The Fight for Federal Intervention: Why Professional Needs Uniform Regulation

By

Raul Muniz

A Thesis Submitted to the Faculty of The Wilkes Honors College in Partial Fulfillment of the

Requirements for the Degree of Bachelor of Arts in Liberal Arts and Sciences with a

Concentration in Political Science

Wilkes Honors College of Florida Atlantic University of

Jupiter, Florida

August 2018

The Fight for Federal Intervention: Why Needs Uniform Regulation

By

Raul Muniz

This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Mark Tunick, and has been approved by the members of his supervisory committee. It was submitted to the faculty of The Honors College and was accepted in partial fulfillment of the requirements for the

degree of Bachelor of Arts in Liberal Arts and Sciences.

SUPERVISORY COMMITTEE:

______

Dr. Mark Tunick

______

Dr. Timothy Steigenga

Dr. Ellen Goldey, Dean, Honors College

______

Date

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To all of the fighters who put their lives on the line for the sport we love.

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ABSTRACT

Author: Raul Muniz

Title: The Fight for Federal Intervention: Why Professional Boxing Needs Uniform Regulation

Institution: Harriet L. Wilkes Honors College of Florida Atlantic University

Thesis Advisor: Dr. Mark Tunick

Degree: Bachelor of Arts in Liberal Arts and Sciences

Concentration: Political Science

Year: 2018

While professional boxing is subject to some federal regulation, there is still a call for greater uniformity throughout the states. For example, the variation of state procedures for performance-enhancing drug and post-fight neurological testing present a serious threat to an athlete’s health that can lead to physical impairments or even death. I argue professional boxing regulation should be completely uniform, left to the federal government rather than individual states. I review the regulatory system in professional boxing and show how the lack of uniformity leads to undesirable health, safety, and business practices. Founded on a critical analysis of federalism, the argument is based on a general consideration of when public policy in the United States should be uniform and when it should be left for states to decide.

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TABLE OF CONTENTS

CHAPTER ONE: Introduction……………………………………………………………….....1

CHAPTER TWO: Current Rules and Regulations in Professional Boxing…………………….9

CHAPTER THREE: The Role of Federalism in the United States…………………………….23

CHAPTER FOUR: Proposed Solution………………………………………………………….38

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Chapter One: Introduction

A chaplain escorted Daniel Franco’s family into the chapel room while their son laid unconscious in a nearby hospital bed. He explained how Daniel had a small chance of surviving let alone fully recovering from the brain injury. Daniel’s life revolved around boxing. He dedicated himself to his craft with the grand ambition of becoming a world champion. His fate now remained unknown while the doctors worked to relieve the pressure on his swelling brain.1

Daniel, a promising professional boxer, was on his way to a successful boxing career. A notable boxing promoter signed him to a contract deal, and he attained an undefeated record.2 On

March 23, 2017, Daniel suffered his first loss via in Los Angeles, California against

Christopher Martin.3 The state of California requires boxers to undergo an MRI and CT scan when first applying for their boxing license as a baseline assessment.4 Despite the California

State Athletic Commission retaining “the right to request another MRI if it believes that the applicant's health and safety could be jeopardized,” the state of California does not require any additional testing if a fighter suffers a knockout or engages in a grueling competition. 5 Daniel believes the brain injury started after his first loss against Martin in California. While California suspended Daniel for a mandatory 60-days following the bout, he was back in the gym three to

1 Rafael, Dan, " Daniel Franco: 'I'm Lucky to Be Talking to You Right Now'." ESPN Internet Ventures. November 17, 2017. http://www.espn.com/boxing/story/_/id/21445874/featherweight- daniel-franco-lucky-talking-right-now. 2 Pugmire, Lance, "He was an unbeaten boxer bankrolled by Jay-Z. After an injury sent him into a coma, his new mission is helping fighters." Los Angeles Times. December 02, 2017. http://www.latimes.com/sports/boxing/la-sp-daniel-franco-20171202-story.html 3 Rafael, “Featherweight Daniel Franco: 'I'm Lucky to Be Talking to You Right Now'." 4 California State Athletic Commission. "Frequently Asked Questions." California State Athletic Commission - Frequently Asked Questions About the California State Athletic Commission. September 11, 2014. http://www.dca.ca.gov/csac/forms_pubs/publications/faqs.shtml. 5 Ibid.

1 four weeks later and preparing for a match in at the request of his promoter.6 He was able to obtain another match since Mexico would not enforce the 60-day suspension authorized by the California Boxing Commission. Daniel easily defeated his opponent and landed a fight on a CBS Sports Network-televised main event.7

On June 10, 2017, Daniel faced off against Jose Haro in the state of Iowa. After intense action in the fight, he suffered a loss via an eighth-round knockout. He suffered a seizure moments after the fight; the paramedics rushed him to the hospital for further examination.

Daniel underwent surgery to treat a brain bleed, but a coma left him unresponsive. The doctors eventually had to remove a portion of his skull for the brain to heal and reduce its swelling.8

Daniel survived the aftermath of the nearly fatal event. He is now able to tell his story.

In addition to the physical hardship, Daniel and his family need to confront the financial burden acquired from the medical bills amounting to $200,000.9 The promoter’s insurance, mandated by the state of Iowa, only covered $10,000 of the total cost.10 Rightfully so, Daniel would like to see federal and uniform regulation established in professional boxing to prevent life-changing injuries and deaths from occurring in the sport. He also wishes to start a foundation to help financially support professional boxers who have suffered life-altering injuries.11

6 Pugmire, "He was an unbeaten boxer bankrolled by Jay-Z. After an injury sent him into a coma, his new mission is helping fighters." 7 Ibid. 8 Rafael, "Featherweight Daniel Franco: 'I'm Lucky to Be Talking to You Right Now'." 9 Pugmire, “He was an unbeaten boxer bankrolled by Jay-Z. After an injury sent him into a coma, his new mission is helping fighters." 10 "Iowa Athletic Commission Promoter's Responsibilities Manual." Iowa Athletic Commission. https://www.iowadivisionoflabor.gov/sites/authoring.iowadivisionoflabor.gov/files/Ath.prom_.man__0.p df. 11 Pugmire, "He was an unbeaten boxer bankrolled by Jay-Z. After an injury sent him into a coma, his new mission is helping fighters."

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A computed tomography (CT) scan after his first knockout loss could have detected any onset of a possible injury, which could have prevented a life-altering incident. Daniel Franco was not required to undergo any form of a post-fight examination. In the National Football League, teams are required to follow a Concussion Protocol; it requires injured players to undergo immediate examination for a concussion assessment, and all players who undergo concussion evaluations are required to have a follow-up examination the following day.12

It is not my objective to place blame on any individual boxing commission. Neither do I aim to place fault on the person who chooses boxing as a profession when the potential risks in the sport are obvious. I do not want to blame an individual promoter for pressuring fighters to frequently fight even when it is against the best health interest of their fighter. Although blame may be due from time to time, my objective is to evaluate whether or not current regulations in professional boxing, when mostly left up to individual states, are successful in protecting the financial and health interests of professional boxers. One fact is clear. We cannot fully control what will happen when two trained athletes face off and trade punches to the head. However, I believe the federal government, in particular, can effectively regulate the sport and ensure the best outcome for professional boxers.

The stories of boxers becoming injured or taken advantage of financially are numerous. I argue uniform boxing regulation is the most effective means to substantially promote fair business practices within the sport. Most importantly, uniform regulation will protect the health and safety interests of professional boxers. Professional boxers put their lives on the line every time they step into the to compete. I argue that just like any profession, boxing should have safety standards to ensure the well-being of participants. Based on research and the

12 France-Presse, Agence, "N.F.L. Changes Concussion Protocol." The Times. https://www.nytimes.com/2017/12/24/sports/football/nfl-concussion-protocol.html. December 24, 2017.

3 analysis of professional boxing and federalism, the best solution is the creation of a federal boxing commission.

This work is not meant to debate the legitimacy of a professional boxing career. Once again, any boxing spectator, a lifelong fan, or casual viewer realizes professional boxing can be a dangerous sport for the participant. Boxing is not going to fade away; it is a multi-million dollar business bringing a considerable amount of revenue to the United States. 13 Furthermore, boxing provides a way out of poverty for thousands of young men and women. Boxing is historically a sport that is prevalent in lower socioeconomic communities.14 A lot of men and women have no other choice but to fight for a living. Although it might be worthwhile to consider why one must professionally fight to secure a decent living in the United States or if professional boxing should be legal, I do not seek to answer such inquiries. I aim to evaluate the current regulatory system in professional boxing while proposing several solutions to improve it.15 Before I begin the discussion on regulation in professional boxing, it is imperative to review some key terms I will commonly refer to throughout the work.

13 Baglio, Scott, The Boxing Reform Act: The First Jab at Establishing Credibility in Professional Boxing. Fordham Law Review, Volume 68 | Issue 6, Article 7. 2000., 2260 14 See Gawlik, Stephen, "Professor Who Packs a Real : Carlo Rotella Explores the Relationship between Urban History and the Art of Boxing." Boston College Chronicle. March 15, 2001. “He [Rotella] compares the sport’s urban past and present state with that of the industrialized American city, an all but bygone phenomena. ‘As cities have lost most of their factory workers, boxing lost its traditional base,’ noted Rotella. Rotella explained that in industrial cities young men faced the choice between fighting and factory work. Many chose boxing not only because they dreamed of championships, but also because it called upon some of the same physical skills as industrial work.” 15 Houston, Graham, "Death in the ring has long been a part of boxing." ESPN. November 13, 2007. http://www.espn.com/sports/boxing/news/story?id=3105556. “There is risk involved in boxing, as in all sports in which physical contact is involved -- and don't even talk about the casualties in horseback riding and motorsports…. To remove all risk would be to turn boxing into something quite different than the sport as we know it -- and I do not think anyone would want that, least of all the boxers themselves.”

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The Professional Boxer

Some of the biggest names in the history of American sports come from professional boxing: Joe Louis, Muhammad Ali, , and George Foreman to name a few. A professional boxer participates in a competition that involves striking from the fists. The participant is required to register in the state the boxer resides to become a professional boxer.16

For example, in the state of Florida, boxers are subject to the following licensure requirements: submit an application for licensure along with an application fee of $25.00, be 18 years or older, not have been convicted of a crime of moral turpitude within the past 10 years, and complete a pro debut form and provide proof of at least five amateur fights. There are also medical requirements; in Florida they are the following: participant must pass a pre-match physical, negative hepatitis B surface antigen test performed within the last year, negative hepatitis C antibody test performed within the last year, negative HIV test performed within the last year, and a dilated eye examination performed within the last year.17 Licensure and medical requirements vary from state to state.

State Boxing Commissions

We must have a basic understanding of the sport's regulatory structure to analyze further whether a federal boxing commission is needed or if states should handle regulation. Boxing differs from other mainstream sports in the United States in a variety of ways; unlike the

National Basketball League or National Football League, boxing does not have a centralized, national organization to oversee or regulate the sport on a national level.18

16 H.R.4167, 104th Cong., U.S. G.P.O. (1995) (PBSA) 17 "Florida State Boxing Commission Frequently Asked Questions and Answers." My Florida License, 2. http://www.myfloridalicense.com/dbpr/pro/sbc/documents/box_faq.pdf. 18 U.S. Congress. Senate. COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE. A REVIEW OF THE PROFESSIONAL BOXING INDUSTRY—IS FURTHER

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With boxing increasing in popularity in the early 1900’s, New York took the first step in passing the “Walker Law,” which formed a precedent of state governments taking an active role in regulating the sport.19 The Walker Law “created a state boxing commission, instituted certain medical safeguards, and limited fights to fifteen rounds.”20

A boxing commission is “an entity authorized under State law to regulate professional boxing matches.”21 These responsibilities include tracking medical records and selecting referees and judges in non-championship fights.22 Boxing commissions are also responsible for enforcing the state’s rules and regulations to ensure all athletes are abiding by the rules of the designated state. If a state does not have a boxing commission, a commission in a nearby state must supervise the boxing event.23

The Manager

While the boxer's primary goal is to train and prepare for upcoming matches, a manager is usually hired by the boxer to handle the boxer's business affairs. He or she "receives compensation for the service as an agent or representative of a boxer.”24 The manager is the one to negotiate compensation with boxing promoters and typically receives 10%-33% of the

REFORM NEEDED? 107th Cong., 1st sess. S. Rept. S. HRG. 107–1090. May 23, 2004, 1. https://www.gpo.gov/fdsys/pkg/CHRG-107shrg89033/pdf/CHRG-107shrg89033.pdf. 19 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. Jefferson, NC: McFarland, 2009. Kindle. See Chapter 1, ‘A History of Boxing Regulations,’ section ‘Walker Law (1920),’ location 466. 20 Brooks, Nathan, Federal Regulation of Boxing: Current Law and Proposed Legislation. CRS Report for Congress. July 20, 2005. http://congressionalresearch.com/RL32280/document.php?study=Federal Regulation of Boxing Current Law and Proposed Legislation," 7. Professional boxing is now limited to 12 rounds a fight. 21 H.R.4167, 104th Cong. 22 Brooks, Federal Regulation of Boxing: Current Law and Proposed Legislation, 2. 23 H.R.4167, 104th Cong. 24 Ibid.

6 fighter’s purse.25 The manager has an interest in negotiating the highest amount of money for the boxer, as it will result in higher wages for the manager as well.

The Promoter

There is no boxing event without the promoter. He or she is equivalent to the owner of a professional sports team. A promoter is the “person primarily responsible for organizing, promoting, and producing a professional boxing match.”26 While the manager may have the best interest of a boxer in mind, it should be emphasized the promoter's interest is entirely distinct.

The promoter assumes the financial risk. They attempt to earn a profit “between the total revenues generated from the fight and the total expenses incurred in promoting it.”27 I will further address the relationship between the manager and promoter in professional boxing when discussing the Muhammad Ali Act, a federal law that creates a firewall between the manager and promoter.

The Need for Uniform Regulation

Establishing uniform regulation will help not only boxers, but also the spectators, managers, and promoters. In the end, it will further substantiate professional boxing as a credible sport instead of a sport filled with corruption. It will lead to more athlete participation and an increased number of spectators becoming lifelong fans. Professional boxers are incredible athletes that endure physical and mental battles to compete, entertain, and provide a living for their families. I hope this work can contribute to the betterment of the sport.

The second chapter will explain current federal and state regulation. The third chapter discusses the role of federalism, states’ rights, and the need for a robust national authority; this

25 Baglio, The Muhammad Ali Boxing Reform Act: The First Jab at Establishing Credibility in Professional Boxing, 2260-2261. 26 H.R.4167, 104th Cong. 27 Brooks, Federal Regulation of Boxing: Current Law and Proposed Legislation, 2.

7 chapter will be based on a general consideration of when public policy in the United States should be uniform and when it should be left for the States to decide. The fourth chapter compares and contrasts different solutions to initiate uniform regulation in professional boxing. I will explore the possibility of a federal boxing commission and the privatization of professional boxing.

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Chapter Two: Current Rules and Regulations in Professional Boxing

Now that I have defined key terms, I will lay out the current federal law in professional boxing. Thereafter, I will determine if current federal laws and regulations are effective in addressing critical health, safety, and business protections for professional boxers. Some of the critical health issues facing boxers are performance-enhancing drug use, brain damage, and the contraction of blood-borne illnesses including HIV. 28 The variation of requirements to become a professional boxer should also be a concern. The issues mentioned have a direct correlation to the well-being and health of the boxer. I find that there are still many gaps, despite federal laws being enacted in good faith, which should prompt the federal government to question the effectiveness of current boxing regulations.

Professional Boxing Safety Act of 1996

The Professional Boxing Safety Act of 1996 (PBSA), the first piece of federal legislation concerning professional boxing, was introduced by Representative Pat Williams of Montana.

Congress discovered there were disparities amongst the states regarding necessary safety regulations in the sport. The PBSA’s goal is to “improve and expand the system of safety precautions that protect the welfare of professional boxers” and “assist State boxing commissions to provide proper oversight for the professional boxing industry in the United States.”29 The bill primarily focuses on health and safety regulations in the sport and I will focus on these.

28 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 2, ‘Data Analysis,’ section ‘Significant Differences,’ location 905. 29 H.R.4167, 104th Cong. See §6302. Purposes,

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Health and Safety Standards

The PBSA has four requirements for promoters and professional boxers participating in a boxing event: a physical examination must take place to determine if the athlete is fit to compete, an ambulance or medical personnel must be present during the entire duration of the event, a physician must be present ringside, and each boxer must have health insurance to provide

“medical coverage for any injuries sustained in a match.”30 The PBSA also requires state boxing commissions to adhere to a “fit to compete” standard. For example, commissions must “evaluate the professional records and physician's certification of each boxer participating in a professional boxing match in the State, and to deny authorization for a boxer to fight where appropriate.”31

Although the federal government requires states to follow these regulations, the federal government does not dictate the stringency of these requirements. By allowing states to define what is considered the appropriate amount of regulation, it creates a system where states can profoundly differ in the strictness of regulation. This lack of stringency is a concern for the "fit to compete" standard for professional boxers and the amount of promoter’s health insurance required during a boxing event.

The federal government allows states to define “physically fit” standard to compete in a professional boxing match. State boxing commissions primarily use medical testing and an evaluation of current professional boxing records to determine if an athlete meets the requirements. Medical testing will usually include pre-fight medical requirements such as a

30 H.R.4167, 104th Cong. See 15 USC 6304. SEC. 5, Safety Standards. 31 Ibid., 15 USC 6306.

10 physical exam, computed tomography scan, neurological exam, and a blood test to discover any blood-borne diseases.32

State commissions are also responsible for evaluating matchups to determine if they are fair and competitive to prevent matches that “could be harmful to one of the contestants due to being outclassed.”33 However, each state has their own standard of evaluating professional records.34 The Wisconsin State Boxing Commission may prevent a boxing match if there is a

“direct or documented information for a boxer’s lack of skill.”35 Brian Viloria, the undefeated

North American Boxing Federation champion, faced off against Ruben Contreras on May 28,

2005; Contreras had a less than impressive record of 9-17-3, and the mismatch led to him suffering a seizure after the sixth round stoppage. Contreras was fortunate to survive but became permanently disabled as a result.36 It does not take a boxing expert to understand that the

California State Commission should not have allowed Contreras to compete against a clearly superior fighter. A uniform method of evaluating matches and athletes would reduce the possibility of fighters becoming injured permanently.

32 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states, Jefferson, NC: McFarland, 2009. See Chapter 2. Section ‘Pre-fight Medical Requirements,’ location 802-803. 33 Ibid. Section ‘Standards for Competitive Match-ups,’ location 837. “California is the only state that appears to have a systematic method of determining competitive matchups…. Every fight is approved or not approved based on a rating of the proposed fighters. We rate fighters A through E. Fighters cannot be more than two rating classifications apart.” 34 "Medical Requirements by Commission." Association of Boxing Commissions. March 6, 2017. http://www.abcboxing.com/medical-requirements-by-commission/. 35 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 2, section ‘Standards for Competitive Match- ups,’ location 841. 36 Ibid., location 852.

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Health insurance requirements during a boxing event is another area where stringency of regulations varies.37 For example, Idaho has a $2,500 health insurance requirement.38 Other states such as New York require a much more significant policy of $1 million of coverage.39 The lack of minimum standards puts boxers competing in states with lower amounts of coverage at risk in case of an emergency. The dangers of professional boxing are evident. Fair and uniform amounts of health insurance coverage should be formed.40

Despite some flaws in the law, the PBSA was a step in the right direction. Congress understood the need to get involved to ensure state commissions were following specific regulations to protect the welfare of all boxers. The Act covered health and safety regulations, but it ultimately left shady business practices in professional boxing untouched.

Muhammad Ali Boxing Reform Act

The Muhammad Ali Boxing Reform Act sought to create stronger financial protections against business practices involving professional boxers. After finding that promoters were taking advantage of the lack of federal oversight in the sport, Congress enacted the Muhammad

Ali Boxing Reform Act “to protect the rights and welfare of professional boxers on an interstate basis by preventing certain exploitive, oppressive, and unethical business practices; to assist

State boxing commissions in their efforts to provide more effective public oversight of the sport; and to promote honorable competition in professional boxing and enhance the overall integrity of

37 Ibid., See section ‘Health Insurance,’ location 869. “Federal law does not require a minimum (amount).” 38 Ibid., location 875-882. 39 "New Health Insurance Policy Finally Available for Boxing in NY." The Ring. December 14, 2016. https://www.ringtv.com/477355-new-health-insurance-policy-finally-approved-boxing-ny/. 40 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 2, section ‘Health Insurance,’ location 877. “Every boxer that enters the ring can be certain to receive blows to the head. While the vast majority of boxing matches end without serious injury the potential is omnipresent, and a more reasonable amount of coverage should be required by law.”

12 the industry.”41 It built on the PBSA’s foundation, making amendments to create fair business practices. However, the Act does not create additional regulations for health and medical standards, leaving many questions about the effectiveness of health regulations for individual states.42 I will focus on two main critical points of the Act: the firewall between manager and promoter, and enforcement of the Act.

I will first examine the firewall between manager and promoter created by the act. As mentioned in the introduction, the promoter and manager have two distinct roles and duties, and there is a conflict of interest when the roles blur. The manager is required to act in the best interest of the boxer by negotiating with a promoter to increase the boxer’s wages. The promoter’s main interest is to minimize the boxer’s wages to increase revenue from the boxing event. It is unethical for a boxer to be represented by both the manager and promoter since the two parties have conflicting interests. Therefore, the Muhammad Ali Boxing Reform Act makes it illegal for “a promoter to have a direct or indirect financial interest in the management of a boxer; or ‘‘a manager— ‘‘(i) to have a direct or indirect financial interest in the promotion of a boxer; or ‘‘(ii) to be employed by or receive compensation or other benefits from a promoter, except for amounts received as consideration under the manager’s contract with the boxer.”43

There are two issues with the firewall clause; it only protects a small number of professional boxers, and there are loopholes to navigate through the firewall.

41H. R. 1832, 106th Cong., U.S. G.P.O. (1999) (enacted). (Muhammad Ali Boxing Reform Act). See Sec 3, Purposes. 42 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 1, section ‘Muhammad Ali Boxing Reform Act (2000),’location 683. 43 H. R. 1832, 106th Cong.

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First, the Act only applies to championship fighters who fight ten or more rounds, leaving thousands of up-and-coming boxers in the shadows.44 The Act fails to protect boxers at the beginning of their careers. Arguably one of the most significant periods of a boxer’s career, boxers competing in 4, 6, or 8 round fights have no form of legal protection under the Act.

Second, managers and promoters may use loopholes to avoid legal action against the conflict of interest cited in the Muhammad Ali Boxing Reform Act. For example, a boxing manager can hire a television production company and purchase insurance to put on the event. The manager can then hire an onsite coordinator to “promote” the fighters to avoid being listed as the promoter. The manager is essentially performing the same function as a promoter through an alias, i.e., assuming the financial risk of the event, producing, and organizing the event. This loophole is just one example of how a manager can game the system to evade the conflict of interest clause.

Next, the Muhammad Ali Boxing Reform Act grants state law enforcement officials the authority to bring civil action against any person violating any requirements of the act on the

“behalf of its residents in an appropriate district court of the United States.”45 A state official can bring upon action for the following reasons: ‘(1) to enjoin the holding of any professional boxing match which the practice involves; to enforce compliance with this Act; to obtain the fines provided under subsection (b) or appropriate restitution; or to obtain such other relief as the court may deem appropriate.” In addition to law enforcement bringing action, there is a private right to action where “any boxer who suffers economic injury as a result of a violation of any provision of this

Act may bring an action in the appropriate Federal or State court and recover the damages.”46

However, the lackluster enforcement methods cause some to question the effectiveness of the

44 Ibid., Section 5, Subsection 2(a). 45 Ibid., Section 6. 46 Ibid., Subsection c.

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Act. A private right to action is not a realistic solution for most professional boxers. Civil suits can be extremely costly in time and attorney fees for both the state and professional boxer. On

November 2, 2013, Magomed Abudusalov suffered brain damage in a fight against .

The state of New York was required to pay twenty-two million dollars to Abudusalov following almost four years of litigation in New York State Court of Claims.47 Although it is possible boxers could win in court, the process is inefficient; it requires a lot of time that could be spent training for future matches.

A more effective solution would be an arbitration process similar to the National Football

League and Major League Baseball. Both leagues use uniform contracts that include an arbitration process. Uniform contracts in professional boxing would guarantee legal disputes default to an arbitration process prior to any litigation; this would benefit the boxers by avoiding expensive litigation costs. For example, the Nevada State Boxing Commission offers a template contract that must be approved by commission officials and signed by a professional boxer and licensed manager in the state.48 Once approved, the commission reviews the contract. If there is a legal or business dispute regarding the contract in the future, the commission will utilize the arbitration process as explained in the contract. Uniform contracts could institute maximum years, percentage amounts, management agreements, and promotional agreements.49

47 Hauser, Thomas. "$22 Million for - Boxing News." The Sweet Science. September 8, 2017.http://www.thesweetscience.com/feature-articles/44468-22-million-magomed- abdusalamov. 48 "Important Notes Regarding Boxer/Manager Contracts." Nevada Athletic Commission. http://boxing.nv.gov/uploadedFiles/boxingnvgov/content/HotTopics/contractweb.pdf, 1. 49 U.S. Congress. Senate. COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE. A REVIEW OF THE PROFESSIONAL BOXING INDUSTRY—IS FURTHER REFORM NEEDED?

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Are the Muhammad Ali Boxing Reform Act and Professional Boxing Safety Act Effective in

Protecting Boxers?

Both Acts are great starts. They initiate certain requirements without the federal government intruding too much into the sovereignty of individual states. Nonetheless, neither act addresses the most pressing aspects of regulation. These include critical regulations including performance-enhancing drug testing, neurological testing, and HIV testing. The Acts also fail in addressing the requirements to become a professional boxer.

Performance-Enhancing Drugs Testing

Performance- enhancing drug (PEDS) use in championship bouts is strictly prohibited and enforced by championship organizations on the global level.50 However, the majority of non- championship bouts do not have stringent drug testing requirements. Professional boxing should have strict drug testing for all athletes that compete. The use of performance-enhancing drugs poses an incredible threat to the livelihood of professional boxers; the objective of boxing is to inflict physical harm on your opponent. The use of performance-enhancing drugs in boxing can increase and inflict further damage by letting a boxer using the drugs out- perform an opponent. Each state has the discretion to determine what drugs to test for and how often, creating large disparities in testing. For example, there are states such as Kentucky and

Kansas that offer performance-enhancing drug testing at the discretion of the Commission.51 On the other hand, New York, a state known for stricter requirements than others, requires a urine sample from every athlete that competes in the state.52 Nevada, another state with a lot of boxing

50 Ibid., See Chapter 2, section ‘Drug Testing, location 937. 51 "Medical Requirements by Commission." Association of Boxing Commissions.” 52 Ibid, Section 5. “The use of illicit substances and Performance Enhancing Drugs (PEDs) presents a grave and growing threat to the integrity of athletic competition within the combat sports industry. The Commission is in the process of formulating a comprehensive drug testing policy for combat athletes who fight under the jurisdiction of the NYSAC. Currently, all combatants fighting in the State undergo

16 activity, requires mandatory steroid and drug testing on the day of the fight and requires athletes to undergo testing throughout the year at the discretion of the boxing commission.53 Two states with some of the most boxing events have tried to incorporate drug testing for all combat athletes that compete. Noted in Nevada’s Memorandum about Additional Steroid and Drug Testing, implementing testing when ordered by the commission is due to boxers’ sophisticated timing in taking illegal substances to prevent detection by fight-night.54 A comprehensive and uniform drug screening process would ensure the commission closely monitors athletes throughout the year. There will be immediate testing if there is any detection of substance abuse. For example,

Nevada will request additional drug tests determined by specific criteria: “a random selection; some indication that a particular fighter may be using a prohibited substance; the fact that a fighter has previously tested positive for using a prohibited substance; a request by a commissioner; or any other cause determined by the Commission.”55 Every fighter should be able to step into the boxing ring without the fear of an opponent possessing an unfair and dangerous advantage.

mandatory urine testing for examination of prohibited substances”….https://www.dos.ny.gov/athletic/pdfs/medicalmanual.pdf 53 “Additional Steroid and Drug Testing." John R. Bailey to ALL NEVADA LICENSEES. May 24, 2008. Nevada, 1. http://boxing.nv.gov/uploadedFiles/boxingnvgov/content/HotTopics/NACMemoReDrugTesting.pdf. "Therefore, in addition to the steroid and drug tests performed on contestants on fight night, the Commission will require fighters licensed by the Commission, and applicants for such licensure, to submit these tests when ordered by the Commission at other times during the year.” 54 Ibid. 55 Ibid.

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Neurological Testing

Daniel Franco’s story mentioned in the introduction shows the importance of neurological testing. The PBSA requires physical examinations to be mandatory for the boxer to compete. However, the law does not specify what type of testing is necessary. Neurological testing is not mandatory by federal law.56 Some states such as California require annual neurological exams.57 Others, including Hawaii, only require neurological testing if the fighter is over 38 or when recommended by a physician.58 For the states that do require annual neurological testing,59 there is no mention of additional testing in case of an injury or knockout.

The state of Kansas has implemented common sense criteria to determine when boxers should undergo neurological testing before a fight. In Kansas, the Commission can order a

CAT scan, MRI, or MRI/MRA of the brain if a contestant:

1. Has lost three bouts in a row by KO or TKO.

1. Has lost five bouts in a row.

2. Has an extensive losing record.

3. Has a career of more than 350 rounds.

56 Association of Boxing Commissions. See "Medical Requirements by Commission.” States that do not require neurological testing: Arizona, Arkansas, Colorado, Florida, Illinois, Indiana, Mississippi, Missouri, Nebraska, New Hampshire, Oklahoma, South Carolina, Texas. 57 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 2, section ‘Neurological Testing and HIV Testing,’ location 915. 58 Ibid. 59 See "Medical Requirements by Commission." Association of Boxing Commissions. Neurological testing is only required for fighters over a certain age and some additional criteria depending on the state: Wisconsin (35), Pennsylvania (35) Ohio (fighters over age of 38 and fighters who have had multiple losses; the neurological exam is valid for 5 years), Tennessee (35 and “fighters who have not fought in the last 16 months or have had 5 or more losses must submit… a neurological exam”), Washington (37 and fighters who lose six fights in a row must provide an EEG and EKG) Kentucky (40) North Carolina (40), Georgia (38), Alabama (37 and if a fighter has competed in more than 200 professional rounds) Delaware (“Fighters, who have not fought within the last 16 months or have had 5 or more knockout, must submit a Neurological exam administered by a licensed M.D. or D.O. or over the age of 38.”)

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4. Has suffered a concussion or difficulty where the physician has requested additional

testing.

5. Has been inactive for more than 30 months.

6. Is a Pro or Amateur debut.60

Although annual neurological tests could be added, it is not enough to require annual tests or tests at a physician's discretion. It can be challenging to detect any signs of brain injury; therefore, the National Football League has created the NFL Concussion Protocol to help detect and monitor any signs of head injury. Most importantly, the NFL Concussion Protocol requires

“any sign of impact seizure will be considered the same as loss of consciousness and the player will be taken out of the game and may not return” and “a player who is evaluated for a concussion must be re-evaluated within 24 hours, even if the player has an off day.”61 The

National Football League can also discipline club teams through club fines and forfeiture of draft picks if they do not follow the protocol.62

At the moment, states and the federal government do not require professional boxers to undergo additional testing at any time after a competition. The decision to visit a physician is at the discretion of the professional boxer, which obviously can pose serious problems. Boxers should not be required to visit the doctor solely at their discretion. First, as mentioned before, many of the signs of head injuries are undetectable and can only be detected by a doctor. Second, it is common for professional athletes to brush off the possibility of injury due to the fear they

60 Ibid. 61Mortensen, Chris." NFL Adds Neurotrauma Consultants as Part of Revised Concussion Protocol." ESPN. December 24, 2017. http://www.espn.com/nfl/story/_/id/21864620/nfl-making-significant- changes-concussion-protocol. 62 Maske, Mark. "Seattle Seahawks Fined $100,000 for Violating NFL Concussion Protocol with Russell Wilson." The Washington Post. December 21, 2017. https://www.washingtonpost.com/news/sports/wp/2017/12/21/seattle-seahawks-fined-100000-for- bypassing-concussion-test-on-russell-wilson/.

19 will be told not to fight. Professional boxing could easily adapt something similar to the NFL

Protocol. In the event an athlete is knocked out or receives an exorbitant amount of damage to the head during a match, he or she should be required to undergo an evaluation immediately after a match and 24 hours later. A centralized boxing commission could enforce such a rule; it could establish an additional evaluation requirement to the thirty and sixty-day suspension imposed when a fighter is knocked out. The goal of the additional evaluations would be to discover any detection of life-altering brain injuries that occur immediately after a boxing match.

Additional neurological testing is always a great solution, but questions about funding usually arise. The New York State Athletic Commission requires boxers to pay for the test. In

New Jersey, the promoter or boxer pays for the test.63 There are different ways to come up with additional funding for these tests. I will address this issue in the final chapter.

HIV Testing

The need for uniform HIV testing requirements became a big issue in November of 2017.

After testing positive for HIV in the state of Florida, a professional boxer decided to accept a fight in Arkansas, a state that does not require HIV testing.64 The lack of uniform HIV testing allowed the fighter to compete and place his opponent and those around the ring at risk. Despite the slim chance of a boxer contracting HIV during a boxing match, there is still a real risk of contracting the virus during a fight. Cases of boxers contracting HIV during a fight are difficult to verify because the virus cannot immediately be detected after infection. However, boxing

63 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 2, section ‘Neurological Testing and HIV Testing,’ location 915. “The New York State Athletic Commission requires boxers to pay $75 for an annual neurological exam, and during the pre-bout physical a neurological exam test is performed is performed at no cost.” 64 Hauser, Thomas. "The Hauser Report: Shame on the Arkansas State Athletic Commission." The Sweet Science. November 23, 2017. http://www.thesweetscience.com/feature-articles/46379-hauser- report-shame-arkansas-state.

20 commissions should take all the precautions necessary to decrease the chances of contraction. By having simple uniform HIV laws, the sport can make sure every athlete has to undergo HIV testing when fighting in a state.

Athlete Eligibility for Professional Boxers

Lastly, I will review the need for uniform requirements for a boxer’s eligibility to turn professional. Eligibility to turn professional varies significantly throughout the states; Michigan only requires that individuals be 18 years old.65 New Jersey has a commissioner review “boxers’ files, including “medicals, criminal history, child support, talent, and record.”66 Boxing is also unlike most professional sports in the United States in that it does not have a minor-league or a college system to help develop the skillset of boxers. Fair and common sense requirements will allow qualified and highly trained individuals to turn professional and weed out athletes that should not have any business competing in the sport. Mismatches, fights that place a superior fighter against a lesser skilled fighter, can be prevented by requiring a higher number of amateur bouts. Boxing commissions could also conduct a rigorous physical test to ensure athletes possess a particular skill set.

The Call for Federal Intervention

The PBSA established “a minimum level of health and safety requirements to protect the welfare of the athletes who sustain the sport” while the Muhammad Ali Act was to “protect boxers from sometimes exploitive, oppressive, and unethical business practices of promoters, managers, and sanctioning organizations.”67 In the words of prominent boxing writer Thomas

65 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 2, section ‘Boxing Licenses,’ location 882. 66 Ibid, location 888. 67 U.S. Cong. Senate. COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION. A REVIEW OF THE PROFESSIONAL BOXING INDUSTRY—IS FURTHER REFORM NEEDED? 1.

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Hauser, “But the answer is that if you can’t conduct boxing in an atmosphere where the fighters are reasonably protected medically, then you shouldn’t have boxing.”68 Common sense and uniform regulations need to be initiated to help the sport protect its most valuable asset, the athletes.

Although both laws are good-hearted, they give states too much leniency in establishing the stringency of the requirements. Promoters can host events in states with the least amount of regulation to seek a more significant profit. In the next chapter, I will argue a federal solution is needed because we cannot leave certain matters to the states; they have an incentive to “race to the bottom” or decrease business regulations to attract businesses and generate revenue.

68 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 2, Section ‘Interview with Thomas Hauser,’ location 1153.

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CHAPTER THREE: The Role of Federalism in the United States

To address the problem of whether boxing regulation should be uniform or left to the states to regulate, we should consider the role of federalism in the United States. This chapter discusses the role of federalism, states’ rights, and the need for a centralized authority; it will be based on a general consideration of when public policy in the United States should be uniform and when it should be left for the states to decide.

Federalism is an approach for dealing with conflict and promoting cooperation between federal and state governments.69 It calls for a relationship and the sharing of power to find the most efficient form of government to decide public policy.70 Federalism is the “compromise between two extreme forms of government: a fully centralized unitary government on the one hand and a fully decentralized system of many states on the other.”71 The extent of what that compromise should entail has been debated since the inception of the United States Constitution.

Federalism continues to play a crucial role in forming public policy today.

The Founding Fathers of the United States Constitution were divided into two groups:

Federalists and Anti-Federalists. The Federalists advocated for a strong centralized government where states could come together under one government- they argued for a sovereign nation, allowing the government to perform specific functions a lot more successfully, e.g., providing a strong national defense. The Federalists argued the Articles of Confederation, the original

Constitution ratified by the states, was weak; the states' inability to raise funds and gather troops

69 Wildavsky, Aaron. Federalism & Political Culture. New Brunswick, New Jersey: Transaction Publisher, 1998, 17. “In a word, federalism is about conflict. Federalism is about cooperation.” 70 Ibid, 66. “Federalism requires mutuality instead of hierarchy, multiple rather than single causation and a sharing instead of monopoly of power.” 71 Ronald McKinnon and Thomas Nechyba. The new federalism: can the states be trusted? Stanford (California): Hoover Institution Press, 1997, 5.

23 demonstrated there was not a sufficiently strong federal power.72 The lack of a centralized government ultimately led to the call to amend the Articles of Confederation.73 The authors of the Federalist papers argued that dividing power between the federal and state government was the best way to preserve liberty.74 As Paul Peterson, author of The Price of Federalism explains,

“A division of power between the two forms of government would reduce the possibility that any single majority will be able to control all centers of government power.” A strong national government would protect against external threats while state governments would reduce threats to liberty by denying power to any single dictator.

On the other hand, Anti-Federalists opposed a strong national government and thought states should have more authority to govern. While the Federalists argued for a strong central government, bank, and independent executive branch, Anti-Federalists wanted to leave more power to the states. They were concerned that a strong national government could create a national army to repress political opposition.75 The United States Constitution, ratified in 1788, founded a federal government with enumerated powers to supplement state governments; also, the Bill of Rights granted states protections against the federal government.76 The discussion of power distribution between federal and state government would transform into a modern form of federalism, one that continues to be a deciding factor in determining Congress’s power to enact legislation.77

72 Shapiro, David L. Federalism: a dialogue. Evanston, IL: Northwestern University Press, 1995, 15. 73 Ibid. 74 Peterson, Paul E. The Price of federalism. Washington (D.C.): Brookings Institution, 1995, 6. 75 Ibid, 7. 76 "Constitution of the United States of America (1787)." Bill of Rights Institute. https://www.billofrightsinstitute.org/founding-documents/constitution/. 77 Peterson, The Price of federalism, 10. Peterson refers to a new type of federalism, modern federalism, due to states and localities becoming engines of economic development.

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The Commerce Clause and the 10th Amendment

The legal discussion determining how much individual authority states and the federal government should hold requires the interpretation of the 10th amendment and the Commerce

Clause of the United States Constitution. The 10th amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.”78 Advocates for states' rights to govern local activities argue that states possess "residuary sovereignty that cannot be ‘invaded' or infringed by the national government."79 In Federalist Paper No. 39, James Madison explains how states have certain powers that cannot be taken away by the federal government.80 Madison proposed a tribunal to be the deciding factor if a dispute arises between the two forms of government, possibly referring to the Supreme Court.81

The Commerce Clause grants power to the United States Congress “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”82

Congress has the authority to regulate goods or economic activities that state lines.

Congress also has the power to regulate intrastate activity, economic activity occurring strictly within a state, which substantially affects interstate commerce.83 Speed limits exclusively on a state’s road are an example of an intrastate activity, while speed limits on national highways are

78 U.S. Constitution. Amend. 10 79 Carey, George W. "Conservatism, centralization, and constitutional federalism." Modern Age, Winter- Spring 2004, 48+. General OneFile. http://link.galegroup.com/apps/doc/A120037470/ITOF?u=d0_mlpbcls&sid=ITOF&xid=19496535. 80 Ibid., In Federalist no. 39, Madison states No. 39 "jurisdiction extends to certain enumerated objects only, and leaves to the several states, residuary and inviolable sovereignty over all other objects.” 81 Ibid., "At the same time, he insists this tribunal should be "established under the general, rather than insists this tribunal should be "established under the general, rather than local governments" to avoid "an appeal to the sword, and a dissolution of the compact. To the innocent eye, it is not at all clear from the textual context that by “tribunal” Madison means the Supreme Court, though later in his correspondence he maintains that this was, indeed, his meaning.” 82 U.S. Constitution. Article. 1. Section. 8. Cl. 3. 83 See United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995)

25 an interstate activity since highways cross state lines. After the New Deal and President Franklin

D. Roosevelt’s political pressure to pack the court, the Court expanded Congress’s powers to regulate under the Commerce Clause.84

Due to the Commerce Clause’s language, the Supreme Court and Congress must determine when to leave regulation to the states and when national uniformity is needed. They must determine if activities are local or fall under the purview of interstate commerce. The decision of what form of government to rule over different activities is one that can remarkably impact the trajectory of public policy in the United States. The decision will determine if

Congress or the states regulate important issues like banning guns in school zones or the criminalization of marijuana.85 Congress is justified in enacting legislation concerning issues that affect neighboring states; these issues lead to spillovers, which are “externalities that spill into areas beyond the authority of the government where the externality is produced.”86 Pollution is one example of a spillover effect. For instance, acid rain falling in one part of the country is a spillover caused by coal-burning machines in Midwestern states. The federalism argument is that we should not leave it to Midwestern states to regulate coal production since that activity negatively affects other states.87 Externalities that become spillovers require Congress’s intervention. The federal government has jurisdiction over where the “externality is produced and where the effects of the externality are felt.”88

84 Ylagan, Amelia H.C. "World Economic Federalism and Nation-state Federalism." Business World. January 15, 2018. http://bworldonline.com/world-economic-federalism-nation-state-federalism/. 85 See United States v. Alfonso D. Lopez, Jr. and Gonzales v. Raich, 545 U.S. 1 (2005) 86 Smith, Troy E. "Externalities/Spillovers." Center for the Study of Federalism. 2006. http://encyclopedia.federalism.org/index.php/Externalities/Spillovers. “Externalities are uncompensated third-party effects resulting from the production and/or consumption of goods and services. In other words, an externality results from the gap between the private cost or benefit of a good and the social cost or benefit of the good.” 87 Ibid. 88 Ibid.

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The relationship between the federal and state government is important to understand when dividing power. Although both forms of government have different powers and purposes, they are both "substantially dependent on the great body of citizens of the United States.”89

Madison explains how it is “erroneous” to view the two forms of governments as “mutual rivals and enemies.”90 To address what should happen if the federal government abuses its authority,

Hamilton suggests that “the people, whose creature it is, must appeal to the standard they have formed, and take measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify.” The power to decide to what extent the federal government will govern ultimately lies with the constituents. Madison asserts voters will elect “more faithful representatives” to determine the “extent of national/states powers.”91 The power of the federal government is ultimately checked by voters who have the right to elect members of Congress that share similar beliefs on how heavy the federal government’s hand should be.

The Fight for States to Govern

There are several deciding factors of when and how far the federal government should seek to regulate. States still have the authority to govern certain intrastate matters, as they should.

Local governments face “lower informational barriers,” which help them to serve as low-cost laboratories for policymakers and determine what policies are working or those that are not.92

Besides, uncertainty about pressing public policy issues will encourage states to experiment.

89 Carey. "Conservatism, centralization, and constitutional federalism." 90 Ibid. 91 Ibid., “It is the sentiments and sanction of the people comprising the nation--whether the people in this context be thought of as majority of qualified voters-- that ought to be the ultimate authority in determining the extent of national/states powers. It seems equally clear that the will or sentiments of the people or common constituents can only be determined through an organ of the national government.” 92 Ferejohn, John A., and Barry R. Weingast. The new federalism: can the states be trusted? Stanford (California): Hoover Institution Press, 1997, 11-12.

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In 1932, Justice Louis Brandeis shared his thoughts on the crucial role states play in

American federalism:

“There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs . . . Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”93

States serve as “laboratories of experimentation” with competition between states leading to effective policies.94 By states competing with each other to provide “more-attractive policies” to lure in business activity, “they seek innovative ways to perform the various functions of government.”95 and California provided excellent examples of states taking the lead on crucial national issues in 2007.96 By passing key legislation on critical issues such as climate change, immigration, and healthcare, they proved states can pass meaningful legislation to meet local needs while bureaucracy or political gridlock ties up Congress.

The theory for local governance continues with the principle of subsidiarity, developed in

Catholic social thought. It claims, “One should not withdraw from individuals and commit to the community that which individuals can accomplish by their own enterprise and industry.”97

93 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) quoted in Ibid, 78-79. 94 Ibid, 73. “Competition between the states and localities leads to more efficient policies and resource usage than a single national decision would produce.” 95 Ibid, 78. 96 Greenblatt, A. Dependent States Usher In A New Federalism. National Journal. http://link.galegroup.com/apps/doc/A217275625/ITOF?u=d0_mlpbcls&sid=ITOF&xid=96f02772. “In July 2007, California Gov. Arnold Schwarzenegger and New York City Mayor Bloomberg appeared together on the cover of Time Magazine under the headline “Who Needs Washington?” State and local governments were then passing dozens of laws in areas where Washington was paralyzed, including immigration, climate change, and expansion of health coverage. States had also taken the lead in regulatory areas where Washington appeared moribund, such as financial services and tobacco. There was a feeling among governors and mayors that Washington was so partisan and so distracted by the Iraq war that more and more domestic policy-making would fall on their shoulders.” 97 Carey. "Conservatism, centralization, and constitutional federalism."

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Referring to different hierarchies of government, subsidiarity calls for the most local form of government to regulate local matters. For example, public schools and neighborhood utilities are better suited for local municipalities and state governments. It is true that centralized governments may work when “…tastes are identical for an entire population.”98 However, the

United States is a larger country with citizens of different cultural makeups and regional tastes.

An entirely centralized “one-law-fits-all” approach would not be successful in meeting these different government preferences throughout the country. It should be noted that the subsidiary principle does not exclusively call for local governance, it accounts for a higher form of government to govern if it is capable and in a better position of doing so.99

A problem with the subsidiary principle is that letting state governments rule over issues with a national interest may lead to a “race to the bottom” with state laws and regulations. States may attempt to get away with the least amount of regulation to incentivize business activity in their state and increase state revenue in the process. In 1996, President Bill Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which ended federal entitlement to welfare benefits.100 Supporters of the legislation argued the bill would require states to compete to lift recipients off welfare programs to reduce expenditures. On the other hand, opponents argued it would lead to a race to the bottom in welfare benefits. Arguing states will now have the ability to provide the lowest levels of welfare services allowed, states will have an incentive to cut benefits to discourage “potential recipients with relatively high level

98 Ferejohn, John A., and Barry R. Weingast. The new federalism: can the states be trusted? 10. 99 Ibid, 73. “Second view is the level of government that can govern best or most efficiently should be entrusted to do so.” 100 Ferejohn, John A., and Barry R. Weingast. The new federalism: can the states be trusted? 65-66. State competition will lead states to serve as “policy laboratories,” helping to discover the best and most efficient ways of moving welfare recipients into the workplace.

29 of benefits” from moving to their state.101 By dramatically reducing the amount of welfare a state initially offered, states looking to cut welfare costs can encourage recipients with the highest levels of welfare benefits to move to another state offering the same amount of benefits. For example, John lives in Florida, a state that is attempting to reduce welfare recipients. Florida may reduce welfare benefits to the point where John can no longer have the same quality of life as before. Citing the race to the bottom dilemma, one may argue John would be required to move to

New York that hypothetically maintains welfare distribution levels for its recipients; therefore, it would impose on New York’s welfare system and incentivize New York to lower welfare benefits as well. There would be a race to provide the least welfare benefits, hence the term “race to the bottom.” To further illustrate the argument, I will point to Hammer v. Dagenhart (1918).

Prior to Hammer v Dagenhart, child labor was a growing public concern throughout the nation. Children were employed to work eight hours in a day and up to more than six days a week.102 States attempted to create local restrictions to eliminate child labor, but these were found to be ineffective.103 Manufacturers noted child labor restrictions were only enforced in a select number of states; they argued states that outlawed child labor placed themselves at an

101 Ibid. 102 Hammer v. Dagenhart, 247 U.S. 251, 273, 38 S. Ct. 529, 532, 62 L. Ed. 1101, 1106, 1918 U.S. LEXIS 1907, *36-37, 3 A.L.R. 649. “Children under fourteen have been employed or children between fourteen and sixteen have been employed more than eight hours in a day, or more than six days in any week, or between seven in the evening and six in the morning.” 103 "Hammer v. Dagenhart (1918)." Bill of Rights Institute. http://www.billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court- cases-elessons/hammer-v-dagenhart-1918/. “Around the turn of the twentieth century in the US, it was not uncommon for children to work long hours in factories, mills and other industrial settings. Many families depended on the income earned by their children. Public concern about the effect this kind of work had on children began to rise. Advocates for child labor laws pointed out that children who worked such long hours (sometimes as much as sixty or seventy hours a week) were deprived of education, fresh air, and time to play. They also worried about the physical risks: children in factories had high accident rates. Some states passed laws restricting child labor, but these placed states with restrictions at an economic disadvantage.”

30 economic disadvantage compared to other states that still permitted cheap child labor.104

Therefore, the Keating-Owen Child Labor Act (1916) was passed by Congress to prevent child labor. Congress used the Commerce Clause of the United States Constitution- the law prohibited the shipment of goods produced by children across state lines. Rueben Dagenhart, the father of the two children he employed, challenged the Act. He stated the law was a violation of the

United States Constitution. He argued the production of goods was a local matter and did not fall under the purview of the Commerce Clause.

Justice Day, in his majority opinion, stated it was not Congress’s responsibility to level the economic playing field between states: “There is no power vested in Congress to require the

States to exercise their police power so as to prevent possible unfair competition.” He continues,

“The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions.”105 He explains how Congress only has the authority to strictly regulate interstate commerce and not “to control the States in their exercise of the police power over local and trade manufacture.” By invoking the 10th amendment, he reserves the state’s power to govern local activity.106 However, Day’s majority opinion was not accepted by everyone, and

104 Ibid. “It is further contended that the authority of Congress may be exerted to control interstate commerce in the shipment of child-made goods because of the effect of the circulation of such goods in other States where the evil of this class of labor has been recognized by local legislation, and the right to thus employ child labor has been more rigorously restrained than in the State of production. In other words, that the unfair competition, thus engendered, may be controlled by closing the channels of interstate commerce to manufacturers in those States where the local laws do not meet what Congress deems to be the more just standard of other States.” 105 Ibid. Justice Day continues, “In some of the States laws have been passed fixing minimum wages for women, in others the local law regulates the hours of labor of women in various employments. Business done in such States may be at an economic disadvantage when compared with States which have no such regulations; surely, this fact does not give Congress the power to deny transportation in interstate commerce to those who carry on business where the hours of labor and the rate of compensation for women have not been fixed by a standard in use in other States and approved by Congress.” 106 Ibid, 37. “In interpreting the Constitution it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the National Government are reserved… The power of the States to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent and has never been

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Justice Holmes wrote a vigorous dissenting opinion, in which he argued that “[states] may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line they are no longer within their rights.”107 He explains how the Constitution gives the Congress the right to regulate such matters, and it is a part of a broader public policy scheme that is intended to benefit the entire, sovereign United States. 108

Hammer v Dagenhart was later overturned by United States v Darby (1941) with the Supreme

Court adopting Justice Holmes’s interpretation of the Commerce Clause. The Supreme Court continued to expand the purview of the Commerce Clause for decades to come.

A Comprehensive Approach

John Jay, one of the Founding Fathers of the United States, discusses the idea of national sovereignty in the Federalist Papers: No. 2:

To all general purposes we have uniformly been one people each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states. (...)109

surrendered to the general government. To sustain this statute would not be in our judgment a recognition of the lawful exertion of congressional authority over interstate commerce, but would sanction an invasion by the federal power of the control of a matter purely local in its character, and over which no authority has been delegated to Congress in conferring the power to regulate commerce among the States.” 107 Ibid. 108Ibid, 49-50. “If there were no Constitution and no Congress their power to cross the line would depend upon their neighbors. Under the Constitution such commerce belongs not to the States but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries the State encounters the public policy of the United States which it is for Congress to express. The public policy of the United States is shaped with a view to the benefit of the nation as a whole.” 109 "The Avalon Project: The Federalist Papers No. 2." Avalon Project - Documents in Law, History, and Diplomacy. http://avalon.law.yale.edu/18th_century/fed02.asp.

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As a nation-state, we are sovereign and consist of one and not 50 different countries.

There are specific issues that have spillover effects in many states and affect the nation as a whole. Such issues include but are not limited to environmental regulations and national defense.

Southern states dragging their feet to dissemble Jim Crow laws proved states cannot be fully trusted to enact appropriate laws.110 A comprehensive approach considers all factors to determine which form of government is most useful in regulating a matter.111 The principle of subsidiary calls for the most local level of government to rule but also accounts for a “hierarchical order….among the various organizations.”112 It is true that the states better regulate some factors that are local by nature: “In fact, reassigning policy to lower levels of government will, under the right circumstances, produce more (state) government and better policy.”113 It should be noted that creating federal legislation and giving too much leeway to state legislatures could be just as ineffective as no federal intervention. Similar to federal boxing legislation discussed in the last chapter, President Bush’s 2002 No Child Left Behind Law gave too much leniency to states in determining how many students were proficient in language arts and math. By doing so, states were able to adjust and lower their educational requirements to comply with the bill. 114 Federal legislation must be comprehensive; it must consist of creative ways for states to follow federal

110 Ferejohn, John A., and Barry R. Weingast. The new federalism: can the states be trusted? IX. Referring to the Southern States dragging their feet to dissemble Jim Crow laws and desegregate schools after Brown v. Board of Education. 111 Carey. "Conservatism, centralization, and constitutional federalism." “Comprehensive approach factors social and economic factors, intermediate associations and the individual's integration into the larger society in a productive and worthwhile fashion." 112 Ibid. “..hierarchical order prevails among the various organizations, the more excellent will be the authority and efficiency of the society, and the happier and more prosperous the condition of the commonwealth.” 113 Ferejohn, John A., and Barry R. Weingast. The new federalism: can the states be trusted? X. 114 Greenblatt. Dependent States Usher In A New Federalism. “Bush’s 2002 No Child Left Behind Law required states to use standardized tests to ensure that a rising share of their student population was proficient in language arts and math. But the law left it up to the states to determine what "proficiency" meant, and it's clear that many of them have gamed the system to guarantee that more their students can pass.”

33 law such as block grants based on state’s cooperation with federal guidelines.

Determining what things are local and when national uniformity should be established is the deciding factor for what level of government is most efficient in governing an area. Local activities such as neighborhood parks or utilities don’t need uniformity because they strictly affect individuals within the state. Regulation should be left to individual states when state law can stand alone and not cause negative spillovers to other states. On the other hand, national uniformity should be established when negative spillovers affect the majority of the country.

Trade regulations amongst the states prevent trade wars that affect the economic stability of the entire country and so we need a federal policy regarding tariffs, quotas, and other economic regulations. The nation’s currency needs to be the same to simplify transactions throughout the entire country and so we need a uniform, federal currency rather than have each state coin its own money. Federal crime policy needs to be uniform to persecute crimes that cross state lines including human and drug trafficking.

Ronald McKinnon and Thomas Nechyba provide a three-tier model for when it is okay to leave regulation to the states and when we need national uniformity:115

1. Central Tier (Exclusively Federal Government) - On efficiency grounds: Macroeconomic

policy, National defense, and international affairs, Federal crime policy (for crimes with

large interstate spillovers), and Environmental Regulation.

2. Middle tier (combination of state and federal)- Intrastate/ intercommunity transportation

and other state infrastructure, State crime and corrections, Judicial protection of property

rights, Public pensions, State universities, and Foundation aid for local education.

3. Lower Tier (Exclusively State) - Primary and secondary education, Intra Community

115 Ferejohn, John A., and Barry R. Weingast. The new federalism: can the states be trusted? 49.

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transportation, and Neighborhood parks/recreation/libraries.

The lack of national uniformity causing large spillovers create a need for states to have uniform regulation. Due to states demonstrating an inability to regulate specific national issues, the federal government needs to create uniform laws and regulations to eliminate lax regulations.

Uniformity for critical national issues ensures states are on an equal playing field to move forward on national issues. State and federal governments must balance each other. When

Congress has their hands tied due to mindless political infighting, states should take it upon themselves to become leaders in determining the proper solution for critical issues. However,

Congress should step in to ensure that each state is leaping forward together, as one nation, when states are ineffective in enacting legislation that involves issues with a significant impact across state lines. Ultimately, citizens and those who vote determine how the federal system works.116

The Spillover Effect in Professional Boxing

The lack of regulation in professional boxing causes a spillover effect justifying federal involvement. The variation of state regulation with HIV testing, performance-enhancing drugs testing, and neurological testing is dangerous to a boxer’s health, potentially leading to long-term injury or death. Due to Congress having greater experience with regulating spillovers, it is justified in creating uniform standards through a federal boxing commission.117

In United States v. International Boxing Club, 348 U.S. 236 (1955), the Supreme Court ruled professional boxing is interstate commerce due to boxing contests taking place on a multi- state level to broadcast and film through interstate transmission. 118 Although boxing matches

116 Ferejohn, John A., and Barry R. Weingast. The new federalism: can the states be trusted? 157. 117 Smith. "Externalities/Spillovers." Also, these governments often have greater expertise for responding to the externality. Consequently, the existence of, or potential for, externalities and spillovers is often used to justify national standards and programs. 118 U.S. v. International Boxing Club, 348 U.S. 236 (1955) at 246. “The promotion of professional championship boxing contests, in which the winners achieve 'world champion' titles, includes negotiating

35 themselves may be local activities, they are no longer local once the event is promoted across state lines. Furthermore, it is ordinary for boxers to cross state lines to compete and obtain sponsorships. Despite Congress having the authority to establish uniform regulation, we must determine if Congress would be most effective in regulating the sport.

The spillover effect demonstrated in Hammer v Dagenhart provides a direct parallel to the spillover effect in professional boxing. In Hammer v. Dagenhart, child labor was considered considerably immoral at the time. In professional boxing, a state’s inability to regulate puts a boxer’s health at a higher risk than necessary. The lack of uniformity creates a dark cloud that looms over the sport. Congress aimed to abolish child labor based on moral principles and attempted to use the Commerce Clause to reach that end. Congress should establish a federal boxing commission to create better safety standards and working conditions for professional boxers based on similar sentiments of decency. A spillover effect does not only account for the economic impact that pours across state lines; it also accounts for the social impact created by various state laws. The damage to a professional boxer’s health in the boxing industry is a negative social impact caused by the lack of uniform regulation; the lack thereof eventually leads to life-changing or life ending harm for the boxer. Because state regulation varies significantly throughout the country, the states are not in the best position to create regulations that protect professional boxers throughout the entire country. Once again, it is normal for boxers to fight throughout all 50 states in his or her career. Although a handful of states may successfully

and executing contracts with boxers for the main and preliminary bouts, arranging and maintaining training quarters, leasing suitable arenas, such as stadia or ball parks where substantial numbers of the public may be seated to view the contest, negotiating and executing contracts for the employment of matchmakers, advertising agencies, press agents, seconds, referees, judges, announcers and other personnel; organizing, assembling, and arranging other details necessary to the exhibition of the contests; selling tickets and rights to make motion pictures of the contests and to distribute them throughout the United States and in foreign countries; and selling rights to transmit the contests by radio or television throughout the United States and foreign countries.”

36 regulate the sport, a boxer’s health is at risk if granted the opportunity to box in a state with minimal regulation.

It is evident some states regulate better than others, and those few provide an excellent framework of what uniform regulation would model. It is time for the federal government to play more of a significant role in regulating the sport. The next chapter will discuss possible solutions to create uniform regulation.

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Chapter Four: The Search for a Long-term Solution for Uniform

Regulation

It is now clear uniform regulation will best serve the health and business interests of professional boxers, but precisely what a comprehensive approach would look like in professional boxing is unclear. I will examine two different solutions to create uniform regulation through a centralized organization: a federal boxing commission and the complete privatization of professional boxing. A federal boxing commission is the most appropriate solution since the implementation would be much more feasible. It would involve the cooperation between the federal government and individual states serving as regional offices to help support uniform regulation.

Proposed Legislation

The call for a federal boxing commission ebbs and flows depending on the controversial events occurring within the sport. In the early 1990’s, Senator Roth of Delaware sponsored the

Professional Boxing Corporation, a bill that would expand the federal government’s ability to regulate the sport; most importantly, “a national boxing czar would be nominated by President

Clinton and confirmed by President Clinton and confirmed by the Senate.”119 Most recently,

Senator McCain introduced the Professional Boxing Amendment Act of 2005. The bill passed the Senate on May 9, 2005,120 but it did not pass in the House of Representatives.

The United States Boxing Commission (USBC) would be created within the Department of Commerce, and it would be responsible for instituting uniform regulation with the Association

119 Anderson, Dave. "Sports of The Times; A Bill for Boxing That Is Long Overdue." The New York Times. May 23, 1993. Accessed June 05, 2018. https://www.nytimes.com/1993/05/23/sports/sports-of- the-times-a-bill-for-boxing-that-is-long-overdue.html. 120 Brooks, Nathan. "Federal Regulation of Boxing: Current Law and Proposed Legislation.” 1.

38 of Boxing Commissions serving as an advisor.121 The Association of Boxing Commissions is a

501 © (3) non-profit organization that promotes the “uniformity of health and safety standards and other requirements pertaining to the conduct of combat sports events.”122 The Professional

Boxing Amendment Act also specifies who would preside over the commission with the

Executive Director performing administrative functions.123 The bill is thorough on the USBC’s role: every boxer, promoter, or sanctioning organizations connected with a fight would be required to obtain a license. The USBC would create a national registry of boxing personnel and a medical registry to track each boxer’s medical records and suspension history.6 The USBC would work with the United States Attorney General to help enforce federal and state boxing laws.124 The bill required the USBC to select judges and referees, instead of sanctioning organizations.125 It will also initiate the creation of uniform fight contracts, management contracts, and promotional contracts with state boxing commissions being responsible for ensuring "that the mandated provisions are included in the aforementioned contacts."126

121 Ibid, 9. 122 “ABC Constitution." Association of Boxing Commissions. December 4, 2013. http://www.abcboxing.com/abc-constitution/. 123 Brooks, Nathan. "Federal Regulation of Boxing: Current Law and Proposed Legislation," 9. “The USBC would consist of three members - at least one of whom must have formerly served on a State or tribal boxing commission - appointed to three-year terms by the President with the advice and consent of the Senate, and removable by the President only for cause. The three USBC members could not all come from the same political party or region of the members - at least one of whom must have formerly served on a State or tribal boxing commission - appointed to three-year terms by the President with the advice and consent of the Senate, and removable by the President only for cause.” 124 Ibid, 10. 125 Ibid, 11. 126 Ibid, 9.

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Benefits of a Federal Boxing Commission

Teddy Atlas, a boxing commentator and Mike Tyson’s former boxing coach, is an advocate for restructuring boxing’s regulatory system. He has reached out to numerous

Congressman about the need for a federal boxing commission. He testified in front of Congress about the benefits a federal boxing commission would bring to the sport:

“If these areas can be policed by the proper government support, as in the example set by other sports, then boxing can do what it does best when given the right opportunity. It can bring out the best in people; help them find themselves; and develop confidence and dignity through the tool of discipline and a structured road. Not all will become champions, but many will become better people.”127

A federal boxing commission would create greater accountability by establishing uniform regulation throughout the United States. By doing so, uniform regulation would prohibit states laws from varying in stringency; this would be beneficial in essential areas of regulation including performance-enhancing drugs testing, HIV testing, neurological testing, athlete eligibility to turn professional, and the amount of health insurance required for a boxing event.

Uniform regulation would no longer enable the race to the bottom dilemma where states can lower business regulations to attract events in their state. Uniformity would ensure all states adhere to the uniform standards. All 50 states would be required to implement HIV testing; all 50 states would be required to implement a concussion/brain injury protocol for proper evaluations immediately after a match and the day after; requirements to turn professional would be the same throughout the country to ensure athletes are qualified to compete; health insurance requirements will be the same amount to make certain boxers receive proper health coverage in case of an injury.

127 U.S. Congress. Senate. SUBCOMMITTEE ON CONSUMER AFFAIRS, FOREIGN COMMERCE AND TOURISM OF THE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE.

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According to a bill similar to the Professional Boxing Safety Amendment Act, a federal boxing commission would have the power to subpoena individuals and enforce regulations, thereby eliminating the lack of accountability and eliminating the loopholes of current professional boxing federal legislation.

Resistance Against a Federal Boxing Commission

On the other hand, there are others in the boxing community that believe a federal boxing commission would only hurt the sport by adding a level of bureaucracy. Opponents of a federal boxing commission argue that it will diminish the role the states currently have, and funding for a commission would require taxpayer money. Don King, one of the most notorious boxing promoters in the sport’s history, shared similar sentiments in a written statement to Congress:

“As I alluded to earlier, the ABC already provides quasi-federal oversight and I believe that Congress should recommend that its decisions be followed by the other commissions. That being said, I do not believe that we should take away from the states the power to regulate the fights taking place in their respective jurisdictions. I am concerned that creating a federal agency might affect the entrepreneurial spirit of boxing. Additionally, such an undertaking would be very expensive and effectively require the creation of huge federal bureaucracy to replicate what already exists at the state level. There still would be a need to staff and house local commissions in each of the major boxing states since the commissions effectively run the shows. They conduct the weigh ins, select the referees and judges, hold hearings, engage medical personnel, oversee the anti-doping and ensure payment of the fighters' purses. It is my view that to recreate this at the federal level would be an unnecessary expenditure of taxpayers' money.”128

Mr. King’s claim that the ABC “already provides quasi-federal oversight” is misleading. As a non-profit organization, the ABC can only “encourage communication,” “promote the continual improvement of, and for, professional boxing.”129 They perform these functions through

128 “Senate Hearing- FEDERAL REGULATION OF BOXING." - FEDERAL REGULATION OF BOXING. May 22, 2002. https://www.gpo.gov/fdsys/pkg/CHRG-107shrg91859/html/CHRG- 107shrg91859.htm. 129 “ABC Constitution." Association of Boxing Commissions.

41 publishing and sharing medical information by licensed physicians, holding educational seminars to promote comprehensive health and safety regulation, and launching a charitable fund for

“indignant” fighters.130 Despite all of this, the ABC has no power to enforce state or federal law.

Most importantly, the ABC cannot legally hold state commissions accountable, which has caused more demand for a federal boxing commission. As mentioned earlier, a federal boxing commission would have the authority to subpoena individuals to enforce regulations. The point of the federal system is to create uniform standards throughout the states to protect athletes, something individual states including those with the most amount of boxing activity have failed to do. Some suggest that Congress should pass an act that would give the ABC more authority to serve as a national commission;131 the Act will create a way to emphasize the collaboration between executive directors from states that have been the most effective in regulating boxing.

Concerning a short-term solution, the ABC could raise funds as a 501(c) (3) non-profit organization by implementing revenue streams to help fund research and expand their efforts in persuading states to adopt uniform regulation. Revenue streams could include ABC apparel, fundraising events, government grants, and corporate sponsorships. They could also offer volunteer and internship opportunities to operate different functions such as the website, social media, communication efforts, advocacy, and research. With the right funding, the ABC could play a more prominent role in advocating for the proper regulation throughout the United States.

130 Ibid. 131 U.S. Congress. Senate. COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE. A REVIEW OF THE PROFESSIONAL BOXING INDUSTRY—IS FURTHER REFORM NEEDED? 16. “At that seminar, the suggestion was made, and I repeat it today, that the ABC, that an enabling act be passed by Congress which would enable the ABC, which despite what we would like to think is really a very weak organization, to have much more authority than it has now, to effectively become a national commission.”

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Despite this, the ABC would still lack the authority to enforce any uniform regulation implemented throughout the country.

The Professional Boxing Amendment Act contained one clause making it illegal “for a boxer to own or control the entity promoting the fight” if that entity has a contract with or pays money to the opposing boxer.132 It might seem like this provision would prevent a conflict of interest, but it could cause more harm than good. For example, it is typical for professional fighters at the highest levels to self-promote alongside other promotional companies to cut out the middleman (the promoter). 133 This means fighters might own and operate a promotional company to earn higher salary percentages and revenue streams (Pay-Per-View sales and ticket sales). The creation of a boxing commission should not lead to overregulating the sport in this area. Regulating whether or not a boxer can own the entity promoting the fight will most likely lead to the decline in the boxer’s earnings. The primary focus should be on making sure boxing commissions are competent in enforcing health regulations and business protections.

The bill does not radically change the regulatory system of the sport by eliminating state boxing commissions. Instead, the bill requires that the USBC must approve all boxing matches or obtain the supervision of the ABC or a boxing commission that is a member of the ABC. State commissions would still serve as regional offices and perform their ordinary functions. The state and the federal government would cooperate to guarantee professional boxing matches are regulated adequately throughout the country.

In regards to funding the program, Senator John McCain and politicians agree taxpayers should not be responsible for funding the commission. One solution is to fund the program

132 Ibid, 11. 133 Badenhausen, Kurt. "How Floyd Mayweather Became Boxing's First $1 Billion Fighter." Forbes. August 26, 2017. https://www.forbes.com/sites/kurtbadenhausen/2017/08/26/how-floyd-mayweather- became--1-billion-man/.

43 through a tax on championship fights that generate plenty of revenue.134 Former Nevada state boxing commissioner Marc Ratner believes states with the most boxing activity will be negatively affected since they will be taxed the most.135 The question of taxation to generate revenue is usually met with similar arguments. However, that is not a valid reason not to tax. A tax will benefit the state, the sport of boxing, and professional boxers by providing prominent protections for the greater good. Sanctioning organizations, entities that coordinate championship fights, could be charged appropriate fees as an alternative solution. The fee would apply to businesses generating considerable amounts of revenue from championship events instead of the states.

The Privatization of Professional Boxing

The privatization of professional boxing is another way to establish uniform regulation without involving the federal government.136 An independent organization would replicate those

134 U.S. Congress. Senate. SUBCOMMITTEE ON CONSUMER AFFAIRS, FOREIGN COMMERCE AND TOURISM OF THE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE. FEDERAL REGULATION OF BOXING.107th Cong., 2d sess. S. 107- 1098. May 22, 2004. https://www.gpo.gov/fdsys/pkg/CHRG-107shrg91859/html/CHRG- 107shrg91859.htm. Teddy Atlas on funding a federal boxing commission: “In conclusion, I would like to mention financing a Federal Boxing Commission. The financing for this commission can come from the same monies that are now given to the Ratings Organizations for ``Sanctioning Fees.'' This contribution, as well as a 2% tax from large successful promotions, such as De La Hoya-Vargas, or even Tyson-Lewis could assist in subsidizing the costs of running a commission.” 135 Rodriguez, Robert G., and George Kimball. The regulation of boxing: a history and comparative analysis of policies among American states. See Chapter 3, ‘Case Study: Boxing in Nevada,’ section ‘Interview with Former NAC Executive Director Marc Ratner (June 2005),’location, 1421. Marc Ratner on financing a federal boxing commission: “Let’s say they take a dollar from every ticket to fund this thing. That money that comes out of the state of Nevada more than any other state. I don’t want the state of Nevada to be penalized.” 136 Baglio, Scott. The Muhammad Ali Boxing Reform Act: The First Jab at Establishing Credibility in Professional Boxing, 2296.“An independent organization should be used to oversee all of the transactions that occur within the boxing industry, similar to how leagues operate in team sports. All contracts should be registered and reviewed by this organization, which should also make sure that all parties perform their obligations under these agreements. The organization would also rank boxers in each weight division, and provide rules that govern how the sport is to operate in all capacities. These rules should be strictly enforced, and disciplinary practices such as fines, bans, and suspensions should be exacted against all parties who violate the regulations.”

44 in other sports such as the NFL and NBA in the United States; it would institute an arbitration process, an unbiased ranking system of professional boxers, elimination of contract disputes due to contracts reviewed by the league, and more competitive matches. Privatizing boxing would require the sport to operate efficiently as a business. However, a private organization will only be successful if uniform standards are established, enforced, and followed by all parties.137

Although it is not clear what privatization would look like, the Professional Golfers’

Association (PGA) provides a model that could be applied to professional boxing. The organization operates and regulates professional golf matches; they are responsible for setting uniform rules in professional golf.138 As a non-profit organization, the PGA “sponsors multiple golf tours, where professional golfers go to various golf venues and compete against one each other.”139 It is led by a PGA Commissioner who may enforce rules and penalize participants.

When applied to professional boxing, athletes would participate in Tour-sanctioned matches. The boxer’s salary would be derived from the revenues generated through “television, admissions, concessions, and contributions from cosponsors.”140 The organization would have full authority to create and enforce uniform rules without the federal government becoming involved.141

137 Ibid. “Because boxing is a simple sport, there is no reason that it cannot be run in an efficient manner, as long as there is an apparatus in place that provides uniform standards and enforces them so that they apply equally to all parties.” 138 Ehrlichman, Brad. "In This Corner: An Analysis of Federal Boxing Legislation." Columbia Journal of Law & the Arts34 (2011). https://doi.org/10.7916/D8ZW1WKF, 453. ”The PGA is empowered to “set uniform rules for the sport.” PGA golfers must abide by the expounded rules or else face fines or be excluded from events. The PGA Commissioner may discipline offending tour participants. 139 Ibid. 140 Ibid, 454. 141 Ibid, 454. “The Tour’s promulgation of uniform rules would obviate the perils of patchwork state regulation discussed… without raising the specter of an intrusive and overreaching federal regulatory scheme.”

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Resistance from Promoters

A private solution through an independent organization would radically change the structure of the sport, especially for promoters who have a financial interest in preserving the current structure.142 The independent organization would sponsor all of the events eliminating the promoter’s role. Similar to the PGA, the independent organization would sponsor all of the events and the need for boxing promoters would be eliminated. Promoters would be required to dissolve their promotional companies or incorporate them into one independent organization that would govern the sport.143 Incorporating promotional companies would possibly allow promoters to become shareholders of the private organization. The organization would have to make sure regulations are serving the athletes and not just the interests of promoters. The current business model centered on the promoter would be revolutionized, and although it may benefit the fighters, the promoters and state commission’s piece of the pie would be significantly reduced.144

The Benefits of Privatization

A centralized league in the United States will help the sport advertise to a broader audience. Currently, promoters are mainly concerned with promoting their own fighters and events. It can be assumed professional boxing would be much easier to support with scheduled fights being under one umbrella. A private organization could lead to increased television

142 Ibid, 454. Because the PGA “sponsors all of the events for the players,” imposing its structure on boxing would “leave [no room for promoters,” and “it is improbable that promoters could be completely eliminated from a sport in which they are such an integral part.”242 One commentator has suggested that the federal government act to cut promoters out of boxing by “mak[ing] a law that in order to participate in professional boxing, the participant must be a member of the private association” modeled on the PGA. 143 Ibid. 144 Ibid. “Many of the same obstacles that apply to establishing a boxers’ union present an even greater barrier to creating a private, national organization to govern the sport, regardless of whether that organization takes the form of a league or a tour. Undoubtedly, a private governing boxing organization would be far more disruptive to those who control boxing than the PBAA could ever hope to be.”

46 ratings, increased merchandising opportunities, and bigger venues.145 Furthermore, eliminating controversies that have plagued the sport will only contribute to that support. 146

Conclusion

The improbable chance of Congress revisiting the creation of a federal boxing commission gives little hope of it happening anytime soon. More pressing issues such as health care and immigration will most likely take precedence. Although the request for federal oversight has failed, uniform regulation regarding health and business standards will require a call to action from professional boxers.

It is important for fighters to understand their duty to themselves, their health, and the advancement of the sport. The call for a federal boxing commission is not new; the need for one has been demonstrated by the states’ inability to regulate professional boxing within the United

States effectively. A federal boxing commission could efficiently do this, but it is ultimately in the hands of the sport’s participants to make their voices heard.

145 Ibid. 146 Ibid, 443. “It is conceivable that the business model provided by a private tour that stamped out corruption and manipulation would lead to higher television ratings, increased opportunities for merchandising and larger venues for professional boxing matches.”

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