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Would an Exception Knock Out the Rule?

Whether it Would be Smart for New York State to Lift Its Medical Suspension of Lightweight Champion & Knockout Artist Edwin Valero

By Paul Stuart Haberman, Esq.

In 2004, undefeated Venezuelan junior lightweight prospect Edwin (El Inca) Valero applied for a license to box in New York State after scoring 12 first round knockouts in his first 12 professional fights. On the strength of his knockout streak, Valero was then becoming one of the hottest prospects in boxing. Valero, however, had a skeleton in his closet: a head injury sustained in a 2001 motorcycle accident. Evidence of Valero's head injury went undiscovered, or was otherwise ignored, before three bouts in California and nine in his native Venezuela, but was revealed during a MRI that he underwent for his New York State license. Valero was subsequently denied a license to box in New York and, until April 4, 2009, had not fought again in the United States. Undeterred, Valero continued his boxing career in both Japan and South America, becoming an international sensation in the process.

At the end of March, Valero, now 25-0 (25 KOs) and a junior lightweight and lightweight world champion, was granted a license to box in Texas in advance of his April 4, 2009 bout with Antonio Pitalua for the vacant World Boxing Council lightweight title. That Texas granted Valero a license was not entirely surprising to boxing cognoscenti as Texas has a history of thumbing its nose at the suspensions of other states' commissions. Indeed, Texas was the same state that granted former undisputed heavyweight and cruiserweight champion Evander Holyfield a license to box after New York State placed him on administrative suspension in 2005. However, in light of Texas' decision to license Valero, the question is begged as to whether a boxer such as Valero, who at age 27 is an undefeated two division world champion and seemingly entering into the prime of his career following a second round stoppage of Pitalua, should have the denial of his license reversed by the New York State Athletic Commission (hereinafter the "Commission") or otherwise be permitted to box in the United States by other influential commissions.

The Medical Testing Required for Licensure in New York State

In New York, in order to "obtain a license or the renewal of a license to box, all boxers shall submit to a thorough medical examination by a physician approved by the medical advisory board." Said medical examination must include "a complete physical examination, an electroencephalographic examination, electrocardiographic examination, CAT scan, dilated eye examination by a licensed ophthalmologist and laboratory and other tests and examinations as may be required by such physician and/or the commission." Underscoring the importance of the pre-licensing medical examinations, New York mandates elsewhere in its laws governing professional boxing that:

"[a]ny professional boxer applying for a license or renewal of a license...shall undergo a comprehensive physical examination including clinical neurological and neuropsychological examinations by a physician approved by the commission. If, at the time of such examination, there is any indication of brain injury, or for any other reason the physician deems appropriate, the boxer shall be required to undergo further neurological and neuropsychological examinations by a neurologist including, but not limited to, a computed tomography or medically equivalent procedure. The commission shall not issue a license to a boxer until such examinations are completed and reviewed by the commission. The results of all such examinations herein shall become a part of the boxer's permanent medical record as maintained by the commission. The costs of all such examinations called for...shall be assumed by the state if such examinations are performed by a physician or neurologist approved by the commission."

In addition, a boxer shall present to the Commission his or her "medical history relating to any physical condition, medical test or procedure which relates to his ability to box, and a record of all medical suspensions[]" along with their application for a license.

The above laws, widely regarded as among the most stringent in the country, leave little room for disguising evidence of, or omitting information about, a boxer's medical conditions and history. They also leave no room for the removal of any medical findings from a boxer's permanent record. Although a boxer denied a license on medical grounds always has an opportunity for a hearing before the Commission can take "any final action negatively affecting such person's individual privileges or property granted by a license duly issued by the commission[,]" therefore, a brain injury such as Valero's will forever be in the medical record of such a boxer requesting the hearing and effectively render the hearing over before it started given the grave concerns that such an injury would inevitably raise.

Notwithstanding the above, the Commission alone has and "is vested with the sole direction, management, control and jurisdiction...over all licenses to any and all persons who participate in...boxing, sparring or wrestling matches or exhibitions" in the State of New York.. The inference then is that no matter what is in a boxer's medical file, it is ultimately within the Commission's discretion whether or not a boxer should be granted a license despite a given condition. In that case, in addition to evaluating the condition itself, the analysis of a given boxer then becomes a balancing test between such issues as whether a given decision would subject the Commission to liability in the event of an injury to a boxer, whether it comports with public policy to license a given boxer, what kind of precedent the licensure of one boxer could set for the licensure of another boxer, and where the Commission could draw the line in licensing certain boxers with questionable medical conditions over others. Each of these items will be looked at individually below as they would apply to Valero's situation.

The Commission's Potential Liability if Valero Were Licensed and Then Injured

As recently reinforced in Joey Gamache's lawsuit against the Commission regarding the brain damage that he suffered in his February 26, 2000 knockout loss to Arturo Gatti at Madison Square Garden, the statutory and regulatory scheme that governs professional boxing in New York "does indeed create...a duty of care which runs from the Athletic Commission directly to the licensed boxers under its jurisdiction and control." In other words, in the event that Valero were licensed to box by the Commission despite the Commission's knowledge of his 2001 brain injury, and sustained another brain injury during a boxing match in New York, the Commission could very likely be found liable in a subsequent lawsuit. The Commission would, therefore, be licensing Valero at its peril. In reality, a majority of athletic commissions and federations that grant Valero a license are likely operating under the same peril since New York's discovery in 2004.

Is it Against Public Policy in New York State to License a Boxer with a Known Brain Injury?

To find the answer to this question, one needs to look no further than the case of undefeated New York-based heavyweight contender "Baby" Joe Mesi. Mesi, a former 1996 U.S. Olympic alternate who was once so popular in his home city of Buffalo, New York that he was often referred to as Buffalo's "third franchise," has not been permitted to box in New York State since suffering a brain bleed in his March 13, 2003 decision win in Las Vegas over former cruiserweight champion Vassiliy Jirov. In other words, although Mesi was subsequently licensed to box in Puerto Rico, Quebec, Arkansas, Michigan, West Virginia, and Rhode Island, one of the biggest ticket sellers in recent New York history has been not allowed to fight before his hometown fans since 2003. The moral of the Mesi story is clear: the Commission will not permit boxers that have sustained brain injuries to fight again under its jurisdiction. It would, therefore, appear that allowing boxers with known brain injuries is plainly against public policy in New York State.

What Kind of Precedent Would it Set for New York State to License Valero?

In the event that the Commission were to grant a license to Valero, it would not only open itself up to heavy criticism and the re-examination of its suspensions of Mesi, Evander Holyfield, Junior Jones, and others who are no longer permitted to box in New York State, but it would also hazard leaving itself open to future legal challenges of license denials from other boxers with brain and other injuries. Such legal action could lead the New York State courts to conclude that certain denials were improper given that the Commission had issued Valero a license despite knowledge of his brain injury. In short, granting Valero a license to box in New York State could send the Commission down a very slippery slope in the licensing of boxers under its jurisdiction and into a wave of prospective legal challenges to the future denial of boxing licenses.

Despite the above prognostication of doom in the event that the Commission ever decided to license Valero, it should be noted that the Commission must simply furnish a rational basis for its decision to not issue a boxer a license. When coupled with the fact that the Commission alone has and "is vested with the sole direction, management, control and jurisdiction...over all licenses to any and all persons who participate in...boxing, sparring or wrestling matches or exhibitions" in the State of New York[,]" it would therefore likely survive most any legal challenge to its denial of a license, even if Valero were issued a license. The first court to rule on such a case, however, would have to be very careful to tailor its decision as to distinguish the case before it from Valero's situation to make sure it does not create a culture of inconsistency in the licensing of boxers in New York State.

Is the Commission Capable of Drawing a Line Between One Brain Injury and Another?

In the event that the Commission were to one day license Valero, there would be serious questions as to where, if anywhere, it would be able to draw the line going forward. Would it make a difference if a brain injury happened earlier in one's life or boxing career, as it did with Valero, who turned pro the year after his motorcycle accident? Would it be possible, for example, for amateur boxer Angelo Piccirillo, who sustained a brain injury during the 2009 New York State Golden Gloves competition, to apply for a license to fight professionally a few years from now, if he sufficiently recovers, under the idea that he had time to heal and his body would be more mature by then? Could non-boxing related head injuries be regarded as less relevant or probative than those actually sustained in the ring? Would the Commission entertain a petition for a license from a star athlete from another sport, such as retired New York Jets wide receiver Wayne Chrebet, despite his long history of concussions?

If the above scenarios seem difficult to differentiate between, that is because they are all simply permutations of the same problem: How to handle an applicant for a boxing license that has a history of brain injuries when boxing presents a real risk for either an aggravation of said injuries or the creation of additional injuries. Perhaps then, the Commission would be best served to stay consistent and keep Valero out of New York State. This is because while New York law could keep an exception such as Valero from swallowing the rule regarding applicants with head injuries, the Commission would be unable to maintain the high degree of credibility and integrity that it has today versus other athletic commissions in the United States if it did make such an exception.

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP. 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. ©

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This page contains a single entry from the blog posted on April 15, 2009 3:49 PM.

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