Conduct and Regulation of Authorized Combative Sports
9/21/16 N.Y. St. Reg. ATH-28-16-00018-A
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 38
September 21, 2016
RULE MAKING ACTIVITIES
NEW YORK STATE ATHLETIC COMMISSION
NOTICE OF ADOPTION
I.D No. ATH-28-16-00018-A
Filing No. 827
Filing Date. Aug. 31, 2016
Effective Date. Sept. 21, 2016
Conduct and Regulation of Authorized Combative Sports
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Repeal of Parts 205 through 217; and addition of new Parts 206 through 214 to Title 19 NYCRR.
L. 2016, ch. 32, sections 2 and 11
Conduct and regulation of authorized combative sports.
To implement the provisions of Ch. 32 of the Laws of 2016, effective September 1, 2016, authorizing certain combative sports.
Substance of final rule:
Chapter 32 of the laws of 2016, establishing a new Article 41 in the General Business Law entitled “Combative Sports,” effective September 1, 2016, provides that combative sports legally undertaken in this state are subject to the licensing and regulatory authority of the State Athletic Commission. Additionally within the purview of the Commission is professional wrestling. Section 11 of chapter authorizes the Commission to promulgate rules “necessary for the implementation of this act. . . to be made on or before” the September 1 effective date.
In providing a framework for the licensure and regulation of authorized combative sports and professional wrestling, the legislature repealed the existing statutory structure related to “boxing, sparring and wrestling” and replaced it with a more comprehensive scheme for the regulation of those endeavors as well as, among others, professional and amateur mixed martial arts, kickboxing, and other combative sports. Additionally, the legislation seeks to protect combatants in all combative endeavors by establishing insurance minimums for some and vesting in the Commission the discretion to establish them for others. This proposal would effectuate such statutory scheme by providing rules intended to ensure appropriate protections for the health and safety of combative sports athletes, to ensure integrity in athletic competition, to prevent abuses in the business practices within the covered industries, and to provide reasonable requirements for the licensure of professional boxing and mixed martial arts promoters, ringside personnel and combatants. Additionally, it provides for the authorization of third party entities to oversee the conduct of certain authorized combative sports including, kickboxing, wrestling (which is distinguished from “professional wrestling” as defined in section 1017 of Article 41 of the General Business Law), amateur mixed martial arts, and the martial arts of Judo, Tae Kwon Do, Karate and Kempo.
These rules are necessary to effectuate the regulation of combative sports and professional wrestling so that they may be safely conducted while contributing to the economy and general prosperity of New York State.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 206.5(d)(7), (9), 206.12, 206.18, 207.1(d), (e), 207.8, 207.10, 207.11, 207.12(a), 207.17, 208.4-208.6, 208.8, 208.10, 208.11(c), (d), 208.12-208.14, 208.15(d), (f)(4), 208.16(a), (c), (d)(1), (3)(ii), (e), 208.18-208.23, 208.24(a), 208.28, 208.29, 209.1, 209.2(a), (c), (d), 209.4-209.16, 210.5(e), 210.8, 210.12, 210.14, 210.25(c), 210.27(c), 211.6(c), 211.17, 211.35, 211.38, 211.39(a), (b), 211.42, 211.43, 211.46, 211.50(a)(3), (b)(1), 212.1, 212.3(b), 212.5(b), 212.7(f), 212.8(c)-(f), (j), (l), 212.10(a), (b)(13), (17), (c), (d), 212.11(e), 212.12(b)-(f), 212.13(a)(2)-(4), 213.2(e), 213.5(a)(5), (6), (9), 213.6, 213.7(c), 214.2(b), (5), (d) and 214.11(a)-(d).
Text of rule and any required statements and analyses may be obtained from:
James Leary, Esq., NYS Department of State, One Commerce Plaza, 99 Washington Ave., 11th fl., Albany, NY 12231-0001, (518) 474-6740
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
The amendments to the rule have been made to clarify meaning, improve syntax, and to correct non-substantive drafting errors. As such the amendments are “technical” and non-substantive, and it is thus unnecessary to revise the previously noticed Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, and Job Impact Statement.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The Department received several comments to this rulemaking. Some identified purely technical issues such as numbering errors. These were adopted. Others provided detailed and technical suggestions to amend proposed language in order to clarify intent and meaning. Many such suggestions were accepted and have been incorporated into the text. Examples include, among many others: making internally consistent and appropriate the use of the terms “match,” “bout” and “contest”; clarifying the scope and application of particular rules, and clarifying that an auditory device other than a bell may be used to mark rounds in matches. Yet others raised issues of a more substantive nature.
A number of comments were directed towards the insurance requirements. Many opined that while they “recognize and agree with Commission’s goal of protecting participants in New York,” the minimum insurance coverage requirements of $50,000 for medical, surgical and hospital care and a $50,000 death benefit as applied to professional kickboxing and other single discipline martial arts is too costly. The Department estimated the cost of acquiring such a policy to range between $3,000 and $6,000 per event. The commenters, citing the upper limit of such estimate, found it economically infeasible for “small to mid-sized events.” They urged the adoption of the current common industry practice in the New York area of acquiring insurance coverage of $20,000 for medical, surgical and hospital care and a $20,000 death benefit. The commenters stated that such a policy is available at a cost premium of approximately $1,400 for an event with up to ten matches. The Commission understands that the proposed requirement represents an increase in the cost of doing business, but weighed such fiscal impact against the apparent legislative intent to afford $50,000 in insurance protection to professional combatants engaging in combative sports matches within the State of New York. It is also of note that several other major market states require coverage requirements of $50,000 for medical, surgical and hospital care and a $50,000 death benefit, such as California and Nevada. In addition, as proposed for New York, the states of California, Nevada and New Jersey apply the same general medical and death benefit insurance coverage requirements to professional boxing, professional mixed martial arts and professional kickboxing. Moreover, the Department is not persuaded that the cost of acquiring such insurance cannot be absorbed within an event’s pricing structure. This requirement is unchanged.
Also recommended was “provision for event liability insurance. . . for all sports, whether amateur or professional, with a minimum of $1 million per occurrence and $2 million general aggregate.” Generally in New York State, the provision of general liability insurance is within the discretion of the venue and is set as a term of the agreement between the venue and the promoter. Thus, the Commission has not previously prescribed a minimum event insurance and does not find it necessary to do so, herein.
The Commission’s proposal to implement the statutory requirement that promoters of professional boxing and professional mixed martial arts provide an insurance policy guaranteeing a minimum of one million dollars in coverage for the medical, surgical and hospital care of any combatant sustaining a life-threatening brain injury during a promoted event in New York State was criticized as “arbitrary” in imposing an increased promotional cost which will drive business to other states and “killing boxing in New York”. The Commission has engaged in extensive conversation with insurance providers and underwriters and, as was represented in the Regulatory Impact Statement appurtenant to this rulemaking, has been advised that the cost of acquisition, inclusive of the insurance coverage requirements of $50,000 for medical, surgical and hospital care and a $50,000 death benefit, will range between approximately $7,500 and $10,000 per event. While, as previously noted in the RIS for this rulemaking, the cost of this requirement may present a challenge for small to mid-size promoters, the industry on the whole should be able to absorb such cost without significant long-term disruption. The Commission has also been apprised that a policy of such insurance should be available to the market for purchase within the State in time to meet projected and anticipated industry needs. It is noted that even a $10,000 potential cost increase in this regard may represent less than a one dollar per ticket price increase in a 10,000 – 25,000 seat venue (such as Madison Square Garden, Barclays Center, Nassau Veterans Memorial Coliseum, The Times Union Center, The Carrier Dome, or The First Niagara Center) and may prevent the financial destitution of an otherwise uninsured fighter and his or her family in the event of a life-threatening brain injury. Having found that the unambiguous legislative intent to require such coverage may be practicably implemented, the statutory insurance mandate cannot be said to warrant its evisceration by vote of the Commission at this time. It should also be pointed out that, in lieu of purchasing the $1 million dollar “life threatening brain injury” specialty insurance coverage, section 208.15 of these regulations allows a promoter to provide proof to the Commission that all participants on the card are covered by health insurance inclusive of accidental injury coverage with a benefit of at least $1 million dollars per person in the event of a life threatening brain injury.
Comments were also received with respect to the Commission’s proposed language to more clearly define the statutory term, “life threatening brain injury,” and to provide clarity with respect to the circumstances that trigger coverage. Such language was criticized as an attempt to “inappropriately limit insurance coverage.” One commenter fundamentally objected to any clarification of the term or causality, arguing that “the language instead should reflect the uncertainty found in the medical literature and apply to any traumatic brain injury. . . that could result in mortality” and that “the regulations should clarify that any. . . life-threatening brain injury that develops as the result of cumulative blows to the head is covered.” Another commenter echoed such objection in opposing any time limits for the diagnosis of a life threatening brain injury. The Commission’s action was taken after extensive consultation with insurance industry representatives who advised that clarifying definitions of key terms was essential to their ability to draft and file policies providing for the newly required coverage, and in consultation with the Department of Financial Services and the Commission’s Chief Medical Officer. Moreover, the objections run counter to the import of the statutory language, which provides that insurance is to be provided for a specific condition, i.e., a “life threatening brain injury,” conditioned on the existence of an “identifiable, causal link” between “a program operated under the control of. . . [a] licensed promoter” and the professional licensee’s “participation in such program.” Should the legislature have wished to expand coverage to any brain injury, it would not have used the modifier “life threatening.” Additionally, the statute links such injury to a singular program operated under the control of a promoter, indicating that the intent of the Legislature was to provide coverage for an injury sustained at a single event and not to provide coverage for cumulative injuries arguably sustained over years of combat. Such intent is made crystal clear by juxtaposition with Section 10 of the Act’s charge to the Department of State to “carefully consider potential mechanisms to provide financial resources for the payment of expenses related to medical and rehabilitative care. . . [for combatants] who experience debilitating brain injuries associated with repetitive head injuries sustained through their participation in combative sports” and to report its findings 2018. No change in response to this comment have been made.
Some comments questioned the lack of regulatory guidance with respect to the licensure of gyms and training facilities. In fact, the responsibilities and proper conduct of such entities is fully set forth in the Act itself. Licensure is conditioned on the demonstration of a capacity to meet certain health and safety standards, including, among other things: the availability “of a person trained and certified in the use of. . . first aid materials and procedures for cardio-pulmonary resuscitation.” The Commission does not perceive a need to promulgate additional regulations in addition to such statutory guidance. The Commission notes that its application forms and onsite audits of each facility are the mechanisms through which it ensures compliance with the requirements of State law in this area.
One commenter recommended that the Commission not embrace all of the recent changes to the Unified Rules of Mixed Martial Arts voted on and approved by the Association of Boxing Commissions in August of 2016. Section 212.10 of the rules is intended to generally accord with the accepted standards for the conduct of mixed martial arts and therefore tracks the Unified Rules with regard to fouls. Of note is that the ABC’s Unified Rules changes are not effective until January 1, 2017 and the relevant provisions of these rules provide the same.
Two comments were received taking issue with the requirement that an ambulance be present at all professional wrestling events. The Commission is aware that the current practice of some wrestling promoters is to maintain an ambulance at an event at a cost of approximately $350 to $500 per event. When weighed against the potential need for quick hospital transport to best ensure the health and safety of professional wrestlers, the Commission has deemed the cost associated therewith to be justified.
Several comments were received regarding the requirement that a combative sports participant “rest” a minimum of 7 days between a match or exhibition. Commenters requested clarification regarding the scope of that rule. Such requirement, if applied to kickboxing, would disallow the current practice of tournament combat. The commenters note that protocols assuring the safety of the combatants, including the approval of the ringside physician, are observed. The rule has been clarified.
A single commenter urged the prohibition of “mixed sex matches” for both boxing and professional wrestling. With respect to boxing, the matter is dealt with through the rules requiring commission review and approval of any and all proposed matches, which requires consideration of health, safety, competitive fairness, common industry practice and the best interests of the sport. For wrestling, which was significantly deregulated by State law in 2002 when it was defined as not comprising bona fide athletic competition, commission match review and approval has not been a part of the regulatory framework. The law being implemented by these rules continues this restrained posture for professional wrestling exhibitions.
A comment suggesting that the Commission adopt by reference the World Anti-Doping Agency (WADA) list of prohibited substances in addition to promulgating its own is, at this time, rejected. However, the matter will be considered for potential future action by the Medical Advisory Board and the Commission.
Two comments suggested that the Commission’s authority to “modify” a bout contract should be clarified, and that without such clarity it appeared overly broad. This provision, which tracks the existing section 206.14, is meant to provide authority to strike a contractual provision in a bout contract for a match to take place within the State which is contrary to applicable laws and rules of the State of New York. It has been amended to clarify such intent.
One commenter generally urged the harmonization of provisions which are perceived as “both duplicative and arguably contradictory” and “narrowing the proffered regulations.” Duplicative provisions have been harmonized and clarified, throughout the regulations. Specific issues of concern with respect to jurisdiction and prescribed practice and the Commission’s response thereto are as follows:
- Oversight and filing of promoter/fighter contracts should be limited to those regarding matches or exhibitions held in New York State: Such clarification has been adopted.
- Jurisdiction to “invalidate, enforce, mediate, arbitrate or modify” contracts related to the conduct of authorized combative sports in New York State should be limited to “agreements that bear directly on the State’s regulation of the event and income resulting therefrom: Such clarification has been adopted.
- It should be clarified that broadcast agreements should not require the prior approval of the Commission: Such clarification has been adopted.
- Commission jurisdiction over contracts may extend to those executed prior to the effective date of the legislation: The Commission will exercise its jurisdiction only with respect to events held on or after the effective date of the legislation, i.e., September 1, 2016. No additional regulatory clarification is necessary, as no retroactivity provision is included within the rules.
- Commission jurisdiction to generally inquire into “any matter which may affect combative sports in New York is overbroad: The Commission disagrees. Statute provides the Commission with broad authority to “act in the best interests of sports. . . to protect the health, safety and general welfare of all participants in combative sports and spectators thereof, to preserve the integrity of combative sports through means of licensing, oversight, enforcement and the authorization of sanctioning entities, and to facilitate the development and responsible conduct of combative sports throughout the entire state.” The power to conduct inquiry and investigation is critical to the effectuation of such responsibilities and will not be diminished.
- The general requirement to retain “records relating to licensed activities” should be clarified: The Commission has amended this language to clarify that records may not be destroyed for the purpose of obstructing a Commission inquiry or review.
- The regulations relating to the financial fitness of a promoter are duplicative and potentially confusing: The Commission has reviewed the cited regulations and finds them appropriate.
- The provisions on deductions to a fighter’s purse are confusing and arguably contradictory. The Commission does not agree. The two regulations at issue should be read together. Section 209.16 provides for a minimum purse of $150, whereas section 209.10 provides that a combatant should receive at least 50% of a contracted purse amount after deductions. Moreover, through the bout contract filing process the Commission accepts and authorizes circumstances where specific payment arrangements have been agreed upon by promoters and combatants that may vary from the specified amount and percentage, as provided for in the text of both rules.
- The bond required for the promoter’s performance of its responsibilities should not extend to “the legitimate expenses of printing tickets and all advertising material” as “outside our dealing with the Commission”: The statute requires that as a condition of licensure, a promoter post a bond for the “the legitimate expenses of printing tickets and all advertising material” (NY General Business Law 1015).
- Event date reservation should be limited and on a first come, first serve basis: The Commission finds that such guidance is more appropriately provided in policy and practice, and does not require a rule change at this time.
- Section 201.7 could be read to provide that an entire event could be stopped merely because an individual participating therein is unlicensed: While an event could be halted if a key individual is unlicensed, the intent of the rule is simple to assure that only licensed individuals may undertake activities which require licensure. The Commission does not agree that the section requires additional clarification.
- Section 210.12’s prohibition on the presence of a suspended or revoked licensee at an event is excessive: The intent of the rule is to provide authority in the Commission to deny attendance to suspended or revoked individuals who have been explicitly found guilty of “conduct detrimental to the best interests of boxing or mixed martial arts”. The rule has been clarified to so state.
- Commission authority over ticket issuance is unnecessary: The Commission disagrees. Such rules are intricately tied to tax requirements and appropriate labelling. The Commission’s rules in this regard have been in practice for decades in the sport of boxing and have not been found to be detrimental or unduly burdensome.
- The refund and posting provisions with regard to card changes are “contrary to the very nature of combat sports” and should be stricken: The Commission disagrees. The regulation is in the consumer interest and assures that a ticket purchaser may be made whole in the event that the fight he or she wanted to view is cancelled or a combatant substitution is made. Moreover, the rule only pertains to a substitution or cancellation of a main event. Thus, this provision is unlikely to have a significant impact on the conduct of an event.
- More clarity is needed with respect to the requirements for weigh-in locations: The Commission recognizes that there may be many and varied venues appropriate for weigh-ins and the specific and sometimes unique circumstances attendant to each event. Such variety makes problematic explicit rules with respect to facility attributes. In exercising its approval authority, the Commission will seek to ensure the safety and well-being of the professional licensees and all attendees.
- With regard to the confidentiality of certain documents, the Commission should limit the scope of items it can request and provide that documents submitted in the course of a disciplinary proceeding be deemed confidential: The Commission does not agree. As previously noted, the Commission must retain authority to conduct the inquiries and investigations it deems appropriate to fulfill its statutory mission. The documents it retains will be afforded confidentiality or not in accord with law and regulation. With respect to its quasi-judicial disciplinary actions, the documents presented therein, and the determinations and record, are generally a matter of administrative and public record. Except for private information and other matter required to be withheld at law, it is not in the public interest to withhold them.
Several commenters representing the interests of boxing promoters within the State were concerned that the rule’s requirements regarding contract oversight and information disclosure between boxing promoters and boxers, as carried over from prior law, are “arbitrary and unfairly singled out boxing” because they were not also applied to the mixed martial arts industry. The rules at issue were developed over years of experience with the boxing industry in New York and have been continued, unchanged, for the economic protection of fighters in light of the well documented, exploitive practices which have plagued the boxing industry for decades. The commenters acknowledge the requirements of the federal Muhammad Ali Boxing Reform Act, which require certain protections and are tracked in the regulations, and that the Commission’s legitimate interest in continuing to regulate in the interests of the fighters is present and necessary. While consistency of approach between boxing and MMA may appear “fair,” the activities are not the same, have independent and unique histories, and have been treated differently in this respect by law. For instance, the federal Muhammad Ali Boxing Reform Act, did not apply enhanced contract and financial disclosure requirements beyond the boxing industry, even though it was enacted in 2000, at a time when MMA already existed as a new but rapidly growing sport and industry. In enacting the Ali Act, Congress found “repeated occurrences of disreputable and coercive business practices in the boxing industry, to the detriment of professional boxers nationwide.” To date, federal lawmakers have not found it necessary to expand the Ali Act requirements to the mixed martial arts industry or to scale back those requirements for the boxing industry, despite the additional fifteen years of experience with both industries. The State of New York’s experience with the professional mixed martial arts industry is just beginning, and the basis for such a protective approach does not appear to exist in MMA at this time. The Commission intends to observe and learn from its oversight of both industries’ activities within the State in the coming years, and will respond appropriately based on the circumstances and facts presented. As such, the application of rules uniquely designed to deter such practices in the boxing industry need not be altered at this time.
Another commenter took issue with several rules as applied to the conduct of boxing. Specifically:
- The Commission omitted crucial requirements with respect to the reporting of illnesses of licensed combatants: The Commission did not omit such crucial requirements. The duty to report information concerning an illness or injury is now covered by sections 208.4, 208.9, and 213.8. The duty of all licensees to carry out their contractual obligations is now provided for at section 209.3. No changes are required.
- In prohibiting the throwing in of a towel, the Commission inappropriately rescinded a corner’s ability to stop a fight: A participant’s seconds and managers are instructed to notify the Commission Inspector assigned to their corner, or, if in between rounds the referee directly, if they wish to stop a fight. The rule about throwing in the towel is not a figurative prohibition on ability of a corner to stop a fight, but rather a literal prohibition on the act of throwing a towel into the ring in the midst of the bout. No changes are required.
- The rules should detail more particularly the “details as to what the elements of dehydration mean to protect. . . athletes”: The weight loss and dehydration rules prohibit the loss of one-percent or more of the fighter’s body weight within the 24 hours prior to the match, and provide that a combatant may be disapproved for participation in a match or exhibition if, in the professional medical opinion of the reviewing physician, it would be unsafe for the combatant to compete in the match or exhibition due to a finding of dehydration or extreme weight loss. The rules also require monitoring of all combatants during a fight, and require a post-bout examination of each combatant by a physician. The discharge instructions provided by the physician are intended to address injuries and adverse findings made in the professional medical opinion of the evaluating physician. Further, the rules require the provision of a minimum of $50,000 in medical, surgical and hospital care coverage for any injury sustained as a result of a professional boxing or professional mixed martial arts program, which in itself matches the highest levels required by any other state in the nation. No changes will be made at the present time. However, should the Commission find additional protections necessary, it will certainly consider additional regulatory action.
Finally, some commenters expressed concern that authorized sanctioning entities currently doing business will be forced to temporarily stop doing business while their applications are pending with the Commission. It is anticipated that upon receipt of a complete and competent application for licensure, the Commission will expeditiously process an application and disruptions to the industry are not anticipated. While some commenters urged authorization for pre-existing sanctioning entities operating in New York State (i.e., “grandfathering”), it should be noted that Chapter 32 of the Laws of 2016 did not carry over authorization of any entity previously listed in NY Unconsolidated Laws section 8905-a and requires the Commission to license and authorize any such entities before they are legally approved to oversee the conduct of combative sports after September 1, 2016.
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