The tragic death of Joao Carvalho on Monday has reignited debate over whether professional mixed martial arts fights should be banned.
However, legal analysis would suggest that the premise of the debate is misconceived.
There is considerable ambiguity as to whether such professional fights are legal – and a strong argument to suggest they are not.
Therefore, it may be more accurate to ask whether we should in fact specifically legalise the sport.
In a 1994 consultation paper, the English and Welsh Law Commission stated that deliberately inflicting serious injuries in martial arts contests would constitute a criminal offence, unless there was a specific legal exemption for such conduct.
This conclusion was repeated more forcefully in a second consultation paper in 1995.
Professional boxing is said to enjoy such an exemption in Ireland, England and Wales by virtue of court decisions dating from the late 1800s.
No such exemption exists for mixed martial arts and it is not clear that the exemption that has been carved out for boxing is enough to accommodate mixed martial arts.
While causing a temporary brain injury to your opponent signifies victory in both sports, rightly or wrongly many perceive the distinguishing factor between them to be a higher degree of violence being tolerated in mixed martial arts.
However, perhaps the stronger distinction is that boxing has the benefit of well-planted, social and historical roots, which mixed martial arts have yet to put down.
Successful prosecution
If there is no exemption for mixed martial arts from the basic laws that criminalise deliberately inflicted injury, then much lies in the hands of the
Director of Public Prosecutions
and the courts.
Any successful prosecution would effectively clarify that there was no special exemption for professional mixed martial arts contests, and therefore that such contests were unlawful.
This could plausibly drive the sport underground, which in turn would lead to a lack of adherence to safety precautions designed to protect fighters.
Moreover, a ban would not limit mainstream exposure to the sport given that highly publicised fights would continue to take place in other jurisdictions.
If prohibiting the sport makes it even more dangerous, and as a society we want our laws to be clear, legalisation through regulation may be the best option.
Minister of State for Sport, Michael Ring, has indicated his intention to regulate mixed martial arts following the death of Carvalho.
The initial suggestion appears to be that Sport Ireland would regulate the sport.
However, traditionally the Irish Sports Council – Sport Ireland's statutory authority – does not regulate sports: it recognises sports.
Such recognition criteria in the past have only been about demonstrating that a solid organisational structure is in place.
Such recognition for mixed martial arts would, in effect, legitimise the the sport’s regime of self-regulation.
However, industry self-regulation is not a popular option in jurisdictions where mixed martial arts have a stronger foothold, such as Australia and the United States.
Notoriously fragmented
Indeed, regulatory reports from
Queensland
and Victoria in 2007 and 2008 respectively, recommended against self-regulation for mixed martial arts for a number of reasons, including the difficulty in assessing the effectiveness of such self-regulation in a sphere that is notoriously fragmented, with a multitude of competing organisations running different competitions with different rules.
One way forward would be to follow the example set in many states of Australia and the US, where independent commissions have been established, composed of industry and medical experts which are primarily funded by levies on the industry.
These bodies are responsible for setting minimum rules for what is permitted in fights, as well as supervising bouts, ensuring that appropriate systems are in place in case of medical emergencies, and ensuring that referees and other officials have met certain regulatory standards.
Such regulators also monitor fighters by reviewing fight records, intervals between fights, and ensuring medical tests – including MRI scans – are undergone.
Given the inherent danger of professional mixed martial arts fights, a system of recognition and self-regulation is insufficient.
The same is true for professional boxing. Instead, robust independent regulation is required to ensure that, if consenting adults wish to the take on the risks involved in such contests, those risks are controlled and mitigated insofar as possible.
* Dr Stephen King has researched the regulation of mixed martial arts and lectured on sports law at the University of Limerick