitions and so there was no effect on trade between Member States in that case. However, the Commission have been clear that trade between Member States may be affected by aid given to an undertaking that is not itself, trading across borders (Case C-102/87 France v Commission [1988] ECR 4067, para.19) and indeed, have recently opened an investigation into a second division football team in the Netherlands. The Stevenage case can be contrasted with Biarritz where, despite a rocky start to the season, they have now climbed the table and sit second place. They have a serious chance of being promoted back into the Top 14, or at the very least, occupying one of the coveted promotion playoffs spots, thereby altering who could potentially win promotion (in France two teams go up and two teams come down).  Every team in the Top 14 competes in one of two European competitions: the European Championship Cup or the European Challenge Cup.  The potential effect on trade between Member States starts therefore, to become more evident. The concept of ‘trade between Member States’ has traditionally been given a wide interpretation and can be said to include situations which affect the competitive structure of the market, within its scope. The Top 14 has fixtures with other European countries, including England, Ireland and Italy.  Who enters (and who leaves) therefore will affect the competitive structure of those international fixtures. Article 107 however, states that aid is only prohibited ‘in so far as it’ has an effect on trade between Member States, rather than in Article 101 or 102 which rely on ‘may’ as a limiting concept. The jurisprudence is clear that it is the effect of the aid, rather than the intent or form of the aid which is determinative.  A full market analysis of the effect on trade, as occurs under Article 101 and 12, is not required under Article 107, although justification for the finding of a distortion of competition, or threatened distortion, would be necessary (Case 730/79 Philip Morris Holland BV v Commission, [1980] ECR 2671). In the case of Biarritz, the provision of the 400,000€ saved the team from relegation to the Fédéral 1 and therefore put them in a position in which they could immediately fight for promotion back into the Top 14 (which they look likely to achieve). It does not appear therefore, that an investigation would stumble at this stage of its inquiry.   

Due to the inclusive nature of the Article 107 prohibition, many investigations turn on whether they satisfy the exemption criteria of 107(3). The one most typically utilised in the case of investigations of professional football clubs in 107(3)(c) which states that aid used to facilitate the development of certain economic areas or activities may not be incompatible with the internal market, or the ‘failing firm’  defence. The local mayor hinted at the economic implications for the town itself of the teams fall from professionalism, as the primary motive for providing the aid. There is however, no (public) suggestion that the club would have folded without the injection of cash, merely that it would have had to compete in the amateur Fédérale 1. The definition of a failing firm is necessarily flexible. Nevertheless, it is a requirement when considering rescue aid (as opposed to restructuring aid as appears to be the case here) that the difficulties faced by the firm be short/medium term difficulties that are dependent upon short term government help for their resolution. As Biarritz have performed so well this season, it seems that there is an argument to be made that their difficulties were indeed short-term in nature, and have been resolved by the injection of cash provided by the local council. The aid itself would also have to be a ‘one time, last time’ injection of financial help, something that is not entirely clear from the local media reports. Further, the question of whether demotion to an amateur league is comparable to the outright failure of a firm would have to be addressed. Fellow former Top 14 great and rival, Union Sportive Montalbanaise (Montauban) faced administrative relegation in 2010. The local council there did not provide the club with the money required to prevent their fall. The club filed for bankruptcy after being unable to prove to the DNACG that they would be able to address the rumoured 1.7 million Euro shortfall in their budget for that season. After 4 years in the amateur league they succeeded in winning promotion back into the Pro D 2 for the 2014/2015 season, where they currently sit mid-table. Using this as an example, and provided that the criteria laid out in 3.1.1. of the Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty are satisfied, it seems there is at least a basis for defending the council loan. 

However, as there is very little by the way of detailed information available as to the nature of the financial difficulties of the club or the terms of the financial assistance provided by the Council, it is impossible to be determinative as to its standing under Article 107. On the face of it though, the case of Biarritz looks at least worthy of some Commission interest and could well be an example of unlawful state aid, aid that looks likely to have enabled Biarritz re-admittance to the Top 14, the ‘richest league in the world’. 400,000€ may seem like peanuts when compared with the figures the Commission is looking at in respect of professional football, but in this case it seems, paying peanuts gets you a lot more than monkeys.