Losers by AKO: Round 1

As a New Commissioner of the New York State Athletic Commission Begins Her Tenure, The Question is Begged as to Whether Two Former World Champions That Were Placed on Administrative Suspension by Her Predecessor Could Have Done Anything to Reclaim Their Boxing Licenses

by Paul Stuart Haberman, Esq.

Throughout the 1990s, Evander Holyfield and Junior Jones were among the boxing elite. Holyfield, a 1984 Olympic bronze medallist, former undisputed cruiserweight champion, and one-time undisputed heavyweight champion of the world punched his way into boxing immortality through a series of exciting fights, including his epic trilogy with fellow heavyweight champion Riddick Bowe and his crushing knockout of Mike Tyson. Jones, a former two-time New York Golden Gloves champion as an amateur, rose to prominence with a hard-fought unanimous decision win over Jorge Eliecer Julio for the WBA bantamweight title, and sealed his place in boxing history with back-to-back victories over the previously undefeated Mexican legend-in-the-making Marco Antonio Barrera for a portion of the super bantamweight crown. Like many top boxers before them though, both Holyfield and Jones took their share of losses against their younger peers as they got older and inched towards veteran status. Perhaps the most devastating blows they ever received, however, came not from any of their opponents in the ring, but rather from the New York State Athletic Commission (hereinafter the “Commission”) and its former Commissioner, Ron Scott Stevens. The punch thrown: an administrative suspension.

Holyfield was placed on administrative suspension in 2005 following a lopsided points loss to fringe heavyweight contender Larry Donald at Madison Square Garden. His loss convinced the Commission that his skills had eroded to such a degree that he should not be boxing in New York anymore. Jones, who was planning a comeback, was given his suspension around the same time after the Commission decided he had “diminished skills,” despite not having fought in three years. In an instant, Holyfield became a marginalized, but still lucrative boxer fighting both overseas and under the auspices of some of America’s weakest boxing commissions, while Jones was effectively retired by the athletic commission of the very state where he fought his way into amateur boxing greatness. Neither appealed their suspension. While many boxing cognoscenti felt that Holyfield and Jones were being saved from themselves by their respective suspensions, the laws governing the use of the administrative suspension beg the question: How would Holyfield and Jones have successfully contested their suspensions? Or, to put it another way, how could they have avoided being losers by administrative knockout?


The Definition of Administrative Suspension and Its Implications

Under Section 1812 of the Unconsolidated Laws of New York, the New York State Athletic Commission is given the power to exercise its discretion when issuing boxing licenses so that it may determine whether the “financial responsibility, experience, character, and general fitness of an applicant…are such that participation of such applicant will be consistent with the public interest, convenience or necessity of the safety of boxing and wrestling participants and with the best interests of boxing or wrestling generally[.]” In its exercise of this discretion, the Commission is empowered to issue both medical suspensions, which are based on objective medical findings of a fighter’s temporary or permanent unfitness to box, and administrative suspensions, which are subjective and based on any number of factors, including personal observations of members of the Commission and anecdotal evidence from people around boxing.

The differences between the two types of suspensions are significant. Under a medical suspension, a professional boxer is not permitted to receive a license to box for a fixed or indefinite period of time in any member commission of the Association of Boxing Commissions, the organization that promotes uniformity in boxing throughout the United States, the Native American Tribal Nations, and Canada. If a boxer is administratively suspended by an individual commission, however, another state, tribal nation, or provincial commission may use its discretion in determining whether or not to license a suspended boxer to fight. Notations regarding both types of suspension are made in a compendium put together by Fight Fax, Inc., the official record keeper of professional boxing. Each commission has access to the suspension information contained in Fight Fax, Inc.’s database and can base their decisions on whether or not to issue licenses based upon the information within.


The Appeals Process for a New York State Athletic Commission Suspension

The New York State Athletic Commission is mandated to deliver all bulletins and notices to its licensees to the licensee’s registered address. Once a boxer is suspended by the New York State Athletic Commission and receives notice of same at his registered address, he is entitled to submit a written request for a hearing “to determine whether such suspension should be rescinded” within 30 days after “the date of notice of suspension.” At the hearing, “licensees and other witnesses shall testify under oath or affirmation, which may be administered by any commissioner or authorized representative of the commission actually present.” The New York State Athletic Commission is the “sole judge of the relevancy and competency of testimony and other evidence, the credibility of witnesses, and the sufficiency of the evidence” presented at the hearing. After the hearing, “the commission representatives conducting the hearing shall submit findings of fact and recommendations to the commission, which shall not be binding on the commission.”


In the case of administrative suspensions, the above-referenced procedure may seem absurd when its application is contemplated. That is because, in essence, the boxer must petition the New York State Athletic Commission within a month of his administrative suspension to argue that he does not have, for example, “diminished skills” and that the Commission’s subjective observations and conclusions are flawed. Further, the onus falls entirely on the boxer to disprove the basis of the administrative suspension and not at all on the Commission, which must simply furnish a rational basis for their decision to suspend the boxer and does not need to assign any probative value to the evidence presented. In short, the boxer-petitioner is telling the same administrative body that just deemed him unfit to fight anymore that he is fit to continue fighting through the presentation of evidence that the Commission need not consider. Even if the appeals process sounds like an exercise in futility, however, an attempt to bypass the initial appeal can be fatal to a boxer’s chance to get his suspension lifted. This will be discussed more below.


Taking The New York State Athletic Commission to Court

Under Article 78 of New York State’s Civil Practice Law and Rules, an individual that is aggrieved by the action of an administrative agency may file a lawsuit against that agency to challenge the basis of its determination. Among the issues that may be raised in an Article 78 proceeding “is ‘whether a determination was made in error of law or was arbitrary and capricious or an abuse of discretion[]’” or “lacking a rational basis[.]” An Article 78 proceeding “must be commenced within four months after the administrative determination to be reviewed becomes ‘final and binding upon the petitioner.’” Only when the individual seeking review has been harmed by the administrative determination does it become “final and binding.” Necessarily then, when an agency creates the impression that a determination was intended to be non-conclusive, the statute of limitations does not start to run.

Generally, an individual seeking to file an Article 78 proceeding must first exhaust all of his administrative remedies, meaning that if the government agency that suspended them had an in-house appeals process, the individual would first have to go through that appeals process before he could seek relief from the courts. A court may dismiss an Article 78 proceeding for not utilizing said appeals processes. An exception to the general rule arises if an aggrieved party can establish that it would have been futile to exhaust all of their administrative remedies prior to filing an Article 78 proceeding. This can be demonstrated by showing that the appeals process set up by a particular agency has an air of futility, either because those reviewing the appeal are the exact same people that issued the suspension in the first instance, that employees of the agency displayed an animus unique to the individual prior to his suspension, or otherwise.

The New York State Athletic Commission is a New York State administrative agency and, as such, is subject to judicial review through an Article 78 proceeding. Prior to filing an Article 78 proceeding against the Commission, a boxer placed on administrative suspension must first go through the initial hearing detailed above. If a boxer were to bypass the hearing and simply file an Article 78 lawsuit, a court would be well within its discretion to dismiss the lawsuit for failure to exhaust his administrative remedies. That is, of course, unless they can demonstrate to the court that it would have been futile based upon the rationale provided by the Commission for their administrative suspension.

Round 2: Tomorrow.

[This article will be published in the Spring 2009 issue of the New York State Bar Association's Entertainment and Sports Law Journal]


Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, L.L.P. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. Mr. Haberman represented Junior Jones’s manager back in 2006. ©

Did Inaction Lead to The Worst Performing U.S. Olympic Boxing Team in History?

Whether U.S.A. Boxing Could Have Done More to Get Medal Favorite Gary Russell, Jr. the Opportunity to Compete in the Beijing Games

by Paul Stuart Haberman, Esq.

During the early morning of August 8, 2008, United States Olympian Gary Russell, Jr., the boxing team’s bantamweight (119 lbs.) entrant, went for a run in a vinyl sauna jacket around the Olympic Village in Beijing to lose his final one pound and four ounces in order to make the bantamweight limit for the weigh-in a few hours later. That morning, for the first time in a deep amateur boxing career in which Russell earned nearly 200 victories and won such tournaments as the 2004 Junior Olympics, and the 2005 U.S. Championships and National Golden Gloves, Russell’s body failed him. He collapsed from dehydration upon returning from his run and was unconscious for close to five minutes. Though he was re-hydrated in advance of the morning’s weigh-in, Russell was not medically cleared to weigh-in and was disqualified from the Olympic competition. In an instant, 16 years of toil and achievement reached a heartbreaking conclusion for the U.S. bantamweight. A boxer that was once compared to Sugar Ray Leonard by the legend himself was rendered ineligible to try to match Leonard’s 1976 Olympic Games achievement.

In the absence of Gary Russell, Jr., who was generally regarded as a strong medal favorite, the U.S. Olympic Boxing Team went on to its single worst showing in Olympic history. The team won a single medal, a bronze in the heavyweight division. While officials from USA Boxing, the organization in charge of amateur boxing in United States, asserted that they reviewed the applicable laws surrounding the amateur boxing competition to see if they could petition for Russell to weigh-in later but found nothing in the applicable laws from which to construct an argument[1], a review of those laws raises serious questions as to whether that was the case. This article will focus on the relevant provisions of the laws applicable to amateur boxing in Beijing Olympics and show why the U.S. Olympic Boxing Team may have been the worst in history due to little more than the default and inaction of USA Boxing.

The International Amateur Boxing Association Technical and Competition Rules

Rule 5.1.1

The International Amateur Boxing Association Technical and Competition Rules (hereinafter “AIBA Rules”), effective May to August 31, 2008, were the rules that governed the amateur boxing competition in the Beijing Olympics. Rule 5.1.1 of the AIBA Rules reads:

“[t]he contestants of all weights should be ready to weigh-in on the day before the start of the competition. The time from the end of the weigh-in to the start of the first day of the competition should not be less than 6 hours. The time from the end of the weigh-in to the start of the remaining days of competition should not be less than 3 hours. The Technical Delegate of the event reserves the right to relax this condition, if unavoidable circumstances occur and after consultation with the Chairman of the Medical Jury.” (emphasis added)

It is epidemic in both the amateur and professional boxing worlds that no matter how hard many athletes prepare, there is generally a last minute drive to take off the final excess weight in advance of their pre-fight weigh-ins. While a majority of boxers lose the weight without complications, including Russell himself on scores of occasions, the effort often exacts a toll on a boxer’s body. This is what led to Russell’s collapse on the morning of August 7, 2008.

After Russell’s collapse, the question from a legal standpoint was whether, under the AIBA Rules, a petition could have been made to relax the conditions of Rule 5.1.1 in order to allow him to weigh-in at a later time. Russell, as well as the other bantamweight boxers in the Olympics, were not scheduled to have their first round bouts until August 12, 2008, four days after the weigh-in. More importantly, Russell’s effort to lose the final one pound and four ounces resulted in a medical emergency, his lapse into unconsciousness. A cognizable argument could have been advanced by USA Boxing that Russell’s collapse was an “unavoidable circumstance” of his effort to make weight. The Chairman of the Medical Jury at the Beijing Games could have then been consulted about the situation and given his approval for the Technical Delegate[2] to “relax [the] condition” that Russell had to weigh-in at the same time as the other boxers in the competition and have his opportunity to recognize his Olympic dream.

There are three major counterpoints to the above argument. The first is that allowing Russell to weigh-in later would have given him an unfair advantage over his fellow competitors. However, given that Russell had already been re-hydrated by the time that the weigh-in actually took place, the short delay would not have created much of an advantage. Even more detrimental to that argument is that while the amateur boxing competition, as a whole, began the day after the weigh-in, the bantamweights were not scheduled to have their first round matches until August 12, 2008, four days after the weigh-in. Any advantage that Russell could have gained, therefore, from being allowed to weigh-in later would have been moot, as each bantamweight had ample opportunity to re-hydrate by that point. Furthermore, if anything, Russell would have been at a disadvantage as it would have been Russell and Russell alone that had the least time to re-hydrate before his first round match. Even then, he had two to three more days than professional boxers generally do to carefully replenish himself.

The second major counterpoint is that Russell’s collapse did not qualify as an “unavoidable circumstance” since he lost consciousness for a reason related to the competition, and not because of any circumstances that were both “unavoidable” and unrelated to his efforts to make weight.[3] The problem with this argument is twofold. First, interpreting the Rule 5.1.1 that way effectively punishes the athlete for his thoroughness and diligence in doing his part to participate in the competition. It seems unlikely that the intention of Rule 5.1.1 was to create a rigid, non-appealable punishment of competitors that encountered trouble making weight. Secondly, given the date of the enactment of the applicable AIBA Rules (May 2008), the idea that Russell’s collapse was not an “unavoidable circumstance” was an open legal question in the absence of any guiding precedent, as it had likely not been interpreted as yet by either AIBA or the Court of Arbitration for Sport, to which AIBA’s decisions can be appealed. Without such precedent, USA Boxing effectively let its own interpretation as to what constitutes an “unavoidable circumstance” guide it and declined to make the necessary argument to make sure Russell’s ability to compete was protected to fullest extent under the AIBA Rules.

The third major counterpoint relates to Rule 7 of the AIBA Rules. Rule 7 will be explored below.

Rule 7

Rule 7.1.1 mandates that “[t]he draw for the Olympic Games shall be held one day before the competition.” At the same time, Rule 7.6 states that “ [i]n any case, until the last weight category draw is completed, if there is any mistake or unavoidable circumstance taking place, the Technical Delegate has the right to order the particular weight draw(s) to be done again.” (emphasis added). Though these two subparts of the same rule appear to be in conflict with each other, strict adherence to Rule 7.1.1 would have made it impossible to find “any mistake or unavoidable circumstance taking place” at the Beijing Olympics that would lead a particular weight draw to be done again, no matter what had happened to any of the individual boxers.

Further, the verbiage “taking place” within Rule 7.6 suggests that the rule is meant to address problems with individual boxers during the scheduled time of a weigh-in. At the time that Russell collapsed, he had an 105 fever and was extremely dehydrated. Even with medical assistance, the effects of each had not fully passed by the scheduled time of the weigh-in. In short, Russell’s medical problems were still “taking place” at the time. And, as discussed above, an argument could have been forwarded by USA Boxing that his collapse was an “unavoidable circumstance” of his efforts to make weight for the Olympic competition. The third major counterpoint to the argument in favor of the application of Rule 5.1.1 in order to seek a later weigh-in, that the draw for the Olympic Games had to be held one day before the competition in accordance with Rule 7.2, could have therefore been challenged by USA Boxing by virtue of the wording of Rule 7.6. This is especially true when one considers that the bantamweights were not scheduled for their first round matches until four days later, as there would not have been a real disruption of a draw in which no bouts had occurred.

Olympic Movement Medical Code

The Preamble of the Olympic Movement Medical Code (hereinafter “Medical Code”) states that the Medical Code “is intended to apply to the Olympic Games” and “recalls the basic rules regarding best medical practices in the domain of sport and the safeguarding of the rights and health of the athletes.” Under Chapter 1, Section 5.4 of the Medical Code, “[a]thletes have the right to choose and change their own physician, health care provider or health care establishment, provided that this is compatible with the functioning of the health care system. They have the right to request a second opinion.” Russell was seen by doctors the morning of August 8, 2008, who revived him, but did not clear him to weigh-in.[4] It is unclear, however, as to whether Russell sought a second opinion on his own or had even been advised by USA Boxing that he could seek one. A second opinion, provided after he had been revived, could have resulted in a medical clearance for him to weigh-in. As an Olympian, Russell was entitled to same under the Medical Code.

A counterargument to Russell’s right to a second opinion arises from Chapter 1, Section 6.8 of the Medical Code. Chapter 1, Section 6.8 reads, in relevant part, that : “[a]t sports venues, it is the responsibility of the team or competition physician to determine whether an injured athlete may continue in or return to the competition.” The argument could, therefore, be made that it was within USA Boxing and its physicians’ discretion to determine whether Russell was medically capable to continue under the Medical Code. However, the fact remains that Russell was entitled to a second opinion under the Medical Code and does not appear to have received one. When the two provisions of the Medical Code are read together, it would appear that, once a second opinion was given, it would then fall to USA Boxing and its physicians to determine whether Russell should be given medical clearance to weigh-in.

Conclusion

There is a strong indication that USA Boxing did not make every effort to save the Olympic bid of Gary Russell, Jr. after his collapse before the weigh-in in Beijing. It is a basic canon of any attorney’s practice to make any and all non-frivolous arguments that can be made in the advancement of the interests of your client. Had USA Boxing done the same with regard to Russell, he could have at least come home from Beijing knowing that the team that he spent 16 years toiling to become part of did everything they could for him, regardless of whether or not any petition was successful. And if such a petition had been successful, one of the team’s top medal favorites could have attempted to save the team from its worst showing in Olympic history and fulfill a lifelong dream.

[Post-script: I should note that while dehydration was the reason cited in the press, Russell's collapse was never conclusively linked to dehydration by medical personnel in Beijing. Indeed, several other people encountered similar medical problems during their stays in Beijing and a number of possible etiologies have been discussed. The prospect that it was not, in fact, dehydration that caused Russell to collapse and instead was something else outside of Russell's knowledge or control would only bolster the above arguments in Russell's favor.]

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, L.L.P. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. Mr. Haberman is Gary Russell, Jr.’s attorney. ©

[1] Les Carpenter, Wilder, Yanez Win to Keep Hopes Alive for American Fighters, Washington Post, Aug. 14, 2008, at E07.

[2] According to Appendix A of the AIBA Rules, the duties of a Technical Delegate include “[t]o supervise/monitor the arrangements for the draw, the weigh-in, the medical examination and the daily schedule of the contests” and “[t]o liase and cooperate with the Chairpersons of the Referees & Judges, Technical & Rules and Medical Commission, whose duties, powers and responsibilities are outlined in the AIBA Statutes.” The Olympic boxing competition was mandated to have two Technical Delegates pursuant to AIBA Rules for Competition Officials Rule 1.2.3.

[3] Carpenter, supra. An AIBA spokesperson suggested that the rule was meant more for “natural disasters” and that it could not have been considered unless Russell had actually shown up for the weigh-in. It should be noted though that AIBA spokesperson did not note whether the term “unavoidable circumstances” had ever been interpreted that way by the Court of Arbitration for Sport, which is the legal body employed for the resolution and appeal of disputes related to the statutes, regulations, and decisions passed by AIBA, AIBA confederations, or AIBA members. See Article 12(e) of the International Boxing Association Statutes.

[4] Les Carpenter, Boxer’s Parents: ‘No Fat to Burn’, Washington Post, Aug. 10, 2008, at D11.