NOTES PERFORMANCE-ENHANCING DRUGS IN BOXING

335

NOTES

PERFORMANCE-ENHANCING DRUGS

IN BOXING: PREVENTING THE SWEET

SCIENCE FROM BECOMING CHEMICAL

WARFARE

JONATHAN H. KOH

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................. 336

II. BACKGROUND ................................................................................. 342

A. THE BOXING INDUSTRY ............................................................ 342

B. THE REGULATORY FRAMEWORK .............................................. 345

C. THE CURRENT STATE OF DRUG TESTING IN BOXING ............... 347

D. THE LACK OF ENFORCEMENT ................................................... 353

E. A COMPARISON TO OTHER SPORTS .......................................... 355

III. FEDERAL REGULATION OF BOXING ......................................... 357

A. HISTORY OF FEDERAL INTERVENTION ...................................... 357

1. Early Boxing Legislation .................................................... 357

2. A Period of Successful Boxing Reform .............................. 358

3. Deficiencies in the PBSA and Ali Act ................................ 359

4. Recent Legislative Attempts ............................................... 361

* Class of 2014, University of Southern California Gould School of Law; B.A. Economics and

Classical Studies 2010, University of California, San Diego. I am extremely grateful to all those in the

boxing and anti-doping industries who took the time to answer my seemingly endless questions,

including Tim Starks, founder of The Queensberry Rules Boxing Blog; Thomas Hauser, prominent

boxing journalist; Ryan Connolly, General Counsel for the Voluntary Anti-Doping Association

(“VADA”); and Annie Skinner, Media Relations Manager for the United States Anti-Doping Agency

(“USADA”). Many thanks also to the dedicated staff and editors of the Southern California Law

Review. Finally, my deepest gratitude to Professor Alex Lee, who not only provided invaluable advice

and feedback throughout the writing and publication process, but also gave me the confidence to write

on a topic so important to me.

336 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

B. THE CONSTITUTIONALITY OF CONGRESSIONAL

REGULATION OF PED USAGE IN BOXING ................................. 364

1. Tenth Amendment .............................................................. 364

2. Fourth Amendment ............................................................. 365

IV. POSSIBLE SOLUTIONS .................................................................. 366

A. EXISTING PROPOSALS ............................................................... 367

B. AMENDING THE PBAA TO ADDRESS THE PED ISSUE ............... 370

V. ADDRESSING POTENTIAL CONCERNS ....................................... 373

A. COST CONCERNS ....................................................................... 373

1. The Costs of Establishing the USBA and Better PED

Testing ................................................................................ 373

2. Self-Funding and Benefits Outweigh the Costs .................. 375

B. CONSTITUTIONAL CONCERNS ................................................... 382

C. POLITICAL CONCERNS ............................................................... 384

VI. CONCLUSION .................................................................................. 385

I. INTRODUCTION

Throughout its history, the sport of boxing has been known as much

for its corruption and scandals as its courageous fighters and memorable

bouts.

Indeed, it has been referred to by some as the “red light district of

sport[s].”

Even today, boxing is plagued by fixed fights,

exploitative

promoters, greedy sanctioning organizations,

unnecessary health risks to

boxers, incompetent state athletic commissions, and a confusing array of

weight divisions with a multitude of world champions.

In fact, some of

these issues were so rampant that Congress, in 1996 and 2000, passed

federal legislation attempting to address them.

1. Brad Ehrlichman, In This Corner: An Analysis of Federal Boxing Legislation, 34 COLUM.

J.L. & ARTS 421, 421–22 (2011).

2. John McCain & Ken Nahigian, A Fighting Chance for Professional Boxing, 15 STAN. L. &

POL’Y REV. 7, 7–8 (2004) (quoting Jack Newfield, The Shame of Boxing, NATION, Nov. 12, 2001, at 1)

(internal quotation marks omitted).

3. Boxer Suspended for Taking Dive, ESPN (Feb. 13, 2013, 12:31 PM),

http://espn.go.com/boxing/story/_/id/8943634/north-dakota-suspends-nicholas-capes-taking-dive-ray-

edwards.

4. See Ehrlichman, supra note 1, at 433–34 (discussing the financial interests of sanctioning

organizations in determining boxing rankings).

5. McCain & Nahigian, supra note 2, at 8. As of October 11, 2012, there were eighty-eight

different major world title belts being held by seventy-four champions in seventeen separate weight

classes. Tim Starks, The Transnational Boxing Rankings Board: An Opening Bell for Reform,

QUEENSBERRY RULES (Oct. 11, 2012), http://www.queensberry-rules.com/2012-articles/october/the-

transnational-boxing-rankings-board-an-opening-bell-for-reform.html.

6. Professional Boxing Safety Act, 15 U.S.C. §§ 6301–6313 (2012).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 337

Recently, a new problem has entered the conversation in boxing

circles: illegal performance-enhancing drugs (“PEDs”).

This is not an

issue unique to boxing; it has left an indelible stamp on the public

consciousness in recent times.

In January 2013, Lance Armstrong, winner

of seven consecutive Tour de France titles

and one of the most

recognizable athletes in the world, was exposed for his PED use and

ongoing cover-ups in what has been called “the most outrageous, cold-

hearted and elaborate lie in the history of sports.”

In baseball, the 2013

hall of fame ballot included household names such as Barry Bonds, Mark

McGwire, Sammy Sosa, and Roger Clemens, but strong links to PEDs for

all of these players meant that baseball writers failed to induct any of these

nominees.

This marked only the second time in forty years that no player

managed to get the requisite number of votes for induction.

In football,

decorated National Football League (“NFL”) linebacker Ray Lewis was

suspected of using PEDs just months before he and his team won the 2013

Super Bowl.

For many of these sports, PED scandals are nothing new.

Indeed, it has been such a prominent social issue that President George W.

Bush brought up the pressing need to address PEDs in his 2004 State of the

Union speech.

But only in the past few years has boxing been forced to

7. Gabriel Montoya, Dr. Margaret Goodman and VADA Hope to Educate and Clean Up

Boxing, DOGHOUSEBOXING.COM (Dec. 27, 2011), http://www.doghouseboxing.com/Gabriel/

Montoya122711.htm.

8. In general, almost every major professional sport is dealing with this complicated PED issue.

“That complexity reflects a mix of controverted justifications, enforcement mechanisms that implicate

privacy interests and feature an inverse relationship between expense and reliability, and historically

untrustworthy national and international enforcement authorities.” Lewis Kurlantzick, Is There a

Steroids Problem? The Problematic Character of the Case for Regulation, 40 NEW ENG. L. REV. 789,

789–90 (2006) (footnotes omitted).

9. John Coon, Lance Armstrong’s Career Highlights: His Top Cycling Moments, YAHOO!

SPORTS (Aug. 24, 2012, 6:18 PM), http://sports.yahoo.com/news/lance-armstrongs-career-highlights-

top-cycling-moments-221800399.html.

10. Michael O’Keefe, Lance Armstrong Sued by SCA Promotions for $12.1 Million for ‘Cold-

Hearted, Elaborate’ Lie, NYDAILYNEWS.COM, (Feb. 8, 2013, 1:06 AM),

http://www.nydailynews.com/sports/i-team/armstrong-sued-12m-cold-hearted-elaborate-lie-article-

1.1258614 (quoting SCA Promotions, Inc. v. Armstrong, No. 13-01564 (Tex. Dist. filed Feb. 7, 2013)).

11. Matt Smith & Steve Almasy, Baseball Writers Balk at Hall of Fame Class of ‘13, CNN,

http://www.cnn.com/2013/01/09/sport/baseball-hall-of-fame/ (last updated Jan. 10, 2013, 7:41 AM).

12. Darren Rovell, Cooperstown Insists It Can Still Thrive, ESPN,

http://espn.go.com/mlb/hof13/story/_/id/8873058/baseball-hall-fame-cooperstown-mayor-shrugs-2013-

induction-woes (last updated Jan. 23, 2013, 4:33 PM).

13. Andrew Sharp, Ray Lewis and PEDs in Pro Sports, SBNATION (Feb. 2, 2013, 11:40 AM),

http://www.sbnation.com/nfl/2013/2/2/3942156/ray-lewis-PEDs-super-bowl-2013.

14. Address Before a Joint Session of the Congress on the State of the Union, 1 PUB. PAPERS 81

(Jan. 20, 2004), available at http://www.gpo.gov/fdsys/pkg/PPP-2004-book1/pdf/PPP-2004-book1-doc-

pg81-2.pdf.

338 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

recognize this problem,

as PEDs have become as much of a hot-button

issue in prizefighting as it was in baseball during the steroid-rampant era of

the 1990s.

However, the inherent nature of the sport of boxing, along

with its unique structural features, requires a solution somewhat different

from those proposed in other sports.

In boxing, the issue of PED testing gained steam in 2010 when Floyd

Mayweather was negotiating a fight with Manny Pacquiao. Mayweather,

the current pound-for-pound champion

and pay-per-view star, demanded

that both fighters submit to PED testing by the United States Anti-Doping

Agency (“USADA”) in addition to the customary and required state

athletic commission and sanctioning organization drug testing.

Mayweather, among other boxers,

had voiced suspicions that Pacquiao

used PEDs as he conquered weight class after weight class, seemingly

gaining strength and power as he became an eight-division world

champion.

Pacquiao refused, declaring that although he was a clean

fighter, Mayweather had no right to dictate such terms to him, and insisted

that he would only undergo testing under the usual mandatory state rules.

15. See, e.g., Steve Kim, The Perils of Boxing, SPORTS ON EARTH (Oct. 24, 2013),

http://www.sportsonearth.com/article/63283528/ (“Only now is boxing beginning to understand that

PEDs are every bit as prevalent in their game as Major League Baseball or the NFL.”).

16. Steve Kim, The Soapbox—Dec. 1, 2012, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/the-soapbox--dec-1-2012 (last visited Dec. 25,

2013).

17. Pound for Pound, THE RING, http://ringtv.craveonline.com/ratings (last visited Dec. 25,

2013).

18. Gabriel Montoya, Azad Championship Report—Floyd Mayweather and the New Wave of

Drug Testing in Boxing, MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-news/azad-

championship-report---floyd-mayweather-and-the-new-wave-of-drug-testing-in-boxing (last visited

Dec. 25, 2013).

19. Former champion Jorge Arce has said that he believes Pacquiao is using PEDs. Paul Magno,

Arce: Pacquiao Is Using PEDs, ‘That’s for Sure,’ YAHOO! SPORTS (Feb. 19, 2013, 5:37 AM),

http://sports.yahoo.com/news/arce-pacquiao-using-peds-thats-sure-103700827--box.html. Current

champion Paulie Malignaggi also hinted that he believed Pacquiao was using PEDs, but refused to get

into specifics. Ryan Burton, Malignaggi Blasts Diaz, Feels Weird About Manny Pacquiao,

BOXINGSCENE.COM, www.boxingscene.com/malignaggi-blasts-diaz-feels-weird-about-manny-

pacquiao--23552 (last updated Nov. 18, 2009).

20. Kevin Iole, Floyd Mayweather Jr. Rants About Manny Pacquiao, PED Use and Bob Arum’s

Untruths, YAHOO! SPORTS (May 2, 2012, 1:49 AM), http://sports.yahoo.com/news/boxing--floyd-

mayweather-jr--rants-about-manny-pacquiao-and-bob-arum.html. Pacquiao turned professional fighting

at 106 pounds, eventually conquering eight weight classes and moving all the way up to 154 pounds to

beat Antonio Margarito for a junior middleweight title. Tim Starks, Manny Pacquiao: The Universe’s

Questions, Answered, QUEENSBERRY RULES (Sept. 9, 2011), http://www.queensberry-rules.com/2011-

articles/september/manny-pacquiao-the-universes-questions-answered.html.

21. See John Whisler, Mayweather Talking Pacquiao, but Drug Tests, Too, MYSA,

http://www.mysanantonio.com/sports/boxing/article/Mayweather-talking-Pacquiao-but-drug-tests-too-

1450425.php (last updated July 3, 2011, 12:01 AM).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 339

Pacquiao even sued Mayweather for defamation.

The result was that the

biggest fight in boxing history—a bout expected to break all pay-per-view

and revenue records—failed to come to fruition because of a disagreement

over drug testing.

But 2012 was the real “coming-out party” for PED awareness in

professional boxing.

While baseball’s “Steroids Era” began in the 1980s

and peaked more than a decade later,

and in other sports, including

football, cycling, and track and field, the scandals came in waves,

boxing

had previously only experienced ripples.

Now, following a string of high-

profile fighters testing positive for banned substances, it is widely

recognized that boxing has a serious PED usage problem,

and the

discussion of better drug testing in prizefighting has reached a “fever

pitch.”

On May 4, 2012, it was revealed that the World Boxing Association

(“WBA”) and the International Boxing Federation (“IBF”) junior

welterweight champion Lamont Peterson had tested positive for synthetic

testosterone, and his upcoming Las Vegas title bout was canceled.

22. T.M., Boxing’s Two Titans: How “Money” Is Mayweather?, ECONOMIST (Sept. 19, 2011,

4:45 PM), http://www.economist.com/blogs/gametheory/2011/09/boxing%E2%80%99s-two-titans. In

September 2012, Pacquiao and Mayweather agreed to a settlement in the defamation suit. Mayweather,

Pacquiao Settle Defamation Case, USA TODAY, http://usatoday30.usatoday.com/sports/boxing/story/

2012/09/25/mayweather-pacquiao-settle-defamation-case/57841644/1 (last updated Sept. 25, 2012, 5:40

PM).

23. Daniel Gandert & Fabian Ronisky, American Professional Sports Is a Doper’s Paradise: It’s

Time We Make a Change, 86 N.D. L. REV. 813, 813 (2010).

24. Gabriel Montoya, Yuriorkis Gamboa Tests Positive for Being a Modern Athlete,

MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-news/yuriorkis-gamboa-tests-

positive-for-being-a-modern-athlete (last visited Dec. 25, 2013).

25. Holli N. Heiles, Baseball’s “Growth” Problem: Can Congress Require Major League

Baseball to Test Its Athletes for Human Growth Hormone? A Proposal, 62 ARK. L. REV. 315, 322–23

(2009).

26. Joshua H. Whitman, Note, Winning at All Costs: Using Law and Economics to Determine the

Proper Role of Government in Regulating the Use of Performance-Enhancing Drugs in Professional

Sports, 2008 U. ILL. L. REV. 459, 462.

27. Gabriel Montoya, A Conversation with Dr. Margaret Goodman Part Two: PEDs in Boxing,

MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-news/a-conversation-with-dr-

margaret-goodman-part-two-peds-in-boxing (last visited Dec. 25, 2013).

28. Eric Raskin, Boxing’s PEDs Issue Impossible to Ignore, ESPN (Oct. 24, 2012, 12:32 PM),

http://espn.go.com/blog/Boxing/post/_/id/1584/boxings-ped-problem-impossible-to-ignore (“[I]n 2012,

for the first time, those of us who would like to pretend this problem doesn’t exist have no choice but to

acknowledge that it does.”).

29. Montoya, supra note 7.

30. Thomas Hauser, The PED Mess: Part One, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/the-ped-mess-part-one (last visited Dec. 25, 2013).

340 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

However, Peterson retained his IBF championship title

and successfully

defended his championship belt eight months later in Washington, D.C.,

without receiving any punishment in the form of fines or suspensions.

Just a few weeks after Peterson’s positive test, Andre Berto, the World

Boxing Council (“WBC”) welterweight champion, tested positive for the

anabolic steroid Norandrosterone while preparing for his own title defense

in California.

Although that fight was also called off and Berto’s license

was temporarily suspended, he was quickly relicensed by the California

State Athletic Commission without a hearing and fought in a championship

bout in California less than six months later, making an undisclosed seven-

figure payday.

In October of the same year, Erik Morales, a Mexican boxing legend

and champion in four different weight classes, repeatedly tested positive for

Clenbuterol in samples taken before a championship bout headlining the

first fight card at a new billion-dollar stadium in New York.

Although

standard protocol dictates that test results be released after two positive

tests, USADA conducted four separate tests with positive results without

notifying the New York State Athletic Commission.

Despite the eventual

public revelation that Morales had tested positive twice (in four separate

samples) in the two weeks preceding the fight, the promoters, sanctioning

organizations, and state athletic commission involved all permitted the

fight to take place.

Meanwhile, in the span of a few short months,

31. Gabriel Montoya, Peterson vs. Holt: Another Bad Precedent for Boxing?, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/peterson-vs-holt-another-bad-precedent-for-

boxing (last visited Dec. 25, 2013).

32. Id. Technically, the WBA did strip Peterson of his belt. Id. After that, Peterson requested a

licensing hearing in Nevada, but he claims that the Nevada State Athletic Commission essentially told

him that he did not even need a hearing to get relicensed. See Gabriel Montoya, Peterson Comes Back,

Goes Home and Moves Forward, MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-

news/peterson-comes-back-goes-home-and-moves-forward (last visited Dec. 25, 2013) [hereinafter

Montoya, Peterson Comes Back].

33. Hauser, supra note 30.

34. Dan Rafael, Robert Guerrero to Fight Andre Berto, ESPN (Oct. 15, 2012, 8:16 PM)

http://espn.go.com/boxing/story/_/id/8509857/robert-guerrero-fight-andre-berto-november-24.

35. Gabriel Montoya, Morales Test Positive for Clenbuterol, the Fight Tests Boxing Morals,

MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-news/morales-test-positive-for-

clenbuterol-the-fight-tests-boxing-morals (last visited Dec. 25, 2013).

36. Thomas Hauser, The PED Mess: Part Two, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/the-ped-mess-part-two (last visited Dec. 25,

2013).

37. Hauser, supra note 30. This fight “marked the first time the public knew a fighter was being

allowed to compete despite test[ing] positive for a banned substance twice on two separate dates

complete with ‘B’ sample confirmations leading up to a televised world title fight.” Gabriel Montoya,

USADA, Golden Boy and Positive Drug Test Management Part One, MAXBOXING.COM,

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 341

Antonio Tarver, Peter Quillin, Floyd Mayweather, and Julio Cesar Chavez

Jr., all former or current boxing world champions, were implicated in PED

usage scandals or suspicions, either by testing positive or refusing to

release their drug test results.

But 2012 did not see the end of PED issues in boxing. In late January

2013, the Biogenesis scandal broke out. Referred to by some journalists as

“BALCO East Coast,”

Biogenesis, a Miami-based anti-aging clinic,

leaked a lengthy list of athletes and coaches to whom it was supplying

designer steroids. This list included baseball superstar Alex Rodriguez,

tennis player Wayne Odesnik, and former WBA and IBF featherweight

champion Yuriorkis Gamboa.

However, under state athletic commission

rules, a professional boxer, unlike other professional athletes, cannot be

fined or suspended retroactively if he has passed the drug test. Therefore,

Gamboa faced no punishment in the face of this revelation.

In contrast,

Alex Rodriguez was banned by Major League Baseball (“MLB”) for an

unprecedented 211 games for the same infraction.

In a period of less than twelve months, it was made crystal clear that

boxing has two major problems with PEDs. First, many high-profile boxers

are using banned substances. Second, the existing regulatory framework

does little to detect PED use among professional boxers or enforce proper

punishment once such use is discovered. There has been significant

literature on the topic of PED regulation in professional sports, primarily

for the major team sports of baseball, basketball, and football. There has

also been some discussion about federal regulation of professional boxing

with respect to general health and safety standards and other corrupt

http://www.maxboxing.com/news/max-boxing-news/usada-golden-boy-and-positive-drug-test-

management-part-one (last visited Oct. 24, 2013).

38. Hauser, supra note 30; Hauser, supra note 36.

39. Montoya, supra note 24. The BALCO scandal in 2004 was one of the biggest and most

widespread steroids scandals in sports history. See BALCO Investigation Timeline, USA TODAY,

http://usatoday30.usatoday.com/sports/balco-timeline.htm (last updated Nov. 27, 2007, 5:10 AM)

(detailing key dates and events of the BALCO investigation).

40. Tim Elfrink, A Miami Clinic Supplies Drugs to Sports’ Biggest Names, MIAMI NEW TIMES

NEWS (Jan. 31, 2013), http://www.miaminewtimes.com/2013-01-31/news/a-rod-and-doping-a-miami-

clinic-supplies-drugs-to-sports-biggest-names/full/.

41. Kevin Iole, Yuriorkis Gamboa Linked to Anti-Aging Clinic Allegedly Distributing PEDs, but

He’ll Face No Consequences, YAHOO! SPORTS (Jan. 29, 2013, 3:37 PM)

http://sports.yahoo.com/blogs/boxing/yuriorkis-gamboa-linked-anti-aging-clinic-allegedly-distributing-

203749617--box.html.

42. Teri Thompson et al., Alex Rodriguez Hit with Unprecedented 211-Game Drug Suspension

by Major League Baseball; Yankees Star Will Fight the Ban Which Starts Thursday,

NYDAILYNEWS.COM, http://www.nydailynews.com/sports/i-team/a-rod-mlb-211-game-drug-

suspension-article-1.1418060 (last updated Aug. 6, 2013, 1:55 AM).

342 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

practices. But there has been no meaningful scholarship on the rising issue

of regulating PED use in boxing. This Note tackles that problem and argues

that while the recent proposed Professional Boxing Amendments Act

(“PBAA”) is a step in the right direction for boxing regulation, in light of

the recent PED issues in the sport, further federal regulatory measures

addressing PED regulation in professional boxing are warranted in order to

better ensure its passage, adequately protect the health and safety of boxers,

safeguard the public integrity of the sport, and preserve the economic value

of professional boxing.

Part II of this Note examines the economic impact of the boxing

industry, its regulatory framework, and the current state of drug testing in

boxing. Part III reviews the history of federal legislation in boxing up to the

present day and addresses accompanying constitutional concerns. Part IV

summarizes some proposed solutions by others and recommends amending

the PBAA to include PED regulation. Part V examines and addresses

potential counterarguments against the measure, and Part VI concludes.

II. BACKGROUND

A. THE BOXING INDUSTRY

Boxing is an individual sport, much like fencing, wrestling, tennis, or

taekwondo. Nevertheless, in terms of economic revenues generated, boxing

is more similar to mainstream sports such as baseball and basketball.

the United States alone, professional boxing is a multibillion dollar

industry.

However, while there are more than 8500 licensed professional

boxers in the United States, the majority do not make a substantial amount

of money boxing, with many earning as little as $400 per fight.

The

structure of boxing is such that fighters give up most of their fight purses in

license fees and payments to their promoters, managers, and trainers.

Because they are often uneducated and come from impoverished

backgrounds, boxers are frequently exploited by their promoters and other

major players in the game.

43. “While not considered within the mainstream of sports, the substantial dollars, glorified

history and the ‘electricity’ that is generated at a major World Championship Boxing event is arguably

unparalleled by any other sporting event.” Jeffrey S. Fried, The Sweet Science, Legally Speaking

(Professional Boxing), 14 J. LEGAL ASPECTS SPORT 75, 102–03 (2004).

44. Ehrlichman, supra note 1, at 441.

45. Melissa Neiman, Protecting Professional Boxers: Federal Regulations with More Punch, 15

SPORTS LAW. J. 59, 64 (2008).

46. Id.

47. Id.; Ehrlichman, supra note 1, at 441–42.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 343

However, boxing is an event-driven sport, and fight cards can be quite

lucrative.

Moreover, a professional boxer can attain wealth and reach

superstar status if he becomes a pay-per-view star.

Past boxers who fit

into this category include Mike Tyson, Oscar De La Hoya, and Evander

Holyfield.

Current fighters who are true marquee attractions are

Mayweather, Pacquiao, Saul Alvarez, Miguel Cotto, and Julio Cesar

Chavez Jr.

At any given time, there are no more than a handful of these

boxing mega stars, but they drive boxing in a way that is simply impossible

for individuals in other sports, partly due to the highly dramatic, one-on-

one nature of boxing fights.

For this reason, Home Box Office (“HBO”), the largest boxing

television network in the United States, allocates over $60 million per year

to its boxing budget alone—a huge amount for a television network.

But

these investments can be quite profitable. As of 2012, Mayweather, in nine

pay-per-view fights, had generated 9.6 million buys and $543 million in

television revenue alone.

De La Hoya totaled $696 million in his nineteen

pay-per-view fights,

a figure so impressive it has been marked in the

Guinness Book of Records.

The price of a pay-per-view fight has

increased in recent years, with some fights costing up to $65, plus an

additional $10 for high-definition.

Some of Mayweather’s recent fights

have even been shown in select theatres around the country.

Additionally,

48. Fried, supra note 43, at 99–103.

49. Id. at 95.

50. Andrew Eisele, Top Pay Per View Events in Boxing History: Oscar De La Hoya Really Is the

Golden Boy, ABOUT.COM, http://boxing.about.com/od/history/a/payperview.htm (last visited Dec. 24,

2013).

51. Chris Mannix, Has Andre Ward Earned the Right to Get a Big Payday for a Tuneup Fight?,

SPORTS ILLUSTRATED (Aug. 26, 2013), http://mma-boxing.si.com/2013/08/26/andre-ward-hbo-boxing-

next-fight/.

52. Jake Emen, The Economics of Boxing: How Do Pay-Per-Views, Ticket Sales and Fighter

Demands Balance Out in the Boxing World?, YAHOO! VOICES (Sept. 24, 2008),

http://voices.yahoo.com/the-economics-boxing-1952013.html?cat=3.

53. Dan Rafael, Floyd Mayweather Does $94M in PPV, ESPN,

http://espn.go.com/boxing/story/_/id/7919965/floyd-mayweather-miguel-cotto-rakes-94m-ppv-sales

(last updated May 11, 2012, 4:02 PM).

54. Richard Sandomir, In Boxing, Pay-Per-View and a Fistful of Dollars, N.Y. TIMES (Dec. 11,

2008), http://www.nytimes.com/2008/12/12/sports/othersports/12sandomir.html.

55. De La Hoya Gets Guinness Record for Career PPV Sales, ABS-CBNNEWS.COM,

http://www.abs-cbnnews.com/sports/12/13/11/de-la-hoya-gets-guinness-record-career-ppv-sales (last

Dec. 13, 2011, 8:32 PM).

56. Luis Sandoval, Schaefer Confirms Mayweather-Canelo PPV Price as 64.95,

BOXINGSCENE.COM, http://www.boxingscene.com/schaefer-confirms-mayweather-canelo-ppv-price-

6495--67282 (last updated July 3, 2013).

57. Lem Satterfield, Mayweather-Guerrero to Hit Movie Theaters, THE RING (Mar. 26, 2013)

http://ringtv.craveonline.com/blog/177961-mayweather-guerrero-to-hit-movie-theaters.

344 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

these top fighters routinely generate over $10 million in live gate receipts.

Although boxing venues are generally smaller than those in baseball and

football, their gate receipts can easily match up because the ticket prices are

higher. For instance, the average price of a ticket for Pacquiao’s 2011 fight

against Juan Manuel Marquez was $1409.

Even lesser-name fighters,

with the right marketing and promotion, can draw large numbers of

viewers. In 2012 there were sixteen different bouts that each drew over a

million views.

Other indicators of the magnitude of the industry include the

individual earnings of some of these superstar boxers and the way their

fights stimulate local economies. In 2012, Mayweather and Pacquiao

placed first and second, respectively, on Forbes’s list of highest paid

athletes.

On February 19, 2013, Mayweather signed a six-fight deal worth

an estimated $250 million—the “richest individual athlete deal in all of

sports.”

Much has also been written about the economic boost of boxing

58. Scott Christ, Pacquiao vs Marquez IV Generates $10.8 Million Gate, SBNATION (Dec. 10,

2012, 8:19 PM), http://www.badlefthook.com/2012/12/10/3752876/pacquiao-vs-marquez-iv-generates-

10-8-million-gate-nevada-mgm-grand-hbo-boxing-news; Nevada’s Top 35 Boxing Largest Grossing

Gates, NEV. DEP’T BUS. & INDUSTRY, http://boxing.nv.gov/results/Top_Boxing_Gates/ (last visited

Dec. 25, 2013).

59. Greg Bishop, Pacquiao Packs an Economic Punch in Las Vegas, N.Y. TIMES (Nov. 10,

2011), http://www.nytimes.com/2011/11/11/sports/pacquiao-packs-an-economic-punch-in-las-

vegas.html?pagewanted=all&_r=2&.

60. Kevin Iole, Boxing on Cable in 2012: Lots of Fights, Lots of Viewers and Lots of Love for

Julio Cesar Chavez Jr., YAHOO! SPORTS (Dec. 21, 2012, 4:01 PM),

http://sports.yahoo.com/blogs/boxing/boxing-cable-2012-lots-fights-lots-viewers-lots-210146022--

box.html.

61. Mayweather topped the list, having earned $85 million, while Pacquiao made $62 million.

Tiger Woods was third with $59.4 million. Floyd Mayweather Tops Forbes List of Highest-Paid

Athletes, Beating Manny Pacquiao & Tiger Woods, HUFFINGTON POST,

http://www.huffingtonpost.com/2012/06/19/floyd-mayweather-jr-forbes-highest-paid-

athlete_n_1607490.html (last updated June 19, 2012, 5:29 PM) [hereinafter Forbes List]. Mayweather

is well on his way to the top spot for 2013 as well. SI: Floyd Mayweather Highest-Paid, ESPN,

http://espn.go.com/boxing/story/_/id/9277146/floyd-mayweather-jr-top-paid-us-athlete-2013-sports-

illustrated (last updated May 15, 2013, 12:10 PM). Mayweather’s projected earnings for 2013 doubled

with the record breaking results of his September 2013 fight with Alvarez, for which he made

somewhere in the neighborhood of $100 million. Dan Rafael, Mayweather Win Top-Grossing Fight,

ESPN, http://espn.go.com/boxing/story/_/id/9694996/floyd-mayweather-canelo-alvarez-top-grossing-

ppv-fight (last updated Sept. 20, 2013, 1:00 PM).

62. Mayweather Inks Record-Breaking Deal with Showtime/CBS, SHOSPORTS (Feb. 13, 2013),

http://sports.sho.com/blogs/Mayweather/deal. Alex Rodriguez’s $275 million deal with the New York

Yankees is technically the biggest contract for an athlete in sports, but that spans ten years in contrast to

the thirty months for Floyd Mayweather’s deal. Kurt Badenhausen, Floyd Mayweather Hits Jackpot

with New Showtime PPV Deal, FORBES (Feb. 20, 2013, 2:36 PM),

http://www.forbes.com/sites/kurtbadenhausen/2013/02/20/floyd-mayweather-hits-jackpot-with-new-

showtime-ppv-deal/.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 345

megafights. In fact, megafights are sometimes referred to as local

“economic stimulus plan[s].”

Aside from the contracted payments to

fighters,

promoters, and those directly involved, the economic impact of a

fight can be tremendous.

A typical Manny Pacquiao fight in Las Vegas

brings in flocks of visitors,

increases gambling revenues and hotel prices

in casinos as well as bottle service prices in nightclubs, and boosts the local

economy by injecting hundreds of millions of dollars into the city in a

single weekend.

In fact, a single Pacquiao fight generally funds the

budget of the Nevada State Athletic Commission for an entire year.

Overall, “The economic impact of a fight on a state can be huge.”

Thus,

the relative lack of attention professional boxing gets in the United States,

compared to sports like football and baseball, belies its true economic

impact.

B. THE REGULATORY FRAMEWORK

Boxing is the only major sport in the United States that lacks a

centralized organizational body.

This has been the primary source of

many of its problems.

Instead, what exists is a multibody regulatory

63. Bishop, supra note 59.

64. In such large-scale fights, it is “not unusual for top boxing stars like Manny Pacquiao to clear

eight figures a fight.” Jonathan Snowden, Mayweather vs Canelo Purse: How Golden Boy Can Afford

to Pay Floyd $41.5 Million, BLEACHER REP. (Sept. 11, 2013),

http://bleacherreport.com/articles/1768324-mayweather-vs-canelo-purse-how-golden-boy-can-afford-

to-pay-floyd-415-million (explaining the economics of boxing megafights).

65. Patrick B. Fife, Note, The National Boxing Commission Act of 2001: It’s Time for Congress

to Step into the Ring and Save the Sport of Boxing, 30 HOFSTRA L. REV. 1299, 1321 (2002).

66. Most importantly for the local casinos, there are numerous high-end gamblers attracted to

Vegas when Pacquiao fights. Bishop, supra note 59.

67. Id. Another example is retired former English champion Ricky Hatton, who would bring an

“army” of his fellow countrymen with him for his fights in Las Vegas. Id. For his 2007 fight against

Mayweather, it was estimated that 30,000 Brits made the trip across the pond to cheer Hatton on, to the

point where the MGM Grand Casino literally ran out of beer. Dan Rafael, R. Hatton on Verge of

Unretiring?, ESPN (Sept. 11, 2012, 3:37 PM), http://espn.go.com/blog/dan-rafael/post/_/id/1835/r-

hatton-on-verge-of-unretiring.

68. For the third Pacquiao-Marquez fight alone, the commission received 6 percent of the live

gate receipts, in addition to a $50,000 fee, for an estimated total of $758,000. Bishop, supra note 59.

69. J. Bradley Clair, Note, Why Federal Preemption Is Necessary to Create Uniform

Professional Boxer Safety Standards, 73 BROOK. L. REV. 1173, 1203 n.209 (2008).

70. Neiman, supra note 45, at 61.

71. Michael J. Jurek, Janitor or Savior: The Role of Congress in Professional Boxing Reform, 67

OHIO ST. L.J. 1187, 1191 (2006). Former HBO executive and current boxing promoter Lou DiBella

says that “the thought that state regulation has been adequate is preposterous. The local commissions

have been under funded, under manned and have been monuments to political patronage and soft

money.” Symposium: Boxing at the Crossroads, 11 SETON HALL J. SPORT L. 193, 214 (2001)

[hereinafter Symposium]

346 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

system that can only be described as “chaotic.”

Professional boxing in the

United States has traditionally been regulated by individual states.

Most

states have state athletic commissions

that are in charge of licensing

fighters, managers, and promoters, as well as qualifying referees and

judges.

They also impose anti-doping policies and collect fees from

fighters participating in fight cards in their jurisdiction.

One major problem with this state-regulated system is that the state

athletic commissioners often lack knowledge or experience in the field of

boxing because they are appointed by governors as political favors.

This

puts boxing commissioners in a situation in which they may be “more

concerned with pleasing the governor that put them in their position than

with enforcing the safety precautions.”

This set-up means many boxing

commissioners are incompetent, politically influenced, or simply

disinterested in their jobs. For example, the Governor of Nevada appointed

T.J. Day, a successful businessman with strong ties to the Nevada

Republican Party.

More importantly, Day had no prior experience in the

boxing industry and acknowledged that his appointment was partly a result

of his close relationship with the state’s Republican governor.

Bernard

Kerik, longtime chairman of the New York Commission, was notorious for

not even attending fights held in his own state.

Another singular feature of boxing is that there are different versions

72. Gandert & Ronisky, supra note 23, at 821.

73. Ehrlichman, supra note 1, at 424–25.

74. At least forty four states have established state athletic commissions to regulate professional

boxing activities. Scott Baglio, Note, The Muhammad Ali Boxing Reform Act: The First Jab at

Establishing Credibility in Professional Boxing, 68 FORDHAM L. REV. 2257, 2262 (2000); Symposium,

supra note 71, at 205 (“There are some states where there are no commissions.”).

75. Gandert & Ronisky, supra note 23, at 825.

76. Id. at 825, 840; Bishop, supra note 59.

77. Clair, supra note 69, at 1200; Ehrlichman, supra note 1, at 425 (quoting Senator John

McCain stating that “[a] large number of boxing commissioners wouldn’t know a boxing glove from a

catcher’s mitt.” (quoting Dustin Brown, Down for the Count?, CHRISTIAN SCI. MONITOR, Aug. 24,

2001, at 13)).

78. Clair, supra note 69, at 1200.

79. Id. at 1197.

80. Id. at 1197–98. Day defended his appointment by saying that his business expertise was

useful in handling the major financial impact of boxing on the state. Id. at 1197. This is problematic

because a state’s financial interests can often conflict with its purpose to regulate for the health and

safety of professional boxers participating in bouts within its jurisdiction. See Neiman, supra note 45, at

80. Nevada is a state where “the casino business is heavily reliant on boxing to generate traffic,” and so

this conflict of interest is quite potent. Symposium, supra note 71, at 228–29.

81. Clair, supra note 69, at 1199. Since Kerik’s resignation in 2003, the New York commission

has taken a number of steps to highlight boxer safety and familiarize itself with the complexities of

boxing regulation. Id. at 1199–200.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 347

of world championship belts. They are promulgated, most famously by the

“big four” sanctioning bodies: the WBC, WBA, IBF, and World Boxing

Organization (“WBO”).

These organizations rank the top fighters in each

weight class and recognize championship bouts, collecting a sanctioning

fee in return for these services.

They also have their own anti-doping

practices, which are far more lax than those of the state athletic

commissions.

Once the sanctioning body allows a fighter to fight for or

defend a title, the fighters can negotiate with each other to select a venue

for the fight.

Thus, for instance, if a fighter wanted to defend a WBC

championship belt in New York, he would have to submit to both the anti-

doping procedures of the New York State Athletic Commission as well as

the WBC’s separate procedures.

In contrast, most other sports have a centralized league. Football has

the NFL, basketball has the National Basketball Association (“NBA”), and

baseball has the MLB. As a result, in those leagues, there is a single,

unified drug testing procedure governing all participating athletes.

Additionally, there is a players’ union or association. This is not the case

for boxing.

If one state decides to upgrade its PED testing procedures,

this does not mean other states must follow suit or that boxers must submit

to that testing. Instead, boxers—or more likely, their promoters and

sponsors—can simply choose another state as their fight venue. As we shall

see, one consequence is that there is an incentive to implement less

stringent drug testing. This system makes it much more difficult to improve

drug testing in boxing than if there was a centralized league.

C. THE CURRENT STATE OF DRUG TESTING IN BOXING

Due to the inadequate testing and inherent flaws in the

multijurisdictional system, the current anti-doping approach in boxing has

been likened to a state of “anarchy.”

Each state commission has its own

drug testing policy, but almost all of them are out of date. Some states do

not even test for PEDs at all.

The states that do have PED testing use an

82. Starks, supra note 5.

83. Neiman, supra note 45, at 66.

84. Gandert & Ronisky, supra note 23, at 827.

85. Id. at 825.

86. For the difficulties of unionization in boxing, see Ehrlichman, supra note 1, at 449–52.

87. Gandert & Ronisky, supra note 23, at 838. Current PED testing and regulations are “simply

pathetic and do not in any way address doping in the sport.” Id. at 839.

88. Hauser, supra note 36. Hauser elaborates that “[t]here’s no uniformity with regard to

standards, degree of testing, or punishment from state to state. Testing on the day of a competition is

notoriously ineffective in the face of sophisticated drug use. But that’s the only testing that most states

utilize. Some states don’t drug test at all.” Id.

348 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

antiquated method of taking solely urine samples, and none of the states

conduct out-of-competition testing.

Most importantly, the testing is not

done randomly. Most state commissions simply do a preannounced prefight

or postfight test.

With modern PEDs, such testing is easy to circumvent.

Boxers can simply schedule their PED usage to cease a few weeks before

the fight, thereby avoiding detection by letting the remnants of the drugs

flush out of their systems.

Many of these inadequacies in testing

procedures can be attributed primarily to a lack of funding and resources.

Some procedures and policies, however, are inexplicable. For

example, even though the World Anti-Doping Agency

(“WADA”)

lowered the allowable Testosterone to Epitestosterone (“T/E”) ratio to 4:1

in 2005,

the Nevada and New York state athletic commissions, two of the

most popular boxing jurisdictions in the United States, have continued to

use a 6:1 ratio,

with no indication of updating this standard anytime

soon.

Because the average human T/E ratio is 1:1,

these state

commission testing methods allow athletes to pass PED tests despite

having almost four to six times the average human amount of testosterone

in their bodies.

Travis Tygart, Chief Executive Officer of USADA,

89. Montoya, supra note 27. This is important because many modern PEDs, such as human

growth hormone, can only be detected by blood tests. Heiles, supra note 25, at 333.

90. For example, the Nevada State Athletic Commission, if it decides to test at all, “can only test

fighters before or immediately after fights.” Gandert & Ronisky, supra note 23, at 826.

91. For example, the blood boosting drug erythropoietin (“EPO”) will clear an athlete’s system

less than twenty-four hours after being injected into his veins. Joaquin M. Henson, Let’s Rid Boxing of

Suspicion, PHILSTAR.COM, http://www.philstar.com/sports/2012-12-19/887623/lets-rid-boxing-

suspicion (last updated Dec. 19, 2012, 12:00 AM). This method is called “cycling.” Hauser, supra note

36.

92. About VADA, VADA, http://vada-testing.org/about (last visited Dec. 27, 2013).

93. WADA is a worldwide anti-doping organization that seeks to ensure a doping-free sports

community on the national and international levels, advocating for a “harmonized, coordinated and

effective anti-doping program.” While it does not test professional boxers, it has established the World

Anti-Doping Code, which is widely recognized in sports around the world and has been adopted by the

International Olympic Committee. WORLD ANTI-DOPING AGENCY, WORLD ANTI-DOPING CODE 11

(2009), available at http://www.usada.org/uploads/testing/wada%20code.pdf.

94. Montoya, supra note 18.

95. Id.

96. Gabriel Montoya, New York, Nevada, and the 6:1 T/E Ratio Problem in Boxing,

MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-news/new-york-nevada-and-the-61-

te-ratio-problem-in-boxing- (last visited Dec. 27, 2013). This is an especially serious problem when

“the root of the performance enhancing drug (PED) problem in boxing these days is the use of synthetic

testosterone.” Stephen Edwards, Exclusive Interview: Journalist Gabe Montoya Investigates the Drug

Testing Process, BOXINGTALK (June 5, 2012), http://boxingtalk.com/pag/article.php?aid=23521.

97. Montoya, supra note 18.

98. It is quite simple for athletes to manipulate the amount of synthetic testosterone put into their

bodies to come in just under the threshold of these current testing procedures. For example, “if the

athlete is not being screened using Carbon Isotope Ratio testing, he can use testosterone and test at 1:1

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 349

admitted that beating the drug test in Nevada, widely considered to have

“one of the best drug-testing programs in the country,” was as easy as

“walking across the street.”

In sum, as Dick Pound, the founder of

WADA, aptly described the situation, failing a drug test under these

circumstances is like failing an IQ test.

100

In addition to the outdated testing procedures of the state athletic

commissions, there is a more fundamental structural problem in this state-

run system. That is, because each state has its own rules on licensing,

medical safety standards, and PED testing, there is an incentive for each

state athletic commission to relax its standards to draw more fights, in

effect creating a “race to the bottom.”

101

This has been a longstanding

problem in boxing, as exemplified by the infamous Mike Tyson vs. Lennox

Lewis fight in 2002.

102

In that case, a few states refused to grant Tyson a

license due to his violent and criminal conduct. However, other state

commissions “lined up to host the fight, eager to capitalize on what could

have been significant revenue for their local economies.”

103

In the end,

Tyson was licensed and fought in Tennessee, where the heavyweight bout

grossed over $100 million.

104

But with the explosion of the PED issue onto

the boxing scene, this race-to-the-bottom problem has found an application

not just in medical licensing, but also in forum shopping for states with less

stringent drug testing.

105

It would be naïve to say that the poor state of drug testing by state

athletic commissions is due solely to lack of funds, although that is

or 3.9:1 or in Nevada 5.9:1 and he will not be flagged or caught.” Id.

99. Hauser, supra note 36. Nevertheless, these outdated procedures will, on occasion, detect

illegal PED usage. In February 2013, unbeaten lightweight Mickey Bey tested at an incredible 30:1

ratio, which was “the second-highest ratio the Nevada State Athletic Commission had ever seen, five

times higher than the commission maximum of 6:1, and more than seven times the World Anti-Doping

Agency maximum of 4:1.” David P. Greisman, Fighting Words: Bey PED Case: Skepticism, Shades of

Gray, BOXINGSCENE.COM, http://www.boxingscene.com/fighting-words-bey-ped-case-skepticism-

shades-gray--63929 (last updated Apr. 1, 2013).

100. Montoya, supra note 96.

101. The race to the bottom in boxing exists because “each state is incentivized to set forth the

most lax regulations possible in order to attract promoters and bouts.” Ehrlichman, supra note 1, at 425.

102. McCain & Nahigian, supra note 2, at 27.

103. Id.

104. Ehrlichman, supra note 1, at 425–26.

105. Journalists and critics are beginning to understand the import of PED testing run by the state

commissions when “the commissions themselves have a vested interest in seeing these events through.”

Kim, supra note 16. Indeed, PED regulations have an effect on attracting fights in the first place. The

state commissions are “financially motivated to regulate doping leniently, because lenient policies will

entice the better performing doping fighters to arrange fights in their state.” Gandert & Ronisky, supra

note 23, at 840.

350 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

certainly one factor.

106

But more funding alone would not solve the

problem because of the underlying incentive structure. Unlike team sports,

if a boxer tests positive, there is no teammate or substitute; the fight cannot

go on without him. If the bout is canceled, then nobody—not the fighters,

promoters, sanctioning bodies, TV networks, or state athletic

commissions—gets paid.

107

This can result in upwards of tens of millions

of dollars in lost revenue.

108

Thus the states have an incentive to implement

lax testing policies and be lenient in its enforcement, both in order to attract

fights in their state and to ensure that the planned fight goes through.

109

One example of this can be found in the 2010 welterweight

championship fight between Manny Pacquiao and Antonio Margarito.

Margarito, a former champion, had been suspended by the California State

Athletic Commission for inserting plaster of Paris into his handwraps,

110

but the Texas commission granted him a license without even holding a

hearing.

111

Aside from the obvious ethical and procedural concerns, it must

be noted that the Pacquiao-Margarito fight was only made after Pacquiao’s

negotiated fight with Mayweather fell through. Mayweather had demanded

that Pacquiao undergo more stringent drug testing than the state athletic

commissions required.

112

Pacquiao refused, and went on to fight his next

106. See Loretta Hunt, Voluntary Drug Testing Elicits Varied Responses from Fighters, SPORTS

ILLUSTRATED, http://sportsillustrated.cnn.com/2012/writers/loretta_hunt/10/31/vada/index.html (last

updated Nov. 1, 2012, 6:46 PM) (discussing various reasons for the poor state of drug testing in boxing,

including budget restraints and athlete resistance to additional testing).

107. See George Willis, Boxing Needs Random Drug Testing, N.Y. POST (May 12, 2012, 7:00

AM), http://www.nypost.com/p/sports/boxing/boxing_needs_random_drug_testing_

1QTt7oQHAeHmDlLYb5xANP (discussing how the cancellation of a fight between Lamont Peterson

and Amir Khan cost promoters millions of dollars).

108. Hauser, supra note 36.

109. When huge sums of money are potentially coming into a state, “it must be hard for state

regulators to remain objective when deciding whether or not to allow a fight to take place.” Clair, supra

note 69, at 1176. There is one instance in which a member of the Nevada State Athletic Commission,

Dr. Edwin Homansky, noted a discrepancy on a fighter’s medical record and was subsequently removed

from his position. Id. at 1195. “This suggests that the Nevada State Athletic Commission wants to

generate as much money as possible from the fights within the state without spending the money and

time required to properly protect the fighters.” Id.

110. Sulfur and calcium were placed in Margarito’s handwraps. Combined with oxygen, this

combination forms plaster of Paris. Tests Show Plaster of Paris Ingredients, ESPN,

http://sports.espn.go.com/sports/boxing/news/story?id=4020190 (last updated Mar. 27, 2009, 6:00 PM).

In this case, the sulfur and calcium would come into contact with water in the form of sweat, thus

hardening the handwraps as the fight goes on. George Ogier, Cotto vs Margarito: A Loaded Question,

MIRROR SPORT (Dec. 2, 2011, 9:51 AM), http://www.mirror.co.uk/sport/boxing/cotto-vs-margarito-a-

loaded-question-771297.

111. John Larios, Promoting the Safety of Knockout Kings: Maintaining Administrative Hearings

in the Texas Department of Licensing and Regulation, 13 TEX. TECH. ADMIN. L.J. 141, 142 (2011).

112. Dan Rafael, Arum: ‘The Fight’s Off,’ ESPN,

http://sports.espn.go.com/sports/boxing/news/story?id=4803490 (last updated Jan. 7, 2010, 1:36 PM).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 351

two opponents, Joshua Clottey and Margarito, in Texas, which at the time

did not require any drug testing at all.

113

Given that the projected revenue

of the fight was in the tens of millions of dollars, the boxing officials in

Texas eagerly welcomed the chance to host such a lucrative fight.

114

Although there is no concrete evidence that Pacquiao has ever used PEDs,

this sequence of events demonstrates how easy it is for fighters fearing a

positive drug test to choose a venue with looser drug testing standards.

115

It is true that some clean fighters, wishing to be protected against PED

users, may seek better drug testing.

116

However, the system works against

the well-meaning boxer here. First, as explained, the state athletic

commissions have a financial incentive to use inferior testing practices,

which cost less and are less likely to lead to canceled fights. This same

motivation drives the actions of the promoters and networks, who have an

even bigger financial stake in the outcome of the fight. Unlike the state

athletic commissions, promoters are private, for-profit entities who assume

the financial risk for each bout.

117

Boxers may not get paid by the promoter

if a fight gets called off, but the promoter will lose all the expenses it has

incurred in negotiating, staging, and marketing the fight.

118

Notably, they

do not owe any sort of fiduciary duty to the boxer;

119

in fact, promoters’

financial interests are in direct conflict with the boxers’.

120

Since

promoters, and to a lesser extent, the networks, place their financial

113. Mark Zeigler, Debacle Beginning of Change in Boxing’s Drug Culture?, THE RING (Jan. 22,

2010), http://ringtv.craveonline.com/blog/122789-debacle-beginning-of-change-in-boxings-drug-

culture.

114. See Larios, supra note 111, at 156–57 (examining the Texas licensing commission’s

procedures and suggesting that a potential fight’s profitability might overshadow health and safety

concerns).

115. Even after Texas eventually implemented drug testing in 2011, it committed “one of the

biggest title fight blunders in memory” by forgetting to test the selected fighters on the entire card;

moreover, Julio Cesar Chavez, Jr., the main attraction of the fight card, had previously failed a drug test

in Nevada. Gabriel Montoya, Texas Stumbles into the Drug Testing Era, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/texas-stumbles-into-the-drug-testing-era (last

visited Dec. 27, 2013).

116. In addition to Mayweather, Nonito Donaire recently released a statement that he too would

require all his opponents to undergo stricter drug testing. Donaire’s Statement Regarding Rigondeaux

Bout, MAXBOXING.COM, http://maxboxing.com/news/other-boxing-news/donaires-statement-regarding-

rigondeaux-bout (last visited Dec. 27, 2013). But most fighters do not have the bargaining power to

unilaterally impose such terms.

117. Neiman, supra note 45, at 65.

118. These costs, which can include cultivating relationships with the media, network executives,

and sanctioning organizations, can be quite substantial. Id. at 65–66.

119. Ehrlichman, supra note 1, at 423.

120. Because the promoter incurs almost all the expenses for a bout, whatever remaining revenue

generated is kept by the promoter as profit. “Thus, in order to maximize profit, a promoter must

minimize the purse paid to a fight’s participants.” Id.

352 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

interests over the boxer’s health, only a handful of famous boxers have the

influence to negotiate fight terms that their promoters disagree with.

121

Moreover, the costs of extra drug testing may force fighters to decline such

testing to which they would otherwise be willing to submit.

122

More significantly, most professional boxers do not have the financial

leverage to make better testing actually happen, even if they are clean and

do demand it.

123

Even Mayweather, the highest earning athlete of 2012,

124

was unable to get his opponent, Pacquiao, to agree to independent drug

testing because Pacquiao insisted that Mayweather did not have the

authority to do so.

125

Moreover, in many cases, the lack of effective testing

and the increasing use of PEDs among boxers put pressure on boxers who

would otherwise prefer to avoid PEDs but may feel that using PEDs are the

only way they can level the playing field.

126

Given these circumstances, it

is futile to depend on well-intentioned individual boxers to effect

improvement in PED testing, with so many forces working against them.

Inadequate PED testing has far darker implications in boxing than in

other sports. PED users in boxing are not hitting a ball farther or cycling

faster.

127

They are inflicting more damage to their opponents’ bodies and

heads in the form of blunt force trauma.

128

Boxing is already a dangerous

sport, and the lack of proper PED regulation is literally putting even more

121. Promoters, for a number of reasons, are often able to wield significant influence over boxers,

to the point of contractual exploitation. McCain & Nahigian, supra note 2, at 25.

122. Email from Tim Starks, boxing writer and Congressional Quarterly reporter, to Jonathan Koh

(Mar. 1, 2013, 2:21 PM) (on file with author).

123. Although marketable boxers at the top of the sport can earn millions of dollars per fight, most

boxers have very small fight purses, earning “as little as $400 a fight.” Neiman, supra note 45, at 64.

124. Michael McKnight, The 50 Highest-Earning American Athletes, SPORTS ILLUSTRATED,

sportsillustrated.cnn.com/specials/fortunate50-2012/ (last visited Dec. 27, 2013).

125. See Tim Smith, Blame Manny Pacquiao for Torpedoing Fight with Floyd Mayweather,

NYDAILYNEWS.COM (Jan. 12, 2010, 12:33 AM), http://www.nydailynews.com/sports/more-

sports/blame-manny-pacquiao-torpedoing-fight-floyd-mayweather-article-1.462223 (noting that

Pacquiao would not agree to “Olympic style drug testing” demanded by Mayweather).

126. Kurlantzick, supra note 8, at 791.

127. “In other sports, you use PEDs, you run faster, you hit a baseball further, in boxing, you hit

somebody in the head harder, and there’s a big difference. And I think that is a potential crisis for

boxing, once we become more aware of that.” Telephone Interview with Thomas Hauser, boxing writer

(Feb. 7, 2013) (on file with author) [hereinafter Hauser Interview].

128. Hall of Fame trainer Emanuel Steward has singled out PED use in boxing as being

particularly dangerous:

Boxing isn’t like other sports . . . . In boxing, a human being is getting hit in the

head. . . . So to my way of thinking, anyone in boxing who’s part of using performance-

enhancing drugs—I don’t care if it’s the fighter, the trainer, the strength coach, the

conditioner, the manager, the promoter—that person is ruining the sport and doing something

criminal.

Hauser, supra note 36 (internal quotation marks omitted).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 353

lives at risk. Many critics agree that the state athletic commissions are not

only “woefully unsuited” to improve the drug testing procedures but are

simply incapable of doing so.

129

As noted boxing writer Thomas Hauser

describes it, “Illegal PED users vs. the state athletic commissions is one of

the biggest mismatches of all time.”

130

Some fear that putting better drug

testing in the hands of the commissions is tantamount to waiting for the

“Doomsday Scenario. . . . a ring death coupled with the survivor testing

positive for a banned substance.”

131

D. THE LACK OF ENFORCEMENT

Another major problem with PED usage in boxing is that in the event

that boxers are actually caught using illegal substances, the consequences

they face are minimal at best. As mentioned above, a number of elite

fighters tested positive for PEDs in 2012, and most of these positive tests

were conducted by independent anti-doping agencies. But even though

these agencies utilize more advanced PED testing methods, the state

athletic commissions either gave the fighters a mere slap on the wrist or

refused to recognize the test results at all.

132

To have done otherwise might

have driven PED-using fighters and their fight revenues away from the

state. Some states, like Nevada, do not even have official guidelines on

disciplining fighters who test positive.

133

To review, Berto had his license suspended for a few months before

getting relicensed for a huge payday.

134

Morales tested positive in two

129. Id. It has also been observed that “[a]s the testosterone issue has flared up, we are seeing

more signs of athletic commissions making decisions based on finances & compromise.” Zach Arnold,

A Crash Course on Testosterone, Hypgonadism, and Doping, BOXINGINSIDER (May 10, 2012),

http://www.boxinginsider.com/columns/a-crash-course-on-testosterone-hypgonadism-and-doping/.

130. Hauser, supra note 36.

131. Gabriel Montoya, Boxing’s PED Problem: Where Do We Go from Here?, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/boxings-ped-problem-where-do-we-go-from-here-

(last visited Dec. 27, 2013).

132. Hauser, supra note 36.

133. Gandert & Ronisky, supra note 23, at 826. The lack of clear guidelines can be seen in the

inconsistent disciplining meted out by the Nevada State Athletic Commission in the past. Id. For

example, on February 28, 2013, the Commission announced that Chavez Jr. was suspended for nine

months and fined a whopping $900,000 (30 percent of his fight purse) after testing positive for

marijuana use. This was an absurd amount for a nonperformance-enhancing drug, considering the

previous highest fine for doping in Nevada history was only $100,000 for Fernando Vargas, who

actually tested positive for steroids. Dan Rafael, Julio Cesar Chavez Jr. Fined $900K, ESPN,

http://espn.go.com/boxing/story/_/id/8999557/julio-cesar-chavez-jr-suspended-fined-nevada-state-

athletic-commission-failed-drug-test (last updated Mar. 1, 2013, 3:57 PM). In contrast, Bey, a boxer

with relatively little drawing power, was fined $1000 and suspended for three months for his

outrageously high 30:1 testosterone to epitestosterone ratio. Greisman, supra note 99.

134. Rafael, supra note 34.

354 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

separate tests, was still allowed to fight, and never faced any sanctions

from the New York State Athletic Commission afterwards.

135

Former light

heavyweight champion Antonio Tarver tested positive for the anabolic

steroid Drostanolone after his fight with Lateef Kayode in June 2012, and

at least in that instance the result of the fight was retroactively changed to a

“no-contest.”

136

Tarver was also suspended for a year in California, and

fined $2500.

137

But that is a paltry amount considering his million-dollar

fight purse and the fact that Tarver was over forty years old and unlikely to

fight much longer anyway.

138

Even fighters who are suspended in one jurisdiction can easily go to

another state to fight. Lamont Peterson proved this when he decided to

defend his championship title in his hometown of Washington, D.C., and

knocked out Kendall Holt in the eighth round on February 22, 2013.

139

the meantime, his license was still pending in Nevada following a test

result showing that he had used synthetic testosterone just eight months

earlier.

140

These situations arise because state commissions are under no

obligation to honor other states’ suspensions.

141

If a fighter is never caught

with a positive drug test but instead is revealed to have used PEDs by some

other means, it is highly unlikely that he will face any reprimand. This was

true of the aforementioned case of Gamboa as well as Shane Mosley in

2003, who was involved in the BALCO scandal and even testified before a

135. Hauser, supra note 30. Almost six months after the positive drug tests, seemingly due to

media backlash, USADA did finally issue a controversial two-year ban that was panned by boxing

writers as meaningless because of USADA’s lack of authority to prevent boxers from fighting in any

jurisdiction as well as Morales’s intention to retire. Dan Rafael, Erik Morales Gets Two-Year Ban,

ESPN, http://espn.go.com/boxing/story/_/id/9095985/united-states-anti-doping-agency-bans-erik-

morales-two-years-failed-tests (last updated Mar. 25, 2013, 12:33 PM).

136. Id.

137. Gabriel Montoya, A Long and Twisted Drug Testing Road for Boxing, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/a-long-and-twisted-drug-testing-road-for-boxing

(last visited Dec. 27, 2013).

138. Id.

139. See Lamont Peterson Stops Kendall Holt, ESPN,

http://espn.go.com/boxing/story/_/id/8977015/lamont-peterson-stops-kendall-holt-8th-defend-ibf-crown

(last updated Feb. 26, 2013, 9:14 PM) (discussing Peterson’s fight against Holt in Washington, D.C.,

despite having had his title stripped after testing positive for drugs fourteen months earlier).

140. Montoya, Peterson Comes Back, supra note 32.

141. There are exceptions, but because reciprocity is only required where suspensions are for

medical reasons, fighters like Lamont Peterson are able to exploit such loopholes. McCain & Nahigian,

supra note 2, at 19; Tim Starks, Scrutinizing Lamont Peterson (and the Rest) over PEDs,

QUEENSBERRY RULES (Feb. 21, 2013), http://www.queensberry-rules.com/2013-

articles/february/scrutinizing-lamont-peterson-and-the-rest.html.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 355

grand jury without being suspended for one day or fined a single cent.

142

The combination of this low probability of detection and the lack of

punishment means that there is very little to deter boxers from using PEDs.

E. A COMPARISON TO OTHER SPORTS

This regulatory model is in stark contrast to other professional sports.

For example, in the four major American professional team sports—

baseball, basketball, football, and hockey—there is a single centralized

league that regulates the teams, approves the matches, and governs many

other aspects of the sport.

143

These independent governing bodies, which

also exist for certain individual sports such as golf and tennis, provide for a

uniform set of regulations and enforcement by imposing fines, bans, and

suspensions.

144

These rules must be followed, and punishment must be

accepted, if one is to participate in these leagues.

145

Thus sports with a

single governing entity, unlike boxing, have a viable enforcement

mechanism.

The question may be (and in fact has been) raised, whether such sports

leagues may constitute a monopoly.

146

While this issue is outside the scope

of this Note, some of its implications are relevant to our discussion. It is

reasonable to assume that such single, private league structures may exhibit

monopolistic effects. That is, if the NBA chose not to upgrade its drug

testing policy, it can make such a decision without influence from the

“invisible hand” of the free market. One would think, on the other hand,

with such a variety of state athletic commissions and sanctioning bodies in

boxing, there would be increased competition and therefore more efficient

regulation.

147

One might presume that boxers have their own incentive to

choose the safest and best-regulated states, forcing the other state

commissions to update their testing and regulatory policies in order to

attract lucrative fights.

Clearly, this does not actually happen. Instead, as explained before,

the opposite effect occurs—there is a race to the bottom

148

because the state

athletic commissions are “afflicted with conflicts of interest, which

142. Iole, supra note 41.

143. Baglio, supra note 74, at 2264–65.

144. Id. at 2265.

145. Id.

146. Joseph P. Bauer, Antitrust and Sports: Must Competition on the Field Displace Competition

in the Marketplace?, 60 TENN. L. REV. 263, 267 (1993).

147. For a simple explanation of how competitive markets generally lead to efficiency, see A.

MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 105–06 (3d ed. 2003).

148. See supra Part II.C.

356 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

impedes the development of viable and effective rules.”

149

Specifically,

states are motivated to regulate doping more leniently so that PED users

will choose to fight there, creating significant revenues for the local

economy.

150

Another problem with the multistate regulatory system becomes clear

when we examine the evolution of PED testing in other sports. In baseball,

the cloud of PED suspicions led some to regard the numerous record-

setting achievements in “the entire 1990s as a statistical lie, claiming there

is no way to tell who was taking PEDs and who was not.”

151

Nevertheless,

despite widespread criticism of suspected PED use among baseball players,

the MLB did not adopt drug testing for steroids until 2002.

152

Even then,

this drug testing policy was seen as inadequate due to its prescheduled

testing and lenient penalties.

153

Since MLB was effectively a monopoly, there were no competitive

pressures from other leagues. Players had no alternatives to which they

could turn. With the outbreak of the BALCO scandal, public scrutiny

reached a point where Congress had to take an active step. It thus held a

number of “highly publicized hearings” and introduced several bills to

impose stricter PED testing.

154

These bills were only withdrawn once the

MLB and the Major League Baseball Players’ Association (“MLBPA”)

came to an agreement over tougher drug testing.

155

In recent times, baseball has continually upgraded its testing

procedures, and the MLB has come a long way since Congress first

addressed this steroids issue. As recently as January 2013, it approved in-

season randomized HGH testing—a big step forward in modernizing its

drug testing policy.

156

This exerted pressure on the NFL, whose officials

were summoned to Congressional hearings in December 2012 to explain

149. Gandert & Ronisky, supra note 23, at 840.

150. Id. See also supra Part II.C.

151. Lee A. Linderman, Note, A Congressional Carve Out: The Necessity for Uniform

Application of Professional Sports Leagues’ Performance-Enhancing Drug Policies, 84 S. CAL. L. REV.

751, 752 (2011).

152. Joseph M. Saka, Note, Back to the Game: How Congress Can Help Sports Leagues Shift the

Focus from Steroids to Sports, 23 J. CONTEMP. HEALTH L. & POL’Y 341, 350 (2007).

153. Id. at 350–51.

154. Whitman, supra note 26, at 464.

155. Saka, supra note 152, at 355. Even this new drug testing policy was “not as tough as MLB

had hoped.” Id.

156. See Bill Shaikin, Baseball to Have In-Season HGH Testing, L.A. TIMES (Jan. 10, 2013),

http://articles.latimes.com/2013/jan/10/sports/la-sp-0111-baseball-hgh-testing-20130111 (discussing the

MLB’s adoption of randomized in-season steroids testing).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 357

why the NFL had not adopted similar HGH testing procedures.

157

But

Congress has not addressed the PED issue in boxing, where it is uncertain

whether mere threats of federal intervention would be sufficient to spur

better drug testing, as it did in baseball. This is because, unlike the other

major professional American sports, there is not a single authoritative

boxing league or entity that can adequately react in response to such a

threat.

III. FEDERAL REGULATION OF BOXING

A. HISTORY OF FEDERAL INTERVENTION

The State of New York began regulating professional boxing in 1896.

Since then, boxing in the United States has remained almost exclusively

under the purview of state regulation.

158

Over time, more uniform

regulations were put in place and more laws were passed, usually in

response to boxing-related incidents or scandals.

1. Early Boxing Legislation

Informal regulation of boxing began in Great Britain in 1743, after a

fighter was tragically killed by his opponent. In response, Broughton’s

Rules were created, codified, and recognized as the definitive, if unofficial,

set of rules for early prizefighting.

159

This was eventually replaced by the

Marquis of Queensberry Rules in 1867 following “a public outcry that

boxing was too violent,” which would go on to form the basis of modern

universal boxing rules.

160

These rules prohibited biting, kicking, and hitting

opponents while they were down, required the use of padded gloves, and

implemented rounds of set duration.

161

In the United States, the first

substantive federal intervention did not occur until the late 1950s.

162

This

came in the form of the Kefauver hearings and the Senate Select

Committee, which investigated the interstate activities of organized crime

in boxing.

163

Congress again revisited the topic of boxing reform in the

1970s, but despite introducing a series of boxing reform bills in the next

157. Id.

158. Ehrlichman, supra note 1, at 424–25.

159. McCain & Nahigian, supra note 2, at 9.

160. Id.

161. Ian Forman, Note, Boxing in the Legal Arena, 3 SPORTS LAW. J. 75, 76 (1996).

162. Neiman, supra note 45, at 74 (“The federal government’s first intervention into professional

boxing did not occur until the 1950s when the Department of Justice (DOJ) began to investigate the

activities of organized crime within the sport.”).

163. Symposium, supra note 71, at 219.

358 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

few decades, nothing meaningful was passed until the 1990s.

164

2. A Period of Successful Boxing Reform

In 1996, Congress passed the Professional Boxing Safety Act

(“PBSA”).

165

This marked the “first major federal legislative involvement

in the professional boxing industry”

166

and was the beginning of significant

improvement in boxing reform.

167

Its stated purpose is “to assist State

boxing commissions to provide proper oversight for the professional

boxing industry in the United States.”

168

Passed in part due to significant

boxer safety concerns,

169

the PBSA raises safety standards “by requiring

certain minimum safety measures for all professional boxing matches” held

in the United States.

170

This focus on fighter safety includes requiring

certain ringside medical assistance, requiring all fighters to have an

identification card from their state boxing commission, and prohibiting

fighters suspended for medical reasons in one state from participating in

bouts held in other states.

171

In 2000, Congress passed another boxing reform bill into law, the

Muhammad Ali Boxing Reform Act (“Ali Act”).

172

This time, the

legislation targeted the unethical business practices rampant in the sport.

173

The Ali Act attempts to eliminate coercive and unethical contracts between

boxers and promoters, eradicate rankings manipulation, and circumvent

forum shopping among states.

174

The primary method by which the Act

seeks to achieve these goals is through information disclosure

requirements.

175

Although the PBSA and the Ali Act do represent an

164. See McCain & Nahigian, supra note 2, at 14–15 (“Time and again . . . these proposals failed

to garner sufficient support for passage.”). At least some of these bills failed to pass “because of

congressional inaction and outside opposition.” Neiman, supra note 45, at 77.

165. Even the initial version of the PBSA was rejected and was passed only on the second

attempt. Neiman, supra note 45, at 77.

166. McCain & Nahigian, supra note 2, at 20.

167. Symposium, supra note 71, at 213.

168. Professional Boxing Safety Act, 15 U.S.C. § 6302(2) (2012).

169. McCain & Nahigian, supra note 2, at 18.

170. Clair, supra note 69, at 1177.

171. McCain & Nahigian, supra note 2, at 19.

172. Neiman, supra note 45, at 77. The Ali Act is also referred to as “MABRA.”

173. McCain & Nahigian, supra note 2, at 20. See also Erlichman, supra note 1, at 421 (“While

the PBSA was aimed at protecting boxers within the ring, the Ali Act was intended ‘to protect the rights

and welfare of professional boxers . . . by preventing certain exploitative, oppressive, and unethical

business practices’ outside the ring.” (ellipses in original) (quoting 15 U.S.C. § 6302(1))).

174. Ehrlichman, supra note 1, at 426.

175. See McCain & Nahigian supra note 2, at 21 (listing the Ali Act’s disclosure requirements as

one of the key provisions of the Act). The Ali Act specifically gives the Association of Boxing

Commissions (“ABC”) the authority to develop recommended rankings guidelines for the sanctioning

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 359

important step in the long process of boxing reform, they address only the

symptoms, “not . . . the cause of the sport’s ailments.”

176

Thus, many

recognized that further steps needed to be taken.

177

3. Deficiencies in the PBSA and Ali Act

One major characteristic of the PBSA and the Ali Act is their great

deference to state authorities while aiming to reform boxing by providing

the states “with more effective and stronger enforcement authority to

safeguard the well-being of boxers.”

178

Yet there remained considerable

loopholes and deficiencies in these attempts. For one thing, the vague

statutory language of the Acts did not resolve the wide variance in safety

standards enacted from state to state. This has allowed the problem of lack

of uniform standards to persist across the country.

179

Additionally, enforcement was ultimately left up to the states, which

have remained reluctant to punish fighters and drive away boxing revenue

from their state.

180

Indeed, the timidity of the Ali Act is evident by the fact

that many of its rules are permissive rather than mandatory.

181

The

deference of the statutory language did more than just create a loophole—it

effectively rendered many of its provisions mere guidelines rather than

compulsory law.

182

Of course, with local financial interests in mind, state

athletic commissions would hardly rush to adopt these suggestions.

183

As a

organizations and requires the sanctioning organizations to fully disclose its rankings criteria and other

policies to the Federal Trade Commission and to the ABC. Damon Moore, Down for the Count: Is

McCain’s Bill the One to Lift Boxing Off the Canvas?, 4 VA. SPORTS & ENT. L.J. 198, 217 (2005). It

also requires boxing promoters to disclose the terms of its contracts and bouts to the appropriate state

organization. Id.

176. McCain & Nahigian, supra note 2, at 22. Hauser likens the effectiveness of the passage of

the Ali Act to “putting a band-aid on a gaping wound that’s badly in need of sutures.” THOMAS

HAUSER, A YEAR AT THE FIGHTS 209 (2003).

177. Neiman, supra note 45, at 60.

178. McCain & Nahigian, supra note 2, at 18.

179. Fife, supra note 65, at 1308 (“[S]tates have different standards for defining what it means to

be ‘physically fit to safely compete.’” (quoting 15 U.S.C. § 6304(1) (2012))).

180. Jurek, supra note 71, at 1202; Clair, supra note 69, at 1200 (“The major problem with the

PBAA is that it . . . effectively leaves the enforcement of its provisions in the hands of the state

commissions . . . .”).

181. Devin J. Burstein, The Muhammad Ali Boxing Reform Act: Its Problems and Remedies,

Including the Possibility of a United States Boxing Administration, 21 CARDOZO ARTS & ENT. L.J. 433,

446 (2003) (“Although Congress suggests that State boxing commissions follow these rules, it does not

make compliance mandatory.”).

182. One example can be found in the section of the Ali Act that grants the ABC power to

approve minimum contractual provisions for bout agreements and boxing contracts: “It is the sense of

the Congress that State boxing commissions should follow these ABC guidelines.” 15 U.S.C. § 6307a

(2012).

183. See supra Part II.C.

360 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

result, the effect of the Ali Act has been likened to “requiring firefighters to

drive their truck to a burning house, but not take any steps to put out the

flames they encounter.”

184

One initially promising aspect of the Ali Act was that it provides for

both public and private rights of action in federal court.

185

Thus, even if the

states were lethargic in enforcing the Act, individual boxers could bring

lawsuits against those who violated the provisions of the Act.

Unfortunately, “By any objective criterion, the Ali Act is not being

enforced, either through federal or state actors, or through private

actions.”

186

To date, the Justice Department, the primary enforcer of the

Act, has not brought a single indictment for a violation of any Ali Act

provision.

187

This has important consequences for the health and safety of

boxers.

188

Enforcement at the state level has been just as nonexistent, partly

due to a lack of resources.

189

The fact that there has not been a single

prosecution for an Ali Act violation, however, must not be interpreted as

evidence that the Act has been effective. On the contrary, there have been

numerous instances of alleged violations.

190

It is worrisome that the number of private civil suits actually brought

for violations of the Ali Act has been laughably small.

191

One major reason

is that most fighters are unaware of the Ali Act’s very existence, let alone

the rights it provides them.

192

Even boxers who understand the Ali Act and

wish to assert those rights may not be able to bring a lawsuit due to the

high costs of litigation.

193

Indeed, each of the few Ali Act claims were

184. Ehrlichman, supra note 1, at 437.

185. Id. at 438.

186. Id. at 439.

187. Id. One likely reason for this lack of enforcement from the Department of Justice (“DOJ”) is

that these violations are misdemeanors, which reasonably receive less attention from the DOJ; as a

result, some argue that such violations should be designated as felonies instead. Neiman, supra note 45,

at 96.

188. Clair, supra note 69, at 1173.

189. See supra Part II.C.

190. “According to Tim Lueckenhoff, president of the ABC, his organization frequently alerts the

Justice Department to violations of the Ali Act, yet gets no help whatsoever from U.S. Attorneys around

the country.” Ehrlichman, supra, note 1, at 439 (citations omitted) (internal quotation marks omitted).

191. It is joked that “the number of boxers who have brought suit [under the Act] could all fit

comfortably within an eighteen square foot ring.” Id. at 438.

192. Id. at 440. One suggestion to alleviate this problem of lack of information is to require the

dissemination and posting of the Act’s relevant provisions in boxing gyms, similar to OHSA

regulations; another possibility is to affix the short, eight-page Ali Act to all boxing contracts. Id. at

442–43.

193. It is unrealistic to expect fighters who earn “as little as $200–$400 per fight” to sustain the

considerable litigation costs of bringing an Ali claim. Id. at 441 (quoting Jurek, supra note 71, at 1192)

(internal quotation marks omitted).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 361

brought by boxers who were bona fide stars with the necessary financial

wherewithal to bring a suit in the first place.

194

As is true with many

athletes, boxers are unlikely to pursue litigation even if they can afford it,

because “litigation of any duration can be devastating to boxers because of

the brevity of their careers and their need to stay active in order to maintain

or advance their rankings.”

195

In fact, of over a hundred lawsuits brought

against promoter Don King, all but two were dropped due to lack of

funds—the other two settled—illustrating the dire nature of this problem.

196

Some critics have proposed implementing an arbitration or dispute

resolution system like in other sports, but thus far, no action has been

taken.

197

One of the foremost impediments is the lack of a players’ union or

association, unlike most other professional sports, and so boxing has no

built-in alternative dispute resolution system.

198

Overall, while these statutes do provide some modest federal oversight

of the boxing industry, “they do not significantly remedy the problem of

state commissions failing to develop and enforce safety standards because

of their reliance on these same commissions.”

199

Although this can be

understood by Congress’s unwillingness to preempt the states’ police

power,

200

the truth remains that the PBSA and the Ali Act have ultimately

proved lacking in their desired effect.

201

4. Recent Legislative Attempts

Senator John McCain, the architect and driving force behind both the

PBSA and the Ali Act,

202

understood these deficiencies

203

and, along with

194. Id. at 441.

195. Id. at 429. Felix Trinidad, a superstar welterweight champion in the 1990s, dropped his

contract claim against promoter Don King in order that he not “waste the prime of his career fighting in

court.” Baglio, supra note 74, at 2274.

196. Ehrlichman, supra note 1, at 441. There is a separate deterrent to litigation—that “[t]he

litigious boxer must . . . face the prospect of being blacklisted by the ‘promoters and sanctioning bodies

[who] control any and all fighting opportunities.’” Id. at 440 (alteration in original) (quoting Burstein,

supra note 181, at 461–62). This is no small concern in a sport where a handful of promoters rule the

roost.

197. Nevada has an arbitration system for boxing that could be useful as a blueprint for a nation-

wide model. Fife, supra note 65, at 1325.

198. Id. at 1323.

199. Clair, supra note 69, at 1178.

200. Ehrlichman, supra note 1, at 438.

201. Clair, supra note 69, at 1186–87.

202. Arlin R. Crisco, Note, Fighting Outside the Ring: A Labor Alternative to the Continued

Federal Regulation of Professional Boxing, 60 OHIO ST. L.J. 1139, 1159, 1163 (1999).

203. Part of the reason that these Acts ended up relatively toothless was not necessarily because

McCain and the Acts’ backers did not foresee these weaknesses, but that in order for the Acts to get

passed, repeated compromises were made, and “[they] kept getting cut back and cut back and

362 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

others, has called for further federal regulation of boxing.

204

In 2002,

McCain introduced a piece of legislation entitled the Professional Boxing

Amendments Act (“PBAA”).

205

The primary difference between the PBAA

and previous federal legislation is that it would create a federal regulatory

body, called the United States Boxing Administration (“USBA”), “to

protect the health, safety, and general interests of boxers.”

206

In a sharp

break from its previous continual deference to the state commissions, the

USBA would be in charge of granting, revoking, and suspending licenses,

and would establish nationwide uniform standards.

207

This proposal would

not eliminate the need for state athletic commissions, which would still run

the day-to-day operations in their local jurisdictions.

208

Although the PBAA has been criticized by some for not going far

enough,

209

it would represent a significant improvement in the way boxing

is currently regulated

210

and would establish more effective safety

standards for professional boxers.

211

Yet it seems that current boxing

reform is again stuck in a similar stage to reform attempts in the 1980s and

early 1990s, as different variations of the PBAA bill, usually brought out in

the wake of some boxing controversy or scandal, have repeatedly failed to

pass.

212

Yet McCain’s persistence has not been deterred.

213

As recently as

compromised to the point where [they were ] pretty weak.” Hauser Interview, supra note 127.

204. McCain & Nahigian, supra note 2, at 24. See also Neiman, supra note 45, at 78 (noting

McCain’s emphasis on increased federal regulation of boxing).

205. Professional Boxing Amendments Act of 2002, S. 2550, 107th Cong. (2002). This new piece

of legislation was likely spurred by the blatant forum shopping and circumvention that took place for

the Tyson-Lewis fight described in Part II.C of this Note. See Royce Feour, Reid, Ratner Reiterate Need

for Boxing Regulation, LAS VEGAS REV. J., May 25, 2002, at 8C (discussing the U.S. Senate’s hearing

about boxing two weeks before the Tyson-Lewis fight).

206. McCain & Nahigian, supra note 2, at 30.

207. Id. at 30–31.

208. Id. at 31.

209. See generally Clair, supra note 69 (arguing that due to several loopholes in the PBAA, many

boxing matches have presumed approval, and the only way to provide proper oversight of boxing is for

Congress to take a role in actively overseeing it).

210. Ehrlichman, supra note 1, at 444 (“The PBAA, through the creation of the USBA, directly

addresses and mitigates many of the shortcomings and oversights of the Ali Act.”).

211. Jurek, supra note 71, at 1205–06.

212. Tim Starks, Sen. John McCain, Senate Majority Leader Harry Reid Introduce Federal

Boxing Commission Legislation, QUEENSBERRY RULES (June 18, 2012), http://www.queensberry-

rules.com/2012-articles/june/sen-john-mccain-senate-majority-leader-harry-reid-introduce-federal-

boxing-commission-legislation.html. As Ehrlichman wryly notes, “Congress has knocked [the PBAA]

down more times than Jack Dempsey floored Jess Willard.” Erlichman, supra note 1, at 456. However,

in 2005, McCain almost succeeded when the bill was approved by the Senate but defeated in the House.

Amol Sharma & Matthew Futterman, McCain Champions Boxing Regulations in Lonely Fight, WALL

ST. J., http://online.wsj.com/news/articles/SB122418182528041339 (last updated Oct. 16, 2008, 11:38

PM).

213. McCain’s “passion for this issue has at times annoyed colleagues on both sides of the aisle,

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 363

June 2012, McCain reintroduced a new version of the PBAA in the Senate

after Timothy Bradley won a highly controversial split decision over

Manny Pacquiao.

214

However, since the new version was referred to the

Committee on Commerce, Science, and Transportation, no further action

has been taken.

215

One of the fundamental problems with the PBAA is that “the

prospects of the bill being enacted seem slight.”

216

Indeed, many of the

problems holding up the passage of boxing reform bills in the past ten years

will likely reappear in any future congressional attempt to improve PED

testing in boxing. Some members of Congress oppose the bill because they

do not believe that the federal government ought to preempt the state’s

authority in regulating boxing.

217

Others are just ideologically opposed to

bigger government.

218

Another legitimate concern is that the creation of a regulatory body

such as the USBA would add an unnecessary burden on the Congressional

budget.

219

The concern that it would constitute “government waste” is a

valid one, given the Congressional Budget Office’s report that funding the

USBA would cost $34 million over five years, averaging out to $6.8

million per year.

220

With the economy weak and national debt at an all-time

high,

221

spending money to reform boxing may seem like “government

waste.”

Finally, the fact that the current powers in boxing are very

who felt he was pushing too hard” when he attempted to hold up the adjournment of Congress with this

pending bill. Sharma & Futterman, supra note 212.

214. Professional Boxing Amendments Act of 2012, S. 3306, 112th Cong. (2012); Press Release,

John McCain, Senator, U.S. Senate, Statement by Senator John McCain Introducing the Professional

Boxing Amendments Act of 2012 (June 18, 2012),

http://www.mccain.senate.gov/public/index.cfm/press-releases?ID=016c8721-fc0d-1dc8-7bf8-

2b54818d7496.

215. S. 3306 (112th): Professional Boxing Amendments Act of 2012, GOVTRACK.US

http://www.govtrack.us/congress/bills/112/s3306# (last visited Dec. 29. 2013).

216. Ehrlichman, supra note 1, at 448.

217. Even in 2001, it was stated that “the major outlook in Congress is that this is an issue for the

states to address.” Symposium, supra note 71, at 210.

218. Hauser Interview, supra note 127.

219. According to Pablo Chavez, Chief Counsel for Senator McCain, there were two main groups

that opposed the 2002 version of the PBAA: many Republicans who “believed $5 million per year for a

boxing commission was too much money to spend,” and the Democrats who were “influenced by the

boxing industry.” Neiman, supra note 45, at 92.

220. Moore, supra note 175, at 226–27.

221. Bret Baier, The Cost of Spending: National Debt Nears ‘Dangerous Level,’ FOX NEWS (Dec.

18, 2012), http://www.foxnews.com/politics/2012/12/18/cost-spending-national-debt-nears-dangerous-

level/.

364 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

comfortable with the status quo and would strongly resist any change may

be the most significant obstacle to meaningful boxing reform.

222

It has been

well documented that powerful promoters have hired lobbyists to oppose

boxing reform bills in the past.

223

State officials would also resist having

their power stripped, and thus the prominent state athletic commissions

would likely stir up political opposition to the passage of such bills.

224

fact, in 2012, several organizations representing the television networks

and sanctioning bodies had registered to lobby against the most recent

version of the PBAA.

225

B. THE CONSTITUTIONALITY OF CONGRESSIONAL REGULATION OF PED

USAGE IN BOXING

Since the advent of federal regulation of boxing, there have been

accompanying constitutional concerns. Because there has been no previous

attempt at Congressional regulation of PED usage specifically in boxing,

this Note analogizes to cases and analyses involving federal regulation of

PED testing in other sports, as well as Congressional regulation for general

health and safety standards in boxing as found in the PBSA and the Ali

Act. The two major constitutional hurdles at issue are the Tenth

Amendment and the Fourth Amendment, which must be considered when

proposing or analyzing future boxing regulation, specifically with respect

to PED testing.

1. Tenth Amendment

The power to regulate boxing has traditionally been reserved to the

states, and the Tenth Amendment seems to support this.

226

However, there

is little doubt that Congress can use its Commerce Power

227

to regulate

222. Ehrlichman, supra note 1, at 449.

223. See Symposium, supra note 71, at 221 (alleging that promoter Don King gave “$50,000.00 in

soft money” to one senator to block the bill).

224. Id. at 232 (“[T]he state officials from New York, Tennessee, Nevada, Florida, all of them, are

going to go visit their senators and say, you know what, don’t vote for this. We don’t want that

authority taken away from us.”). See also Sharma & Futterman, supra note 212 (explaining that

members of state boxing commissions “are almost universally opposed to federal oversight”).

225. These organizations are the National Cable & Telecommunications Association, the WBA,

and the IBF. Clients Lobbying on S.3306: Professional Boxing Amendments Act of 2012,

OPENSECRETS.ORG, http://www.opensecrets.org/lobby/billsum.php?id=s3306-112 (last visited Dec. 29,

2013) [hereinafter Clients Lobbying on S.3306].

226. The Tenth Amendment reads: “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.”

U.S. CONST. amend. X.

227. Congress’s Commerce Power is an enumerated power granted by the United States

Constitution for Congress to “regulate Commerce . . . among the several States.” U.S. CONST. art. I, § 8,

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 365

interstate commerce.

228

In 1955, the Supreme Court ruled that Congress

could regulate professional boxing under the Commerce Clause, and

subsequent federal legislation of boxing has faced no constitutional

challenges.

229

It is important to note, though, that future federal intervention of a

more substantive nature, such as that proposed in the PBAA and certainly

in some proposals by other scholars, must be carefully tailored. In Printz v.

United States, the Supreme Court reinforced the anti-commandeering

principle inherent in the Tenth Amendment, holding that the federal

government cannot commandeer or “impress [state officers] into its

service.”

230

Thus, Congress cannot force the state athletic commissions to

carry out and enforce rules and regulations that apply only on a federal

level.

231

The federal government must either use federal agents for this

purpose, or Congress may use its spending power to make federal oversight

a requirement to receive federal funding. For example, in South Dakota v.

Dole, the Supreme Court upheld a federal condition that withheld 5 percent

of federal highway funds from states that did not establish a minimum

drinking age of twenty-one years.

232

2. Fourth Amendment

An even more problematic issue is the Fourth Amendment,

233

which

protects individuals against “unreasonable searches and seizures.”

234

This

has been a significant barrier to federal legislation requiring random,

unannounced drug testing in other sports.

235

The collection of urine or

cl. 3.

228. See generally Gonzales v. Raich, 545 U.S. 1 (2005) (discussing Congress’s power to regulate

interstate commerce).

229. United States v. Int’l Boxing Club of N.Y., Inc., 348 U.S. 236 (1955). See also McCain &

Nahigian, supra note 2, at 12 (“[W]hile a boxing match is an intrastate affair, professional boxing

revenues are derived largely from interstate broadcasts and endorsements and promoters also use the

channels of interstate commerce to negotiate contracts, lease arenas, and maintain training quarters.”

(footnote omitted)).

230. Printz v. United States, 521 U.S. 898, 922 (1997).

231. Clair, supra note 69, at 1205–06.

232. South Dakota v. Dole, 483 U.S. 203, 210–12 (1987).

233. See Heiles, supra note 25, at 346 (“Although other constitutional challenges may exist, the

main concern surrounding legislation that would subject the MLB Program to testing regulations is that

drug testing would constitute an unreasonable search and seizure under the Fourth Amendment.”

(footnotes omitted)).

234. U.S. CONST. amend. IV.

235. See Matthew J. Mitten, Drug Testing of Athletes—An Internal, Not External, Matter, 40 NEW

ENG. L. REV. 797, 805–06 (2006) (discussing constitutional barriers to federal legislation in other

sports).

366 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

blood samples on a random basis would constitute a search.

236

Therefore,

Congress must show reasonableness, which usually translates into probable

cause.

237

This reasonableness requirement applies only when such testing is

attributable to the government

238

—not as problematic in other sports as it is

in boxing, a state-regulated sport.

239

However, the judicially created “special needs doctrine” provides a

way around this stumbling block. The special needs doctrine allows for a

warrantless search if there is a compelling government interest beyond the

ordinary needs of law enforcement.

240

Alternatively, the special needs

doctrine can apply where the persons that are tested have a diminished

expectation of privacy.

241

Finally, the Supreme Court has upheld the

constitutionality of mandatory drug testing among high-school athletes “to

protect their health and safety.”

242

Since health and safety in boxing is a

much bigger concern than in other sports

243

and has been a priority in

boxing reform,

244

it would seem, by analogy, that federally mandated PED

testing in boxing would be constitutional.

IV. POSSIBLE SOLUTIONS

While Congress has previously intervened in PED testing and

regulation in other sports,

245

no such attempt has been made for the sport of

boxing.

246

However, there have been a number of federal boxing reform

236. Tiffany D. Lipscomb, Note, Can Congress Squeeze the “Juice” out of Professional Sports?

The Constitutionality of Congressional Intervention into Professional Sports’ Steroid Controversy, 69

OHIO ST. L.J. 303, 322–23 (2008).

237. Id.

238. Blaine V. Roche, Note, Congressional Involvement in Professional Sports’ Drug-Testing

Policies: Get Involved but Don’t Infringe, 4 PHOENIX L. REV. 489, 502 (2010).

239. Other professional athletes “lack the ability to sue on constitutional grounds regarding the

drug-testing policies of their respective sport because the current drug-testing policies are created

through the collective bargaining process and are not implemented by government action.” Id. at 503.

This is not the case in boxing, where drug testing is carried out by state athletic commissions, and no

boxers’ union exists as a buffer. See Ehrlichman, supra note 1, 449–52.

240. Roche, supra note 238, at 504.

241. See Bd. of Educ. v. Earls, 536 U.S. 822, 829–38 (2002) (finding that students involved in

nonathletic extracurricular activities have a diminished expectation of privacy); Vernonia Sch. Dist. 47J

v. Acton, 515 U.S. 646, 656–57 (1995) (holding that student athletes have a diminished expectation of

privacy).

242. Mitten, supra note 235, at 805. See also Vernonia Sch. Dist., 515 U.S. at 665.

243. Kevin McRae, Nonito Donaire and Why Boxing Needs to Adopt VADA Drug Testing

Immediately, BLEACHER REP. (Dec. 17, 2012), http://bleacherreport.com/articles/1446135-nonito-

donaire-and-why-boxing-needs-to-adopt-vada-drug-testing-immediately (“In boxing, the extra power or

speed of a punch can end a career or even a life.”).

244. See, e.g., Neiman, supra note 45, at 96–97.

245. See supra Part II.E.

246. Christian Red, Dr. Margaret Goodman Leads Effort to Clean Up Boxing, MMA,

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 367

bills introduced in the last decade and a half, with varying degrees of

success.

247

But in light of recent events, it is apparent that any serious

boxing reform will have to address and indeed focus on this explosive new

PED issue. This Note first looks at past suggestions on how to better

regulate boxing and examines whether these suggestions can be applied to

the PED problem. Concluding that the existing proposals are inadequate or

unworkable, this Note then suggests amending the PBAA to explicitly

include PED regulation and explains why that is the best solution.

A. EXISTING PROPOSALS

Due to concerns about the health of its participants, some have

advocated completely banning professional boxing as a sport or, at the

least, banning hits to the head.

248

Others suggest simply legalizing PED

usage in boxing.

249

However, even if these are low-cost means of

regulation and easy to implement, disallowing hits to the head or

completely banning boxing would almost entirely eliminate the value of

boxing

250

and therefore would be quite unrealistic.

251

If boxers were not

allowed to hit each other in the head—changing an essential rule that has

been in place since the very inception of boxing over a hundred years

ago—many fans would simply stop watching.

252

This would greatly

decrease revenues, to the point where boxing would hardly be viable as a

professional sport. Legalizing PEDs is not as extreme, but again, it would

undermine the integrity of the sport in the eyes of many fans and repel fan-

based and corporate sponsorship, so that the benefits of the sport would be

NYDAILYNEWS.COM, http://www.nydailynews.com/sports/i-team/dr-margaret-goodman-leads-effort-

clean-boxing-mma-article-1.999301 (last updated Jan. 1, 2012, 5:47 PM) (“When Congress held

hearings on baseball and PEDs in March, 2005 and later in 2008, as well as a 2008 hearing on doping in

thoroughbred horse racing, Goodman viewed it as further evidence that politicians were getting tough

on steroid use in certain sports, but not boxing.”).

247. See supra Part III.A.

248. See generally Antoinette Vacca, Boxing: Why It Should Be Down for the Count, 13 SPORTS

LAW. J. 207 (2006) (arguing that it is in the public interest to at least ban head hits in boxing).

249. Gareth A. Davies, David Price’s Opponent, American Heavyweight Tony Thompson,

Believes Doping in Sport Should Be Legalised, TELEGRAPH (Feb. 21, 2013, 12:00 PM),

http://www.telegraph.co.uk/sport/othersports/boxing/9885175/David-Prices-opponent-American-

heavyweight-Tony-Thompson-believes-doping-in-sport-should-be-legalised.html. See also Nigel

Collins, Rethinking Boxing’s PED Conundrum, ESPN,

http://espn.go.com/boxing/story/_/id/9128066/rethinking-boxing-peds-problem-solutions (last updated

Apr. 3, 2012, 3:37 PM) (arguing that legalizing PEDs in boxing would better serve the sport than

current regulatory solutions).

250. Neiman, supra note 45, at 83–86.

251. Id.

252. Id. at 89.

368 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

wiped out.

253

Clearly, these are not the best solutions.

Since the root of many of boxing’s problems, including its PED

troubles, is found in the piecemeal state regulation system, one attractive

proposition is to switch to a single league model like baseball, basketball,

or even mixed martial arts.

254

Just like the MLB, a centralized authority

would be able to effectively implement not only better drug testing, but

also stricter safety requirements, successful enforcement mechanisms, and

other badly needed regulations. One suggestion has been to model such a

league after the Professional Golfers’ Association.

255

Such a scheme would

“obviate the perils of patchwork state regulation . . . without raising the

specter of an intrusive and overreaching federal regulatory scheme.”

256

However, while the results of privatization of boxing regulation are

appealing, it is unworkable in practice.

257

Aside from the potential Sherman

Act antitrust concerns for those creating a new league in any professional

sport,

258

the biggest flaw is that it would leave no room for the promoters

and sanctioning organizations, who are currently the most powerful figures

in boxing.

259

Because they have no incentive to change over to a system in

which they would have to relinquish their power and influence, the

promoters, managers, state boxing commissions, and sanctioning bodies

would never consent to such a drastic alternative.

260

Therefore, although

privatization is “the change most likely to provide real, lasting protection

for boxers, it is also the change that is least likely to occur.”

261

The only

possible way to privatize boxing would be for Congress to step in and

forcibly hand control over to an independent league entity, and while some

253. One can look to professional baseball as an example, where rampant PED use was ignored

for years, eventually tarnishing the image and reputation of the sport, which took years to rehabilitate.

Hauser, supra note 36.

254. Email from Tim Starks, boxing writer and Congressional Quarterly reporter, to Jonathan Koh

(Feb. 25, 2013, 11:31 PM) (on file with author).

255. Ehrlichman, supra note 1, at 453.

256. Id. at 454.

257. The privatization of boxing is highly unlikely to work because “boxing does not lend itself to

a single, private-league structure.” Neiman, supra note 45, at 91.

258. See Karen Jordan, Forming a Single Entity: A Recipe for Success for New Professional

Sports Leagues, 3 VAND. J. ENT. L. & PRAC. 235, 236–41 (2001) (discussing the antitrust issues facing

all major professional sports leagues).

259. Burstein, supra note 181, at 495–96.

260. Ehrlichman, supra note 1, at 455.

261. Id. Ehrlichman points out that as much as the interest groups have been wielding their

influence to oppose boxing reform legislation, they would do everything in their power to prevent

privatization, for “a private governing boxing organization would be far more disruptive to those who

control boxing than the PBAA could ever hope to be.” Id.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 369

have wishfully called for this,

262

such unprecedented and intrusive

government intervention would be in every way improbable.

Another possible solution is soft regulation. Some have endorsed

extensive information disclosure as a feasible approach, using “blue sky”

state securities regulation

263

or Sarbanes-Oxley

264

as a blueprint for PED

regulation. For instance, rather than banning and testing for certain

substances, all boxers would instead just disclose all the substances they

ingest or intake.

265

However, a similar approach was taken with the Ali Act

in 2000, which required sanctioning bodies and promoters to disclose

various types of information to boxers and state boxing commissions,

266

and has proven to be ineffective.

267

The problem remains that information

is disclosed to the state commissions, who lack the motivation to enact

sufficient sanctions. This systemic lack of enforcement on the part of the

state commissions and the individual boxers, in such a discordant

regulation scheme, means that soft regulation would still lack teeth because

there is no central regulatory body to which the information could be

effectively disclosed.

268

Furthermore, such regulation would not actually

prevent PED usage as boxers would basically only be liable for fraud. This

might lead to more substance use, along with its consequent health effects

and negative externalities.

269

For those concerned with overly extensive federal regulation, one

method could be to simply mandate minimum standards for the state

athletic commissions to follow. With respect to drug testing, Congress

could establish certain policies and procedures for each individual state

commission to incorporate, similar to the way WADA sets standards for

drug-testing agencies around the world. This would be less costly and at the

same time effect a uniform standard throughout the country.

The hitch in this model is that not all states have boxing commissions.

Moreover, as time passes, these federally mandated standards would

262. Fife, supra note 65, at 1327.

263. Geoffrey Rapp, Blue Sky Steroids, 99 J. CRIM. L. & CRIMINOLOGY 599, 614–18 (2009).

264. Sarah R. Heisler, Note, Steroid Regulation in Professional Sports: Sarbanes-Oxley as a

Guide, 27 CARDOZO ARTS & ENT. L.J. 199, 225 (2009).

265. Rapp, supra note 263, at 602.

266. Professional Boxing Safety Act, 15 U.S.C. §§ 6307c–6307f (2012).

267. See supra Part II.B–.D.

268. Heisler recommends having Congress “require team owners and managers to design,

implement, and maintain internal testing procedures and related controls to ensure their athletes are not

using []PEDs.” Heisler, supra note 264, at 225. But this would not work for boxing because boxers are

not employees of the promoters; rather, they are independent contractors. Yet again we see how

proposed solutions for other sports are simply unworkable in boxing because of its unique structure.

269. Rapp, supra note 263, at 617. See also infra text accompanying notes 344–47.

370 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

become obsolete if there was no central regulatory body continually

reviewing and updating the policies. Finally, the biggest problem is that

there would again likely be no enforcement of the standards. Similar to the

PBSA and the Ali Act suggesting guidelines for the states to follow, these

standards would simply be ignored. Any attempt on the part of the federal

government to make the state athletic commissions enforce the federal

standards would clearly be in violation of the Tenth Amendment. Of

course, Congress could offer federal funds conditional on such

enforcement, but this would be quite expensive. Some states might even

choose not to accept the federal money if they felt that by continuing

lenient doping regulations, they could attract larger fight revenues than the

funding offered by the federal government.

B. AMENDING THE PBAA TO ADDRESS THE PED ISSUE

This Note seeks regulation of PEDs in boxing in a manner that would

be cost-efficient as well as legally constitutional and politically viable. The

only way to do this is to create a federal commission or central regulatory

agency directly overseeing and regulating boxing activities in the United

States, such as the USBA in the proposed PBAA. This would be especially

effective in achieving better PED testing. In light of the growing

importance of PED usage in professional boxing, this Note proposes that

the PBAA be amended to include PED regulation and that the USBA

become the federal regulatory body that would, among its other

responsibilities, regulate PED testing in professional boxing.

Of course, given the current state of boxing, the USBA requires some

changes from the proposed 2012 version. First, since the stated purpose of

every boxing reform bill has been to protect the health and safety of boxers,

there should be a medical advisory board to the USBA to establish and

update medical guidelines for professional fighters. This should include at

least one member who is experienced in anti-doping procedures. Also, the

legislative language should explicitly include uniform drug testing

procedures under the USBA’s purview. Having anti-doping experts in

charge of creating and updating these drug testing procedures would be a

significant improvement over the many current state commissions that do

not have anyone clearly responsible for these procedures.

270

Testing would

no longer vary state-by-state or according to individual fighters’ demands.

The USBA would set up-to-date uniform testing procedures for all

270. Nevada State Athletic Commission Executive Director Keith Kizer, when asked, was unsure

of who was responsible for creating the drug testing policy for the commission, making reference only

to a non-WADA accredited laboratory. Montoya, supra note 96.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 371

professional bouts in the United States.

In actually carrying out these drug testing procedures, the USBA

would have two options: use independent testing agencies currently

available like USADA and VADA, or create its own federal drug testing

agency as a part of the USBA. The latter option seems unnecessarily costly

when compared to simply designating an independent anti-doping agency

to carry out the USBA-approved testing procedures. Some of the most up-

to-date testing is done by these agencies already,

271

so the USBA could

simply oversee their activities rather than start from scratch.

There have been many recent concerns about the independence of

some of these “independent” drug testing agencies, especially in the wake

of the Morales scandal.

272

One reason behind the alleged close

relationships of some promoters and anti-doping agencies is that currently,

boxing promoters are the ones hiring these agencies.

273

Thus, even as

nonprofit organizations, these agencies are incentivized to make the terms

of their testing and reporting policies more attractive to promoters. These

are the same promoters who do not want to see their fights canceled due to

positive testing.

274

This is one likely explanation for the difference in the

way that USADA tests Olympic athletes and the way it tests professional

boxers.

275

But allowing the USBA to choose the independent agencies in

271. Telephone Interview with Ryan Connolly, General Counsel for VADA (Feb. 25, 2013) (on

file with author).

272. Gabriel Montoya, Lessons from Boxing’s PED Files, MAXBOXING.COM,

http://maxboxing.com/news/sub-lead/lessons-from-boxings-ped-files (last visited Dec. 29, 2013).

Another issue has been the extent of these individual anti-doping agencies’ jurisdiction. When USADA

did not disclose the positive test results of Morales to the New York State Athletic Commission in a

timely manner, it was roundly criticized. Months later, USADA issued its own punishment, claiming to

ban Morales for two years. However, many questioned USADA’s authority to do so. Letter from

Patrick C. English, Attorney, Dines and English, L.L.C., to Travis Tygart, CEO of USADA (Feb. 12,

2013), available at http://www.doghouseboxing.com/Media/LettertoTravisTygart.pdf; Lem Satterfield,

Morales Faces USADA Ban, but from What?, THE RING (Feb. 12, 2013),

http://ringtv.craveonline.com/blog/177195-morales-faces-usada-ban-but-from-what.

273. “Golden Boy, in a rather bizarre offshoot of the ‘Cold War,’ is strictly affiliated with

USADA while Top Rank seems to be wed exclusively to VADA testing.” Steve Kim, The Stigma: Part

One (with Lamont Peterson), MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-

news/the-stigma-part-one-with-lamont-peterson (last visited Dec. 29, 2013).

274. Hauser Interview, supra note 127. This is a legitimate concern, as USADA, for at least two

separate fights, took samples from fighters according to their signed agreements, but later unilaterally

canceled the testing without releasing the test results, raising suspicions of foul play. See Gabriel

Montoya, Broner vs. DeMarco and the Contracted USADA Testing That Didn’t Happen,

MAXBOXING.COM, http://www.maxboxing.com/news/max-boxing-news/broner-vs-demarco-and-the-

contracted-usada-testing-that-didnt-happen (last visited Dec. 29, 2013).

275. This is potentially a serious concern, as it stands, because USADA tests U.S. Olympic

athletes and also receives federal funding of about $10 million per year. U.S. ANTI-DOPING AGENCY,

2011 ANNUAL REPORT 45 (2011).

372 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

charge of carrying out the testing would eliminate this conflict of interest

because the USBA would be worried about boxer safety instead of its

bottom line. In turn, the drug testing agencies would not need to soften

their PED testing or alter their reporting procedures, because whichever

agency was chosen by the USBA would not be hired based on its results or

on a fight-by-fight basis.

276

Importantly, having the USBA in charge would mean that PED testing

could finally be properly enforced. There would be one centralized

authority in charge of all major boxing fights, thereby removing the

incentives that currently allow fighters to evade detection. Since under the

current PBAA proposal, the USBA licenses all professional fighters,

professional boxing licenses could be made conditional upon an agreement

to be randomly drug tested at any time. Even the threat of this would be

more of a deterrent to PED use than the present system.

277

In addition to mandatory testing, harsher penalties could be imposed

ex post. With so many fighters testing positive and not even receiving a

slap on the wrist, lengthy suspensions and draconian monetary fines would

make fighters think twice before using PEDs. Rational boxers look at the

expected value of cheating as a function of the probability of getting caught

multiplied by the cost of getting caught.

278

Better drug testing would

increase the probability of a PED-using athlete testing positive, but

increasing the cost of positive tests would be just as effective, and much

cheaper.

For example, Olympic standards operate under a strict liability rule—

if an athlete is found with illegal substances in his or her body, a two year

suspension is handed down.

279

In the case of a second offense, the

punishment is a lifetime ban.

280

Likewise, in professional boxing, the

USBA could make a fighter give up 50 percent of his fight purse and

suspend him from fighting in the United States for at least two years in the

276. If this approach is taken, however, it would be prudent to select just one anti-doping agency.

The confusion and lack of transparency that can accompany multiple competing private testing agencies

was illustrated in the build-up to the Pacquiao-Rios fight, where it was unclear for a time whether

VADA or USADA would be overseeing the testing. Tim Starks, Quick Jabs: Carl Froch and HBO

Ratings; Manny Pacquiao and the Mauled Captain; More, QUEENSBERRY RULES (May 27, 2013),

http://www.queensberry-rules.com/2013-articles/may/quick-jabs-carl-froch-and-hbo-ratings-manny-

pacquiao-and-the-mauled-captain-more.html.

277. Hauser Interview, supra note 127.

278. Kim, supra note 16.

279. Andy Dolich, Sports Drug Testing Policies: NFL, NBA, NHL, Olympics,

CSNBAYAREA.COM (Jan. 9, 2013, 1:15 PM), http://www.csnbayarea.com/blog/biz-ball/sports-drug-

testing-policies-nfl-nba-nhl-olympics.

280. Id.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 373

event of a confirmed positive test result.

281

Compared to better PED

testing, this would be a more cost-effective method of deterring PED use

among pugilists. The USBA’s penalties would actually be enforced and

could be raised up to a level at which boxers, when deciding whether to use

PEDs, would internalize more of the externalities associated with using

PEDs.

282

V. ADDRESSING POTENTIAL CONCERNS

At first glance, many of the problems that have plagued past boxing

reform efforts, specifically the PBAA, may still be at issue. However, the

onslaught of PED scandals over the past year has significantly changed the

boxing landscape and increased the probability of passing legislative

countermeasures. While the traditional longstanding obstacles to federal

boxing legislation are formidable, they are not insurmountable. In fact, in

his most recent introduction of the PBAA bill, Senator McCain addressed

many of these concerns.

283

This part looks at each of these problems and

explains how a version of the PBAA, amended to include PED regulation,

can answer these objections.

A. COST CONCERNS

1. The Costs of Establishing the USBA and Better PED Testing

One of the biggest reasons that prior boxing-related legislation has

failed in the past has been the worries about the financial burden it would

create. As noted before, the previous iterations of the PBAA that created a

centralized regulatory body in the USBA have been estimated to cost just

under $7 million per year.

284

While this is not an insignificant amount, it is

a drop in the bucket when compared to some other federal agencies’

budgets.

285

Outside of the costs of establishing the USBA, there are also the direct

costs of carrying out better drug testing. Almost all of the high-profile

281. Boxing writer Steve Kim suggests a similar “three strikes” version of this penalty scheme.

Kim, supra note 273.

282. See infra Part V.A.2.

283. Starks, supra note 212.

284. Moore, supra note 175, at 226–27.

285. Federal regulatory spending has increased rapidly over the years, hitting a peak of $59.1

billion in 2012, an 8.6 percent increase from 2011. However, the budget estimate for 2012 is projected

to decrease slightly. SUSAN DUDLEY & MELINDA WARREN, GROWTH IN REGULATORS’ BUDGET

SLOWED BY FISCAL STALEMATE: AN ANALYSIS OF THE U.S. BUDGET FOR FISCAL YEARS 2012 AND

2013, at 1 (2012), available at http://wc.wustl.edu/files/wc/imce/2013regreport.pdf.

374 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

fighters caught in 2012 for PED use were tested by one of two independent

organizations—VADA and USADA. Although drug testing by state

athletic commissions is ineffective, there are considerable costs associated

with the better drug testing employed by these independent agencies.

286

For

two fighters to be tested for an eight to twelve week training camp,

USADA charges roughly $100,000,

287

while VADA’s testing program

costs fighters about $3,000–$10,000.

288

However, VADA has the more up-

to-date testing and a better track record of catching fighters,

289

so the true

costs would probably be closer to VADA’s prices.

Furthermore, there are indirect costs that follow. Assuming a higher

rate of positive test results, one could argue that fights would be called off

on a more regular basis, causing the promoters, fighters, and television

networks to lose tens of millions of dollars.

290

This must be calculated into

the cost of implementing better drug testing. But these costs may be

overstated, because another effect of better drug testing and more stringent

enforcement is that more boxers would be deterred from using PEDs, and

thus the probability of detection and canceled fights would decrease

accordingly over time.

There would also be major costs associated not only with researching

and implementing better drug tests initially, but also with continually

updating these tests. In response, PED users and manufacturers would

come up with more advanced PEDs that are more difficult to detect.

291

This

type of “arms race” would be quite costly, but of course it would be costly

to both sides. Thus better drug testing might not completely eradicate PED

use, but it would make PED use more expensive even if there were costs to

keep the drug testing policy up to date as well.

There are also substantial transaction costs involved in determining

286. Carbon Isotope Ratio (“CIR”) testing, a new technique to detect synthetic testosterone, has

produced zero false positives to date and is responsible for catching Lamont Peterson when Kizer

admitted that the Nevada drug testing procedures would not have found anything suspicious. Brent

Brookhouse, Entire Sport of Boxing to Blame for Failures to Truly Address Positive Drug Tests, SB

NATION (Feb 13, 2013, 6:24 PM), http://www.badlefthook.com/2013/2/13/3985624/boxing-drug-test-

failures-lamont-peterson-vada-nsac-andre-berto; Montoya, supra note 18.

287. Montoya, supra note 137.

288. David P. Greisman, VADA Interview, P2: Testosterone Ratios, Costs, More,

BOXINGSCENE.COM, http://www.boxingscene.com/vada-interview-p2-testosterone-ratios-costs-more--

56450 (last updated Aug. 27, 2012).

289. Montoya, supra note 137. See also Montoya, supra note 131 (“VADA has shown the ability

to test fighters at a high level while maintaining the public trust.”).

290. Hauser, supra note 36.

291. In the last ten years since the BALCO scandal, “tests have gotten more sophisticated since

then, but so have the cheaters.” Id.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 375

the specifics of better drug testing procedures.

292

There are “significant

costs in terms of both time and money required to develop tests for

emerging PED threats. Beyond research, there are also costs associated

with obtaining and examining samples, determining appropriate

punishment, and enforcing sanctions.”

293

Once an ideal bill is drawn up,

more transaction costs are incurred in the form of negotiations with fellow

congressmen, as well as dealing with lobbyists hired by promoters and state

officials who oppose the legislation. But once again, while going through

the legislative process is costly, so is opposing it—lobbyists do not come

cheap. This cost might deter some opponents of the bill as well. It is also

important to note that there will always be transaction costs

294

—the

question is whether they are so prohibitive that they should derail the

transaction itself. In this case, these seem to be the regular transaction costs

connected to any bill that becomes law.

2. Self-Funding and Benefits Outweigh the Costs

We have seen that there are a number of costs associated with federal

legislation of better drug testing standards.

295

However, these costs are not

exorbitant. In fact, the USBA could effectively be self-funded by taxing

pay-per-view sales

296

and live gate receipts as well as collecting licensing

fees.

297

One particular proposal has been to add a one dollar “integrity in

sport fee” to pay-per-view championship fights.

298

In fact, Nevada statute

NRS 467.108 already mandates that one dollar of each ticket sold be used

for performing random drug testing.

299

The USBA, having jurisdiction over

all professional fights, could implement a similar rule and more efficiently

funnel that money to better uses, such as updated and effective drug

testing.

300

Additionally, fines received from fighters and promoters for

292. Transaction costs are divided into three categories: search costs, bargaining costs, and

enforcement costs. Whitman, supra note 26, at 473. All three are relevant to PED regulation in boxing.

293. Id. at 475 (footnote omitted).

294. DANIEL H. COLE & PETER Z. GROSSMAN, PRINCIPLES OF LAW & ECONOMICS 21 (2d ed.

2011).

295. Whitman, supra note 26, at 475 (“All told, effective PED enforcement could impose

significant overall costs.”).

296. With the huge revenues raised by pay-per-view events on a regular basis, “applying a tax of

$0.10–$1 for pay-per-view sales [alone] would help fund much of the [USBA] budget.” Moore, supra

note 175, at 227. See also Neiman, supra note 45, at 93 (suggesting that the USBA could be funded by

a tax on pay-per-view sales).

297. Moore, supra note 175, at 226–27.

298. Montoya, supra note 18.

299. NEV. REV. STAT. § 467.108 (2011); Montoya, supra note 24.

300. There is ample evidence that some of the money is spent by the Nevada commission on

things like ringside tickets to those connected with the commission as favors. Most ringside tickets cost

376 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

illegal PED use and positive tests could help offset the USBA’s operating

costs.

301

Having a self-funded USBA would eliminate any cost concerns

because Congress would not have to appropriate money from an already

tight budget for the proposed USBA.

More importantly, costs are only one aspect of the equation. Taking an

economic perspective,

302

an efficient approach to PED regulation must

weigh the marginal costs of implementing better PED testing against the

ensuing benefits.

303

That is, one must also examine the potential benefits of

the new regulation, in the form of the harms eliminated by the more

effective testing. In the past few decades, cost-benefit analysis has become

essential to the regulatory process,

304

and for good reason. Otherwise,

anything with substantial costs would be shut down. This would be like the

government choosing to outlaw driving because of the high costs of

automotive accidents, without first considering the benefits of allowing

people to drive and commute conveniently. The goal should instead be to

set a speed limit, or in our case, a type of PED testing, such that the

benefits of the regulation still exceed the costs. In other words, while it is

impossible to prevent all boxing-related injuries, we can implement

regulations that avoid unnecessary boxing injuries and deaths.

305

And the benefits of effective PED testing in boxing are indeed

sizeable. The first and arguably most substantial and direct benefit of

effective testing is the increased revenue in the long run. While some fights

may be canceled at first due to positive tests, fighters over time would use

PEDs less frequently in the face of effective deterrence. Over the long

term, this would lead to fewer canceled fights.

306

Moreover, with an

effective PED testing policy backed by the United States government, the

sport of boxing would begin to regain its integrity and, from an

hundreds if not thousands of dollars, leading to a considerable amount of lost revenue. Montoya, supra

note 24.

301. Ehrlichman, supra note 1, at 449.

302. See Whitman, supra note 26, at 464–65 (“From the perspective of law and economics, the

primary purpose of the legal system is to encourage or discourage various behaviors to achieve socially

desirable ends. For Congress to become actively involved in regulating certain conduct—here, the use

of PEDs in professional sports—it must determine that the social inefficiencies resulting from

suboptimal private decisions are so severe that they warrant government intervention.”).

303. See COLE & GROSSMAN, supra note 294, at 16 (discussing the use of cost-benefit analysis to

determine whether a policy results in a net gain for social welfare).

304. See Cass R. Sunstein, The Stunning Triumph of Cost-Benefit Analysis, BLOOMBERG (Sept.

12, 2012, 3:30 PM), http://www.bloomberg.com/news/2012-09-12/the-stunning-triumph-of-cost-

benefit-analysis.html (discussing how cost-benefit analysis has become engrained in bipartisan

policymaking).

305. McCain & Nahigian, supra note 2, at 30.

306. See supra Part V.A.1.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 377

entertainment perspective, attract more fans.

307

While some may argue for legalizing PEDs, the fact remains that the

prevalent public perception of PED use is a strongly negative one.

308

The

reaction to Armstrong’s admitted doping and the revelation of baseball

stars’ testosterone injections validates this point. Therefore the logic is

simple: “[W]hen the sport has a more negative public profile, fewer people

watch, and when fewer people watch, boxers make less money.”

309

HBO boxing commentator and expert Max Kellerman suggests, getting the

government involved to clean up the sport may lead to corporate

sponsorship flowing into the sport once again.

310

The mainstream media

that has been scared off by past boxing scandals and corruption might also

resume a stronger interest in boxing.

311

The bottom line is that problems

undermining the integrity of the sport can negatively affect its financial

performance

312

because “the economics of boxing revolves around the

public’s demand to see a fight.”

313

These economic effects are quite substantial when one recognizes that

boxing is a multibillion dollar industry that has a major financial impact on

the states

314

as well as nationwide figures such as promoters and television

networks.

315

Indeed, there have long been concerns about the adequacy of

307. Kurlantzick, supra note 8, at 794 (“A decision . . . to ban or limit the use of

steroids . . . would make sense simply as a matter of sound commercial judgment to take action to avoid

this customer alienation.”). See also Symposium, supra note 71, at 219 (“Get the government involved.

Get it cleaned up to the point where corporate money can come flowing in.”).

308. George T. Stiefel III, Comment, Hard Ball, Soft Law in MLB: Who Died and Made WADA

the Boss?, 56 BUFF. L. REV. 1225, 1264 (2008) (“The public has expressed a desire for clean sports to

watch and freedom from having to resort to the health risks of performance-enhancing drugs to

compete.”).

309. Tim Starks, The Pros of Antonio Margarito Getting a Boxing License, and the Rebuttals,

QUEENSBERRY RULES (Aug. 27, 2010), http://www.queensberry-rules.com/2010-articles/august/the-

pros-of-antonio-margarito-getting-a-boxing-license-and-the-rebuttals.html.

310. Symposium, supra note 71, at 219. Others also argue that having the USBA successfully

restore the public image of boxing would bring in corporate sponsorship and revenue that has not been

present in the sport for many years. Fife, supra note 65, at 1327–28.

311. “Years of corruption, manipulation, and scandal have tarnished the sport to the point that it is

hardly covered by the mainstream media.” Jurek, supra note 71, at 1187. “[I]f you’re a sponsor with

money, you want to put it in something safe.” Tim Starks, Boxing Back on CBS, NBC This Weekend

and Next: What it Means, What You Need to Know, QUEENSBERRY RULES (Dec. 14, 2012),

http://www.queensberry-rules.com/2012-articles/december/boxing-back-on-cbs-nbc-this-weekend-and-

next-what-it-means-what-you-need-to-know.html (quoting Kevin Monaghan, director of new business

development at NBC).

312. Fife, supra note 65, at 1321.

313. Emen, supra note 52.

314. Clair, supra note 69, at 1197.

315. For more on the economics of the boxing industry, see supra Part II.A.

378 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

the current regulation of such a lucrative sport.

316

This is further reinforced

by the fact that the two highest earning athletes in the world are boxers.

317

With so much money at stake, the loss of potential earnings due to PED use

is correspondingly huge. It is hard to overstate the negative economic

effects that a revelation of PED use can have. When it was revealed that

Lance Armstrong had used PEDs, he lost every single endorsement deal he

had,

318

costing him an estimated $150–$200 million in lost earnings.

319

contrast, when Tiger Woods, Michael Jordan, and Kobe Bryant were

caught in infidelity scandals, they were still retained by most of their

sponsors.

320

Woods’s scandal was the most costly of the three, but even

then he was still supported by half of his commercial sponsors.

321

In the

eyes of many, the key difference was that unlike Armstrong, these athletes

did not “cheat[] the spirit of fair play and competition.”

322

A superstar

boxer caught in a PED scandal could potentially have an even more

scandalous impact in the public eye, since he would not only be

diminishing the integrity of the sport by cheating, but also causing a very

real and dangerous health risk to his opponent.

323

Having the federal government step in and establish effective uniform

PED testing procedures would also eliminate the transaction costs that

boxers would have to incur in negotiating for better drug testing. Since

most boxers have begun to recognize the widespread use of PEDs, a

number of them have requested better testing for themselves and their

opponents.

324

But researching the credibility of independent anti-doping

316. Despite boxing now being a multibillion dollar industry, Pennsylvania State Athletic

Commission Executive Director Gregory Sirb laments the fact that “we run it like a five and dime

store.” Symposium, supra note 71, at 212.

317. Forbes List, supra note 61.

318. Nathan Francis, Lance Armstrong Endorsements: Cyclist Loses Final Sponsor in Oakley,

Had Previously Pledged Support for Him, INQUISITR (Oct. 22, 2012),

http://www.inquisitr.com/371825/lance-armstrong-endorsements-cyclist-loses-final-sponsor-in-oakley-

had-previously-pledged-support-for-him/.

319. Patrick Rishe, Armstrong Will Lose $150 Million in Future Earnings After Nike and Other

Sponsors Dump Him, FORBES (Oct. 18, 2012, 9:23 AM),

http://www.forbes.com/sites/prishe/2012/10/18/nike-proves-deadlier-than-cancer-as-armstrong-will-

lose-150-million-in-future-earnings/.

320. Id.

321. Francis, supra note 318.

322. Rishe, supra note 319.

323. About VADA, supra note 92.

324. Most notably, Nonito Donaire, four-division world champion and current Super

Bantamweight champion, has voluntarily undertaken year-round drug testing and more recently

released a press statement indicating that any opponent of his must undergo extra drug testing.

Donaire’s Statement Regarding Rigondeaux Bout, supra note 116. But recently, even if they desire

extra testing, many fighters have disagreed over whether to use USADA or VADA, greatly increasing

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 379

agencies and drug testing policies and negotiating drug testing terms with

opponents can be expensive for individual fighters and may not only be

impractical but also leave a lot of uncertainty as to the effectiveness of

these agencies.

325

Eliminating, or at least mitigating, these transaction costs

could have substantial economic benefits, not just because it lowers costs,

but also because it may cause some fights to happen that would otherwise

fall through. For example, the Mayweather-Pacquiao fight famously fell

apart at the negotiations stage due to a disagreement over drug testing.

326

Mayweather had demanded blood testing outside of the regular urine

testing conducted by state commissions, but Pacquiao steadfastly

refused.

327

In the end, a fight worth half a billion dollars did not take

place.

328

There are also sizable health benefits that would follow from better

PED testing and less PED use. In boxing, the perverse effects of PED use

are twofold. First, the PED-using pugilists will hit harder and cause more

physical damage to their opponents.

329

Unlike in other sports, PED usage in

boxing has serious health implications because the user is not cycling faster

or hitting a ball further—he is punching someone harder.

330

This is

these negotiation costs. Montoya, supra note 274. This current lack of certainty in testing procedures

and agencies has led to an abundance of “half-truths and distortions” in PED testing, such that fighters

and fight fans alike are left in the dark. See Tim Starks, VADA, USADA, Nevada: On Victor Conte, Juan

Manuel Marquez, Manny Pacquiao, and Other Drug Testing Questions, QUEENSBERRY RULES (Oct.

25, 2013), http://queensberry-rules.com/2013-articles/vada-usada-nevada-on-victor-conte-juan-manuel-

marquez-manny-pacquaio-and-other-drug-testing-questions.html (comparing the short history and

potential problems of VADA and USADA). The lack of complete information thus leads to substantial

search costs that could be eliminated by having a single regulatory body with no conflict of interest in

charge of such procedures.

325. Lem Satterfield, Peterson: ‘I Prefer VADA,’ THE RING (Feb. 13, 2013),

http://ringtv.craveonline.com/blog/177211-peterson-i-prefer-vada. This is becoming an even more

absurd case, Peterson, who had previously tested positive for elevated testosterone levels, did his own

testing prior to his fight with Lucas Matthysse without involving USADA or VADA. Tim Starks, Roy G

Biv: Preview and Prediction for Lamont Peterson vs. Lucas Matthysse, QUEESNBERRY RULES (May 17,

2013) http://www.queensberry-rules.com/2013-articles/may/roy-g-biv-preview-and-prediction-for-

lamont-peterson-vs-lucas-matthysse.html. For questions regarding the independence of these outside

drug testing agencies, see Montoya, supra note 137.

326. Rafael, supra note 112. But later, the fight was renegotiated after Pacquiao agreed to random

blood testing. Nevertheless, for a host of other reasons, they failed to agree to all the terms and the fight

was never made. Paul Magno, Pacquiao OK with Lesser Share of Mayweather Purse? Don’t Hold Your

Breath; Fan’s Take, YAHOO! SPORTS (Sept. 22, 2012, 6:23 AM),

http://sports.yahoo.com/news/pacquiao-ok-lesser-share-mayweather-purse-dont-hold-102300158--

box.html.

327. Rafael, supra note 112.

328. T.M., supra note 22.

329. See McRae, supra note 243 (PEDs are of special concern in boxing because “the extra power

or speed of a punch can end a career or even a life”).

330. Hauser Interview, supra note 127.

380 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

particularly notable given the current debates about concussions and head

trauma in all sports, particularly football.

331

Second, PED users suffer from

a multitude of side effects of anabolic steroid use. According to the

National Institute on Drug Abuse, “The health risks of steroid use are

abundant.”

332

Some of these health effects include “pulled muscles, torn

ligaments and tendons, mood swings, and ceased production of

testosterone.”

333

Other physiological side effects include high blood

pressure, jaundice, live tumors and cancer, growth stunts, as well as a

number of gender-specific side effects.

334

Psychological problems such as

depression, nervousness, hostility, and aggression (known as “roid rage”)

have also been known to occur.

335

In the worst case scenario, using PEDs can lead to death. On February

13, 2013, an eighteen-year-old university student in the United Kingdom

named Sarmad Alladin died after taking lethal bodybuilding pills.

336

Due to

insufficient regulation, such drugs can be advertised falsely or even simply

mislabeled. Therefore it is clear that benefits of better PED regulation

would be captured in the decreased medical costs.

337

With the well-

documented influence of PED use on our nation’s youth,

338

many of these

medical side effects would not be limited to current boxers, but would also

affect current children and teenagers as well as future athletes. In short,

PED use in sports has become a “public health crisis.”

339

Accordingly,

“[T]he cost of a central administration should be weighed against the costs

331. See, e.g., Steve Kim, Concussed, Then Concerned, MAXBOXING.COM,

http://www.maxboxing.com/news/max-boxing-news/concussed-then-concerned (last visited Jan. 2,

2014) (“With so much attention given to concussions now in the NFL and the effects of head trauma in

contact sports, like every other sport, boxing is more cognizant of the health and safety of its

participants.”).

332. Linderman, supra note 151, at 771–72.

333. Roche, supra note 238, at 490.

334. Saka, supra note 152, at 344–45.

335. Roche, supra note 238, at 499–500.

336. Leon Watson, University Student, 18, Known to His Friends as Mr Muscles Dies ‘After

Taking Fat-Burning Pills,’ MAILONLINE.COM, http://www.dailymail.co.uk/news/article-

2282158/Student-Sarmad-Alladin-18-known-Mr-Muscles-dies-taking-DNP-fat-burning-pills.html (last

updated Feb. 28, 2013, 8:05 AM).

337. These medical costs can be quite exorbitant for boxers. On November 2, 2013, Magomed

Abdusalamov suffered a blood clot after a fight and fell into a coma, and a trust was set up for

donations from fight fans to help “alleviate the financial burden” on Abdusalamov. Magomed

Abdusalamov: Trust Created for Boxer, Family, BOXINGSCENE.COM,

http://www.boxingscene.com/magomed-abdusalamove-trust-created-boxer-family--71360 (last updated

Nov. 5, 2013).

338. Lipscomb, supra note 237, at 307 (“Congressional findings have shown that the use of

steroids is escalating in high schools as well, with the role-model status of professional athletes

influencing use among America’s children.”).

339. Linderman, supra note 151, at 752 (internal quotation marks omitted).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 381

to society in providing for the long-term care of injured boxers.”

340

As one

doctor put it, “[F]ighters may think of [PED penalties] as punishment. The

doctors think of it as saving [their lives].”

341

At the same time, having a centralized PED testing policy would

lower costs because of economies of scale.

342

Instead of having each state

commission develop, implement, and carry out separate and mostly

ineffective PED testing procedures and policies, it would be more cost-

efficient for one centralized regulatory body—in my proposal, the USBA—

to do this, since the costs would not have to be replicated for each

individual state. Dr. Margaret Goodman, founder of VADA, also explains

that the cost of testing would decrease as more fighters are tested due to

this same economies of scale concept.

343

The last notable economic benefit of centralized testing is that many

externalities

344

would be internalized. In considering federal regulation, it

is only proper to look at all the social costs and benefits involved. In

professional sports, the use of PEDs engenders significant potential

negative externalities.

345

When the chances of detection are miniscule and

the rewards of success astonishingly high, the incentive to use PEDs can

make a fighter overlook the effects of PED use on the public integrity of

the sport, young athletes throughout the country, and the potential health

hazards posed to his opponent, in his decisionmaking calculus.

346

For

example, the significant medical costs imposed on fighters hurt by PED

usage and incurred by promoters, medical care providers, and insurance

companies are all affected by a boxer’s decision to use PEDs. But these are

rarely taken into consideration by a PED user. Ultimately, it is the public

that bears these medical costs as well as the resulting lost productivity.

347

340. Neiman, supra note 45, at 93.

341. Thomas Hauser, Mayweather-Pacquiao, PEDs, and Boxing, SECONDSOUT.COM,

http://www.secondsout.com/columns/thomas-hauser/mayweather-pacquiao-peds-and-boxing (last

visited Jan. 3, 2014) (quoting Todd Chapman, a ringside doctor licensed in Nevada) (internal quotation

marks omitted).

342. COLE & GROSSMAN, supra note 294, at 380.

343. See Greisman, supra note 288 (“[I]f we had total cards or large numbers of athletes at a time,

[costs] would be considerably less.”).

344. COLE & GROSSMAN, supra note 294, at 18.

345. The two main negative externalities are “(1) the negative influence that drug use among

professional athletes has on the nation’s youth, and (2) the public’s lost confidence in the integrity of

sports.” Whitman, supra note 26, at 476. “When the decision maker is a highly visible athlete and the

drugs involved are PEDs, the potential negative externalities are significant.” Id.

346. For more information on the heuristic nature of athletes’ decisions to use PEDs, see id. at

491–95.

347. Vacca, supra note 248, at 223. In general, “sports-related injuries are a continuing social

problem.” Timothy B. Fitzgerald, Comment, The “Inherent Risk” Doctrine, Amateur Coaching

382 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

Having Congress set the appropriate level of drug testing and enforcement

measures can deter boxers considering using PEDs so that the optimal level

of PED use will occur.

Therefore, the costs of better drug testing are not prohibitive and in

fact can be largely eliminated by imposing a small tax to make the USBA

self-funded. More importantly, “The benefits of implementing a thorough,

WADA-accredited testing program for clean athletes, the integrity of the

sport, and the health and safety of the competitors, far outweigh the

cost.”

348

Far from increasing the existing burden of the federal budget, a

cost-benefit analysis shows a strong argument for Congressional

intervention in PED regulation in boxing.

B. CONSTITUTIONAL CONCERNS

Of course, actions taken by Congress to regulate boxing may raise

constitutional concerns. However, in actually creating a federal regulatory

commission that licenses and drug tests boxers, Tenth Amendment

commandeering problems can be avoided. In the past, federal boxing

legislation such as the PBSA and the Ali Act could only suggest minimum

guidelines for all the states to follow. If the guidelines had been mandatory,

the states would simply have chosen not to enforce them, and as seen in

Printz, Congress cannot compel states to enforce federal legislation.

349

this case, however, the USBA would be meting out the punishments

directly, and being a federal regulatory body, it would have the necessary

motivation and authority to enforce its rules. Even if the USBA were to

hire independent anti-doping agencies like USADA and VADA to carry

out the testing, these are not state entities. Therefore Tenth Amendment

concerns can successfully be averted.

Some may also raise objections that the Fourth Amendment protects

individuals against unreasonable searches and seizures, which would apply

to compulsory blood and urine tests.

350

While this has been a problem for

Congress in regulating other sports,

351

boxing is unique in that it is already

regulated by the government via the state athletic commissions. Therefore,

in more heavily regulated professional sports like horse racing and boxing,

Negligence, and the Goal of Loss Avoidance, 99 NW. U. L. REV. 889, 890 (2005).

348. Montoya, supra note 18.

349. Printz v. United States, 521 U.S. 898, 924 (1997).

350. Michael T. Flannery & Raymond C. O’Brien, Mandatory HIV Testing of Professional

Boxers: An Unconstitutional Effort to Regulate a Sport That Needs to Be Regulated, 31 U.C. DAVIS L.

REV. 409, 459–60 (1998).

351. See Mitten, supra note 235, at 805–06.

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 383

mandatory randomized drug testing will likely be upheld as

constitutional.

352

In Shoemaker v. Handel, five jockeys sued the New

Jersey Racing Commission over regulations permitting the random drug

testing of any official, jockey, trainer, or groom.

353

However, the Third

Circuit Court of Appeals ruled that because horse racing was so heavily

regulated, there was a strong governmental interest in ensuring the public

integrity of the sport and the persons involved, who justifiably have

reduced privacy expectations.

354

In another horse racing case, Judge Posner

also agreed that “[w]hen we compare the plausible dangers, both to safety

and to revenue, . . . we conclude that the [mandatory random drug testing]

rule is not unreasonable, and therefore that it does not violate the Fourth

Amendment.”

355

Horse racing is the sport most similar to boxing in its level and

structure of regulation.

356

Accordingly, the government interest in the

public integrity of boxing is just as strong. With the widespread exposure

of boxers such as Manny Pacquiao and Floyd Mayweather, there is

arguably an even greater diminished privacy expectation for boxers.

Further, the considerable safety concerns and impact on revenue

357

that the

lack of effective PED testing would have on professional boxing points to a

high likelihood that any Fourth Amendment challenge to mandatory

random drug testing in boxing would fail, just as it did in horse racing. This

last point also shows an alternate path to the same end. The special needs

doctrine, articulated in Skinner v. Railway Labor Executives’ Association,

allows for mandatory drug testing without individualized suspicion where

there is a sufficiently compelling government interest in the safety of the

railway passengers and employees.

358

Because of its heavy regulation and

significant safety concerns, this special needs doctrine easily finds an

application in boxing and protects the government against Fourth

Amendment challenges to random PED testing.

359

352. Shepard Goldfein, James A. Keyte & Paul M. Eckles, Labor Arbitration—Drug-testing and

Grievances, in 11 BUS. & COM. LITIG. FED. CTS. § 125:43 (Robert L. Haig ed., 3d ed. 2012); WALTER

T. CHAMPION, JR., FUNDAMENTALS OF SPORTS LAW § 15:2 (2d ed. 2013).

353. Shoemaker v. Handel, 795 F.2d 1136, 1137 (3d Cir. 1986).

354. Id. at 1142.

355. Dimeo v. Griffin, 943 F.2d 679, 684 (7th Cir. 1991).

356. Hauser Interview, supra note 127.

357. See supra Part II.A.

358. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 620 (1989).

359. Flannery & O’Brien, supra note 350, at 462–63; Roche, supra note 238, at 506.

384 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

C. POLITICAL CONCERNS

One final objection against the passage of an amended PBAA bill is

that it has failed so many times before. Even if it makes economic sense,

and even if it is constitutional, is Congress likely to pass it? It is tempting

to dismiss Congress as simply lacking the motivation to pass such

legislation. Some politicians have previously questioned the need for the

proposed USBA or any sort of federal commission.

360

Of even greater

concern are the influential interest groups, such as promoters, television

networks, and state boxing commissions, that would strongly oppose such

legislation because they profit so much from the status quo.

361

Even in the

past, many of these interest groups have lobbied against boxing reform.

362

Hence, some may doubt that the PBAA will pass this time around.

Nevertheless, there are reasons to be optimistic. Notably, the 2012

version of the PBAA was not only sponsored by Senator McCain but also

cosponsored by Nevada Senator and current Senate Majority Leader Harry

Reid.

363

This shows promise of support from both the Democrats and the

Republicans, and more importantly, a senator from the state with the

greatest financial incentive to oppose the bill.

364

But with the strong

government interest in public health and safety, as well as the precedent set

by Congress in 2005 when it addressed the steroid problem in baseball, a

robust argument can be made for the necessity of government action here.

Incorporating some PED regulation provisions into the PBAA would

also be quite feasible considering that McCain was not only behind all the

boxing reform bills, but also played a significant role in the Congressional

bills regulating PED usage in baseball in 2005.

365

Also, one reason the

PBAA failed to pass in 2012 was because it was an election year, when

boxing took a backseat to other issues.

366

That year, the 112th Congress

360. Moore, supra note 175, at 226.

361. Neiman, supra note 45, at 92.

362. Clients Lobbying on S.3306, supra note 225. Additionally, there are other “monied interests”

that may not have filed lobbying reports but have still left their mark. Email from Tim Starks, boxing

writer and Congressional Quarterly reporter, to Jonathan Koh, supra note 254.

363. Professional Boxing Amendments Act of 2012, S. 3306, 112th Cong. (2012); About Senator

Harry Reid, HARRY REID, http://www.reid.senate.gov/about#.UskSkLK26XY (last visited Jan. 4,

2014).

364. Nevada, along with California, is one of the most popular boxing venues, and thus their state

commissions are among the most prominent. Gandert & Ronisky, supra note 23, at 826.

365. Saka, supra note 152, at 355; Steroid Use in Professional and Amateur Sports: Hearing

Before the S. Comm. on Commerce, Sci., & Transp., 108th Cong. 1–2 (2004) (statement of Sen. John

McCain, Chairman, S. Comm. on Commerce, Sci., & Transp.), available at

http://www.gpo.gov/fdsys/pkg/CHRG-108shrg76456/pdf/CHRG-108shrg76456.pdf.

366. Email from Tim Starks, boxing writer and Congressional Quarterly reporter, to Jonathan

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 385

was also notorious for facing problems with the fiscal cliff and debt ceiling,

and achieving almost nothing of note.

367

These unfortunate circumstances

contributed to a lack of action on the PBAA. It is also worth mentioning

that the boxing incident behind the reintroduction of that bill in 2012 was a

controversial split decision, but making PEDs the driving force refocuses

health and safety as the primary concerns of the bill. The timing is right,

then, for Congress to act to fix this pressing problem.

Furthermore, since there is a demonstrated Congressional interest and

precedent in preventing the use of PEDs in sports,

368

if Congress amends

the previous versions of the PBAA to include PED regulation, its passage

will stand a much better chance. Unlike match-fixing, poor judging

decisions, corrupt rankings, and other problems specific only to boxing,

PED problems have been well-understood and well-documented by

Congress and society in general. The health and safety concerns of PEDs

are especially highlighted in boxing, as both the PED user and his opponent

may be harmed. This potential danger constitutes a compelling government

interest in the safety of the participants as well as the public integrity of the

sport.

VI. CONCLUSION

Boxing has been beset by innumerable problems for decades; no

single measure can hope to cure all of its ailments. The growing emergence

of PEDs in boxing, however, has pushed this issue to the forefront. It has

been proven that PED users suffer from significant medical side effects,

both physical and mental. In combat sports, this problem is exacerbated

because the opponent is also harmed by being hit harder and more often.

369

Recent developments and positive tests have only underscored the

prevalence of PED usage in boxing. Yet self-regulation is impossible due

to the current decentralized state regulatory regime, where “there are too

Koh, supra note 254. This was also a reason that McCain ceased to push for boxing reform in 2008,

when he himself was running for President. Sharma & Futterman, supra note 212.

367. Email from Tim Starks, boxing writer and Congressional Quarterly reporter, to Jonathan

Koh, supra note 254. See also Ezra Klein, Goodbye and Good Riddance, 112th Congress, WASH. POST

(Jan. 4, 2013, 8:00 AM), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/04/goodbye-

and-good-riddance-112th-congress/ (evaluating the lack of productivity of the 112th Congress).

368. Roche, supra note 238, at 516.

369. “A fatality would be the most stark evidence of the crisis. But the dangers go far beyond a

handful of deaths. Twenty years from now, an entire generation of fighters will have brain damage from

having been hit in the head harder than would have been the case without PED use by their opponents.”

Thomas Hauser, Edwin Rodriguez, PEDs, and Al Haymon, SWEET SCI. (Oct. 4, 2013, 9:14 PM)

http://www.thesweetscience.com/news/articles/17341-edwin-rodriguez-peds-and-al-haymon.

386 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 87:335

many people . . . benefiting from the system as it presently exists.”

370

fact, because of the potential local earnings and financial stimulus that a big

fight can bring, states have an incentive to issue more relaxed standards to

attract these bouts, creating a race to the bottom among the different state

commissions. The result is that the drug testing currently utilized by states

is hopelessly out of date, and on the off chance that fighters do test

positive, they are rarely punished.

Concrete steps can be taken to curb the problem before it is too late.

With the creation of the USBA under the PBAA, boxing has a chance to

effectively regulate PEDs. Furthermore, having a centralized regulatory

body like the USBA would resolve many of boxing’s other problems as

well because it would eliminate the piecemeal regulation and override the

individual states’ incentives to deregulate.

371

Nevertheless, in light of the

Lance Armstrong scandal, the recent baseball steroids debacle, and the

head trauma controversy in the NFL, PEDs have never been a more

prominent social issue and should be the focus of the PBAA. In addition to

the health concerns, the potential economic harm to the boxing industry, if

PED usage is allowed to continue unchecked, would be quite substantial.

With Congress having intervened on the PED issue with baseball in 2005,

the inclusion of PED regulation could be the push that the PBAA needs to

become law. This is also more likely with the bill garnering some

bipartisan support in the last year.

This Note urges Congress to take the opportunity of this “perfect

storm” of timing and events to amend the PBAA to include mandatory and

effective drug testing and deterrence measures. This will not only be

successful in confronting the PED problem but also in increasing the

probability that the PBAA will be passed at all. While historically there

have been many objections to passing the PBAA, those concerns can be

adequately addressed. The costs of the bill can be offset by making the

USBA self-funded, and in any case, costs should not be considered in

isolation. With the considerable amount of money at issue in the boxing

industry, the potential benefits of such regulation far eclipse any minimal

cost concerns. The overwhelming economic and health benefits of proper

regulation of PEDs in boxing are much more certain because the USBA, as

a centralized regulatory body, provides the PBAA with an enforcement

mechanism that gives the bill teeth.

370. Symposium, supra note 71, at 214.

371. See Jurek, supra note 71, at 1191 (“The absence of a centralized organizing and oversight

body is the cause of many of boxing’s problems.”).

2014] PERFORMANCE-ENHANCING DRUGS IN BOXING 387

“When boxing is run right, it’s a scary sport. When it’s run wrong, the

risks become unacceptable.”

372

Boxers have died in the ring before.

373

Unless something is done, it will be a matter of time until another boxer is

killed; only this time, his opponent will be discovered to have been using

PEDs. There is no reason to wait until such tragedy strikes to awaken

Congress from its usual slumber—the time to act is now.

372. Thomas Hauser, Medical Issues and the AAPRP, SECONDSOUT.COM,

http://www.secondsout.com/usa-boxing-news/usa-boxing-news/medical-issues-and-the-aaprp (last

visited Jan. 5, 2014).

373. In October 2013, professional boxer Frankie Leal was knocked out in the eighth round,

placed on a stretcher, and brought to the hospital, where he passed away. Kim, supra note 15. Although

there was no evidence of PED use, the takeaway is the same: boxing is “inherently dangerous, and

unfortunately, at times, fatally so. But [one] would hope that in the wake of the latest tragedy that those

who run the sport look upon the fate of Leal as an object lesson in what can happen when proper

regulations . . . aren’t employed.” Id.

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