Many Mixed Martial Arts fans are very familiar with recent epidemic of Performance Enhancing Drugs (PEDs) and doping in combat sports. As sports handicappers and bettors, we all have more than likely bet on a fight that involved a failed drug test. Whether it was Nick Diaz vs Anderson Silva or Hector Lombard vs Josh Burkman, many sportsbooks leave there bettors out in the cold by implementing a 24 hour sports bet grading rule. This makes refunding bets when fights are eventually ruled a no contest as a result of the a failed drug test a nonissue. It’s basically the terms of the service use that we all agree to when we sign up or place a wager. However, when money is involved with sports betting, it’s hard implement refunds 30 days after a contest result. Sometimes with appeals and delays it can take even longer to actually produce an official result of a no contest. The current UFC drug policy in partnership with the Athletic Commissions are looking to take it a step further in declaring a losing fighter a winner of their winning opponent fails a drug test. Making this complicated for sports books if they did not exercise the 24 hour rule/policy. The very notion that money is involved in a combat sports contest opens the door to acts which suggest that PED use can amount to some degree of fraud. These types of illegal behaviour could be categorically deemed to fit the criteria of potential match fixing. Therefore, a doping athlete can be exposed not only to regulatory consequences but also criminal and civil repercussions as well. This very well might sound outlandish as PEDs are almost so common in nature in the sport of MMA that we’ve gotten used to them rearing their ugly head as it’s not uncommon to see the sports biggest stars get caught up in PED use and also deal with ongoing accusations thereafter. By using PEDs, are fighters cheating the fans? It’s unlikely perceived that way from a immediate viewership standpoint as fans have witnessed PEDs clearly enhancing the performance of the spectacle which is combat sports. However, the other argument I have listened to is that fighters caught using PEDs should potentially be charged criminally with some sort of an assault or battery. As those licensed participants in a combat sports consent to a fair fight. So it begs the question as to who actually feels the most cheated when a fighter uses PEDs? It’s clear those punished hardest are people who placed wagers on the fight as well as the fighters that lose to cheaters considering everything is performance-based in this sport. Last week the Supreme Court of Canada released reasons for judgement that easily can translate over into combat sports within the scope of this very issue. Giving weight to mere suggestion that these acts of failed drug test are grounds for fraud. In a nutshell, the Supreme Court supported a decision finding that doping in sports does indeed amount to criminal fraud. Even though the specific case involved doping in horse racing, the judgement was specific to all sports. R. v. Riesberry involved hearing a criminal case stemming from an Ontario Court of Appeal decision. The summary of that case is as follows:
The Respondent Riesberry, a licensed horse trainer, was captured by a hidden video camera injecting something into the trachea of a horse at a racetrack. An hour later the injected horse was raced and finished in sixth position. A month later the Respondent was arrested at the racetrack where a search of his vehicle revealed a syringe filled with a combination of the drugs epinephrine and clenbuterol (which can be used as performance-enhancers). The use of the drugs in horses on racing day, as well as the possession of a loaded syringe at a race track, are both prohibited by regulation. The respondent was charged with fraud and cheating at play with the intent to defraud members of the public engaged in the wagering of money on the outcome of a horserace pursuant to the Criminal Code. The trial judge held inter alia that 1) the purpose of the injection was to enhance the performance of the horse, 2) the Respondent knowingly and surreptitiously brought syringes containing banned substances onto a racetrack, and 3) the injections were made for the purpose of creating an unfair advantage for a horse who had been entered in a racing event. Despite the findings, the trial judge acquitted the Respondent of all charges . The Crown appealed the acquittals to the Ont. C.A. And the appeal was granted.
The Supreme Court of Canada unanimously dismissed the appeal of Reisberry making the Ontario Court of Appeal reasoning the law of the land. As Riesberry was ordered a new trial on the cheating and attempted cheating charges, and entered convictions on the charges of fraud and attempted fraud. The consequences of the retrial and convictions of fraud cases remain to be seen. However, after reading the Supreme Court of Canada’s reasoning listed below it can be declared that Reisberry is now in a losing battle that has potential to effect all sports where PED regulations exist in the future and not just horse racing:
…Where there is an attempt (successful or not) to affect the outcome of a race through the use of banned performance-enhancing substances, such a significant breach of the regulatory scheme necessarily places bettors at risk of being deprived of their bets. Indeed, as the trial judge found, the very purpose of the injection was to create “an unfair advantage” for the respondent’s horse. It is obvious that a horse injected with performance-enhancing drugs could run differently than if it was not so injected; in fact, that appears to be at least part of the reason for the prohibition. Further, as in Drabinsky, where there is a failure to disclose material non-compliance with the regulatory scheme, it is no answer to say bettors may have relied on other factors in making their bets. Bettors were entitled to assume compliance with the regulatory scheme when weighing those others factors and coming to a final decision. Non-compliance with the regulatory scheme in a manner so as to affect the outcome of a race necessarily puts the bettors’ economic interests at risk. Bettors were deprived of information about the race that they were entitled to know; they were also deprived of an honest race run in accordance with the rules. In these circumstances, the trial judge erred in law because he failed to take account of the regulatory scheme in considering the risk of deprivation issue. Further, we agree with the Crown that the trial judge’s reliance on Vézina, supra was misplaced. In Vézina, the Bank of Montreal was a mere conduit for bonds to be submitted to the Bank of Canada and had no money of its own at risk. Here, bettors had their bets at risk. The legal analysis in Vézina has no application to this case. Finally, in our view, the trial judge’s closing comments that some bettors would have altered their betting behavior if they had known about the doping, and that the injections created “an unfair advantage” for the respondent’s horse establish that but for his errors of law, he would have concluded that a risk of deprivation had been established. In our view, each of the errors committed by the trial judge could have affected his decision on the fraud and attempted fraud charges. In the result, we conclude that the trial judge erred in law in acquitting the respondent on the fraud and attempted fraud charges and we allow the appeal from the acquittals.
Reading in between the lines it’s apparent that this decision possibly has grave consequences for doping combat sports fighters with Canada. This opens the door not just to Athletic Commission punishment but also to civil lawsuits and criminal charges beyond the regulation of an athletic commission. With many Provinces withholding regulatory powers and rights over all aspects of gambling, the potential to quantify harm and financial loss becomes limitless. Many residing in Ontario might ask to as where one can bet on combat sports through a provincial regulation such as the OLG remained to be seen. However, other provinces such as Quebec regularly offer wagering on combat sports as the Supreme Court of Canada has made it the law of the entire nation. Therefore fraud would not be just limited to the betting public but the population of as whole being the regulatory body of gambling in general. In conclusion, there still remains many complications to this verdict that remain to be clarified. The fact that a combat sport athlete licensed under the athletic commission can now be punished on three different levels in criminal, civil and regulatory makes an admission of guilt via doping something to fear on three fronts. Those fighters who stand to lose the most are those fighting under the UFC as Canada has became annual place where the promotion holds marquee events. Main event fighters making a substantial amount of money essentially have the most to lose here. Not only are they jeopardizing their livelihood and careers by risking the chance of getting caught doping, but they also face potential mandatory jail time in Canada. So as a legal advocate I’ll be one of the first on the lookout when the UFC returns to Canada in the near future and the impending drug test results. While doping fighters have been forewarned about doping as fraud, it is undoubtedly heightening the need for cheaters to be looking over their shoulder. Unfortunately, Canadian law has no bearing over those fighting in Nevada or abroad, however, lets hope this sets a precedent as something that could really curb doping in our beloved sport.