In 2016, Mark Hunt, a ranked heavyweight mixed martial artist, faced the notorious Brock Lesnar for the 200th UFC. Lesnar was a high-profile fighter at the time, and the matchup attracted significant attention: This would be the first time in nearly five years that the former UFC champion would be setting foot in the octagon. He emerged victorious; however, the result was later changed to a “no contest” after it was discovered that Lesnar had tested positive for a drug called clomiphene. Hunt was not aware of Lesnar’s PED use at the time the two fought. Clomiphene is used most regularly in the sports world by athletes in what is known as “post-cycle therapy,” a protocol intended to kickstart and aid hormonal recovery after recent usage of anabolic steroids. Clomiphene itself is a banned substance. In response, the instant case ensued, and everyone involved found themselves embroiled in a very different kind of fight for the next several years, one that would challenge how we think about consent in the world of sports. Hunt brought myriad claims against the UFC in federal court for everything from fraud to racketeering to, perhaps most interestingly, battery and abetting battery.
The Ninth Circuit entertained the possibility of battery. The Second Restatement of Torts notes that “consent to a fight with fists is not consent to an act of a very different character, such as biting off a finger, stabbing with a knife, or using brass knuckles.” Thus, defective consent was at the crux of the plaintiff’s battery claim. Hunt argued that Lesnar’s drug use was akin to brass knuckles or a knife. Essentially, he contended that fighting an opponent on PEDs substantially changed the nature of the fight and invalidated his consent. On remand to the District of Nevada, the claim failed on an evidentiary basis. The district court’s findings were specific to what little evidence was available concerning Lesnar’s hormonal state on the night he fought. Judge Dorsey noted that “Hunt’s distinction between the natural-strength and supercharged fighter cannot carry the day on this record, however, because there is no evidence that Lesnar was supercharged in this fight.” The court went on to emphasize that, despite the implications, there was no evidence to prove Lesnar used anabolic steroids because he only tested positive for clomiphene. Hunt’s argument failed on factual grounds, but the legal principles underpinning it were sound. The drugs may not have been Lesnar’s brass knuckles in this case, but they might have been on slightly stronger facts.
This begs the question: Could this same standard be applied to the principles of consent in other sports for other unseen advantages? Even though the courts narrowly defined their decision in this specific case, the answer is still a resounding yes, especially when it comes to preserving player safety. During oral arguments, the parties made much ado about the implications of this logic in the context of other sports. The defendants cited a case where a similar battery claim was brought by a baseball player who had been intentionally harmed in the course of the game. The Ninth Circuit determined there was nothing in the record to conclude that doping is within the normal scope of a mixed martial arts bout, whereas in the cited case, there had been a factual finding that intentional beaning was within the range of ordinary baseball activity. The court seemed to shun the idea that there is an inherent assumption of risk when dealing with cases like Hunt’s, with the assumption of risk being defined as consent to conduct that is merely negligent. Therefore, this battery claim turned wholly on whether Hunt’s consent was defective.
Concerns arise about the far-reaching impact of this conclusion in the world of sports, particularly due to the lofty principles that need to be balanced when it comes to consent. How much information do both competitors need in order to give effective consent? And how do we balance the need for disclosure of this information with privacy rights when it comes to, say, a competitor’s sensitive medical data?
Oliver Wendell Holmes is often credited with saying, “The right to swing your fist ends where the other man’s nose begins.” This poetic analogy about fist fighting, now finding its way into a case about actual fist fighting, captures the bigger policy issues perfectly: The right to compete or to withhold certain personal information must be carefully weighed against the potential harm or disadvantage it might impose on others. In the context of sports, ensuring that all competitors are on an even playing field requires a delicate balance between transparency, privacy, fairness, and, most importantly, safety.
Typically, the assumption of risk serves as a defense to battery claims in inherently risky activities because the potential claimant has factored in the possibility of harm and consented through their participation. To the potential claimant, the risk is worth the reward, and the market itself helps efficiently allocate legal rights or privileges. But this premise fails when we begin to discuss unseen advantages that could make a potential tortfeasor much more dangerous to their opponent. If the potential claimant no longer has a clear sense of what they’re getting into, everything becomes skewed. This leads to a system where individuals are more likely to be harmed and bring suits like this one.
The dragged-out fistfight that was Hunt v. Zuffa was only just resolved in 2023 and remains the sole case of this magnitude to directly address whether consent was defective due to a disparity in hormone levels or other extra-physiological differences. Although courts generally aim to leave these types of questions to regulatory bodies, it is likely that we will encounter more cases like this in the future.