A Quick Look at Potential Implications of the New York State Athletic Commission?s Decision to License Antonio Margarito for His Rematch with Miguel Cotto
About two-and-a-half years ago, Standing 8 Court explored the question of what the implications would be if the New York State Athletic Commission (the ?Commission?), one of the most stringent commissions in the country, licensed the now-deceased WBC lightweight champion Edwin (El Inca) Valero despite the revelation that he sustained a head injury in a 2001 motorcycle accident. At the end of the analysis, it was concluded that given its prior history of disallowing boxers with head injuries to compete in New York State, ?the Commission would be best served to stay consistent and keep Valero out of New York State.? This past month, a new chapter was added to the debate on where the Commission should draw the line in issuing licenses to boxers with potentially career threatening injuries when it licensed Antonio Margarito in advance of his December 3, 2011 rematch with Miguel Cotto at Madison Square Garden. The concern stemmed from the fact that Margarito required a cataract removal and intraocular lens placement in his right eye as a result of injuries sustained to same in his November 13, 2010 bout against Manny Pacquiao. Over the initial objections of several Commission members, Margarito was licensed after undergoing an examination by a New York-based ophthalmologist of the Commission?s choosing. The Commission?s decision begs the question as to whether his licensure, despite the recent cataract, will create a slippery slope in New York State that could result in other boxers with potentially career threatening injuries to either be licensed or threaten legal action in order to receive consideration similar to that which was afforded to Margarito. A quick look follows.
A Recap of the Medical Testing Required for Licensure in New York State
In New York, in order to ?obtain a license or the renewal of a license to box, all boxers shall submit to a thorough medical examination by a physician approved by the medical advisory board.? Said medical examination must include ?a complete physical examination, an electroencephalographic examination, electrocardiographic examination, CAT scan, dilated eye examination by a licensed ophthalmologist and laboratory and other tests and examinations as may be required by such physician and/or the commission.? Underscoring the importance of the pre-licensing medical examinations, New York mandates elsewhere in its laws governing professional boxing that:
?[a]ny professional boxer applying for a license or renewal of a license?shall undergo a comprehensive physical examination including clinical neurological and neuropsychological examinations by a physician approved by the commission. If, at the time of such examination, there is any indication of brain injury, or for any other reason the physician deems appropriate, the boxer shall be required to undergo further neurological and neuropsychological examinations by a neurologist including, but not limited to, a computed tomography or medically equivalent procedure. The commission shall not issue a license to a boxer until such examinations are completed and reviewed by the commission. The results of all such examinations herein shall become a part of the boxer?s permanent medical record as maintained by the commission. The costs of all such examinations called for?shall be assumed by the state if such examinations are performed by a physician or neurologist approved by the commission.?
In addition, a boxer shall present to the Commission his or her ?medical history relating to any physical condition, medical test or procedure which relates to his ability to box, and a record of all medical suspensions[]? along with their application for a license.
The above laws leave little room for disguising evidence of, or omitting information about, a boxer?s medical conditions and history. They also leave no room for the removal of any medical findings from a boxer?s permanent record. Although a boxer denied a license on medical grounds always has an opportunity for a hearing before the Commission can take ?any final action negatively affecting such person?s individual privileges or property granted by a license duly issued by the commission[,]? therefore, an ophthalmologic injury such as Margarito?s will forever be in the medical record of such a boxer requesting the hearing and could render the hearing over before it started if there were well-founded concerns that such an injury could raise.
Notwithstanding the above, the Commission alone has and ?is vested with the sole direction, management, control and jurisdiction?over all licenses to any and all persons who participate in?boxing, sparring or wrestling matches or exhibitions? in the State of New York.. The inference then is that no matter what is in a boxer?s medical file, it is ultimately within the Commission?s discretion whether or not a boxer should be granted a license despite a given condition. In that case, in addition to evaluating the condition itself, the analysis of a given boxer then becomes a balancing test between such issues as whether a given decision would subject the Commission to liability in the event of an injury to a boxer, whether it comports with public policy to license a given boxer, what kind of precedent the licensure of one boxer could set for the licensure of another boxer, and where the Commission could draw the line in licensing certain boxers with questionable medical conditions over others. Each of these items will be applied below to Margarito?s situation, as they previously were as to Valero in ?Edwin Valero: Would an Exception Knock Out the Rule?,? available at http://www.8countnews.com/news/125/ARTICLE/1535/2009-04-13.html.
The Commission?s Potential Liability if Margarito is Injured Due to a Vision Problem in His Right Eye
It was recognized by the New York Court of Claims in Joey Gamache?s lawsuit against the Commission stemming from the brain damage that he suffered in his February 26, 2000 knockout loss to Arturo Gatti at Madison Square Garden that the statutory and regulatory scheme that governs professional boxing in New York ?does indeed create?a duty of care which runs from the Athletic Commission directly to the licensed boxers under its jurisdiction and control.? As applied to Margarito, if he sustains an eye injury this weekend in his rematch with Cotto, or is brutally knocked out by a punch he could see coming because of pre-existing limitations of his right eye, the Commission could theoretically be found liable in a subsequent lawsuit. Despite the additional examination that it required Margarito to go through, therefore, the Commission essentially licensed Margarito at its peril.
Was it Previously Against Public Policy in New York State to License a Boxer with a Known Ophthalmologic Injury?
Though New York State has consistently disallowed boxers with known brain injuries from being licensed, indicating that allowing boxers with known brain injuries to box in New York is against public policy, no such argument can be raised by looking at its history of boxers with ophthalmologic or other health problems which may or may not actively impact a boxer?s safety or wellbeing when he in the ring. Further, Margarito is not going into the ring with an untreated cataract clouding his vision. He is going in with an artificial lens that some would argue may actually make his vision better than it was even before the cataract he sustained after facing Pacquiao. Given the state of the science of ophthalmology, therefore, it is not a quantum leap to assert that granting Margarito a license despite his recent cataract was not against existing public policy in New York State. Indeed, Standing 8 Court has spoken with at least one ophthalmologist in New York who had performed corrective procedures on several amateur and professional boxers and mixed martial artists who have gone on to compete within state lines without an issue.
What Kind of Precedent Did Licensing Margarito Set?
It would not appear that Margarito?s licensure necessarily created any new precedent. Although Margarito?s licensure is shrouded in suspicion given the amount at stake at the time that the outside evaluation was demanded, the granting of a license after further ophthalmologic testing is consistent with the regulatory framework summarized above as to the medical clearance of boxers. If anything, the steps Margarito had to take because of his cataract should make it clear to other boxers with a history of ophthalmologic issues that it is no sure thing that they will be licensed in New York State and that they have to be prepared for heightened scrutiny by the Commission. Most boxers coming before the Commission with ophthalmologic issues would likely be of a lower profile and lower impact than a main event boxer on an HBO PPV-televised card at Madison Square Garden. If the Commission had Margarito break camp, fly in from Mexico, and submit to an ophthalmologic examination before voting to license him, best believe they would do the same with you.
Is the Commission Capable of Drawing a Line Between One Eye Injury and Another?
There are myriad different ophthalmologic conditions, from glaucoma and cataracts, to detached retina and macular edema. An ophthalmologist can readily identify all such conditions, evaluate a boxer accordingly, and opine as to whether they feel such a condition would materially affect a boxer?s safety in the ring in advance of licensure. Thus unlike with a brain injury, where some of the effects may not be fully understood or even detectable at the time of an evaluation and thus a high degree of discretion is in order, ophthalmologic injuries are more readily diagnosed and understood. At its most extreme, the Commission and its doctors can readily distinguish between a major ophthalmologic problem, such as blindness, and a marginal injury, such as a scratched cornea, and issue or deny licenses accordingly.
In sum, unlike the licensure of someone such as Valero or New York?s own ?Baby? Joe Mesi, each of whom had a history of brain injury, it does not appear that the licensing of Margarito will create a slippery slope in New York State that could either result in boxers with potentially career threatening injuries being erroneously licensed or give other boxers a real leg to stand on in any legal action against the Commission for denying them a license where it granted Margarito one. Even if Margarito being licensed ever again is hard to swallow for some given his hand wrap scandal, therefore, the rules about medical clearance before licensure in New York State do not appear to be at peril of being swallowed by any exception made for him.
Paul Stuart Haberman, Esq. is a New York-based health and sports law attorney. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. Paul can be e-mailed at [email protected]. He can also be followed on Twitter at @Standing8Court.
