By Thomas Hauser

On December 8, 2012, Manny Pacquiao fought Juan Manuel Marquez at the MGM Grand in Las Vegas. It was the fourth time that the two men had met in the ring. In thirty-six previous rounds, Marquez had been unable to knock Pacquiao down.

Marquez had a new look when he faced Pacquiao in their fourth encounter. Having trained under the supervision of Angel “Memo” Heredia (a/k/a Angel Hernandez), Juan Manuel was sporting a dramatically altered physique. To some, even his head seemed differently shaped.

Heredia’s resume includes a stint as a steroid dealer who cooperated with prosecutors after being ensnared in the BALCO drug scandal.

In round six, Marquez knocked Pacquiao unconscious with one punch. The image of Manny pitching forward and lying face-down on the canvas lingers in the mind. He lay there for a long time.

The floodgates are open now. Whether or not Marquez used illegal PEDs, a lot of fighters think that he did. And they’ll use them to further their own ring aspirations.

Pacquiao, like Marquez, has been suspected of PED use in the past and scored his share of brutal knockouts. Neither man has ever tested positive for illegal performance enhancing drugs. But it’s a matter of record that elite fighters like Fernando Vargas, James Toney, Antonio Tarver, Andre Berto, and Lamont Peterson have. Shane Mosley never tested positive, but his name surfaced in the BALCO investigation and he ultimately admitted using PEDs. Other fighters like Evander Holyfield, Jameel McCline, and Yuriorkis Gamboa have been linked to PED use by clinic records.

As I wrote nine months ago, “PED use is more prevalent in boxing now than ever before, particularly at the elite level. Fighters are reconfiguring their bodies and, in some instances, look like totally different physical beings. In a clean world, fighters don’t get older, heavier, and faster at the same time. But that’s what’s happening in boxing. Improved performances at an advanced age are becoming common. Fighters at age thirty-five are outperforming what they could do when they were thirty. In some instances, fighters are starting to perform at an elite level at an age when they would normally be expected to be on a downward slide. PEDs offer more than a shortcut. They take an athlete to a place that he, or she, might not be able to get to without them. When undertaken in conjunction with proper exercise and training, the use of PEDs creates a better athlete. The use of PEDs is also illegal, gives an athlete who uses them an unfair competitive advantage, and endangers other fighters who are getting hit in the head harder than before by opponents.”

Suppose Pacquiao hadn’t gotten up, ever, after being knocked out by Marquez? Suppose he had lapsed into a coma and died? Or suffered serious irreversible brain damage?

To repeat; I’m unaware of evidence proving the proposition that Juan Manuel Marquez has used illegal PEDs.

That said; many fighters are using PEDs. And it’s inevitable that there will be lawsuits over that use; lawsuits brought by fighters who have lost fights and suffered injuries at the hands of users.

Boxing is legalized assault. It consists of conduct that would be a crime had it not been sanctioned by the state.

Fighters – in legal terms – assume the risk of being hurt every time they step into the ring. A fighter consents to be hit by an opponent who has honed his skills and gotten into the best condition possible. But – and this is a big but - the opponent must prepare for the fight and conduct himself during the fight within the rules.

The rules and regulations that govern boxing have the force of law. Many of them are in place to protect the health and safety of fighters. One of these rules is that a boxer may not use certain designated drugs. Violating these rules can give rise to a cause of action in a civil lawsuit for battery.

Would a fighter have a cause of action for battery if he were hurt by an accidental low blow or accidental headbutt? No. That risk is assumed when a fighter enters the ring. It’s understood that the remedy will be a warning, a points deduction, or disqualification at the discretion of the referee.

The same also likely holds true for intentional low blows, intentional headbutts, and fouls of that nature. These transgressions are anticipated in boxing and are dealt with by the rules.

But then we go to more egregious conduct that is not reasonably anticipated during the conduct of a fight . . . such as ear-biting.

For many years, Jim Thomas was Evander Holyfield’s attorney. Thomas recounts, “I remember very clearly talking with Evander on the morning after Mike Tyson bit off part of his ear. I told Evander that no one can say anything with certainty when it comes to litigation, but that I thought he had a claim against Mike that was as close to a sure thing as anything I’d ever seen. I was willing to pursue that lawsuit. But Evander felt it was important for him to forgive Mike, and suing Mike would have been inconsistent with that forgiveness. I remember Evander telling me, ‘I made thirty-four million dollars for three rounds last night. That’s enough.’”

In some ways, using illegal PEDs is more egregious than a foul committed in the heat of battle. It’s premeditated, scripted, and implemented over a long period of time.

Who could be sued for illegal PED use?

The most obvious defendants are the offending fighter and anyone who facilitated his use of PEDs.

An entity such as USADA that was responsible for administering drug tests prior to the fight and was negligent or otherwise culpable in failing to detect or report the presence of illegal substances might also be named as a defendant. In some instances, the governing state athletic commission would be vulnerable to suit. But many states have a doctrine of “sovereign immunity” that precludes such claims.

A plaintiff would have to prove three things to prevail at trial. On each issue, the level of proof required would be a “preponderance of the evidence.”

First, the fighter (or his estate if the fighter had died) would have to convince the jury that it was more likely than not that the opponent had used illegal performance-enhancing drugs.

A positive drug test would be the best proof on this issue. But other evidence would be admissible. It’s worth remembering that Lance Armstrong, Marion Jones, Barry Bonds, Alex Rodriguez, Shane Mosley, and other high-profile athletes tested “clean” before they were undone by investigations and collateral legal proceedings.

The plaintiff could take depositions of the opposing fighter, his conditioner, trainer, manager, friends, and the alleged PED supplier. It’s one thing for a fighter and his camp to deny PED use to the media. It’s another thing to deny knowledge of PED use under oath. The latter can lead to a charge of perjury. Criminal prosecutions for lying under oath in a civil case are rare. But in a case of this nature, the authorities might be watching.

Second, the plaintiff would have to prove by a preponderance of the evidence that there was a causal connection between the illegal PED use and the damages suffered by plaintiff in the fight. In other words, it would require a finding on the part of the jury that something different would likely have happened without the use of illegal PEDs.

That’s not easy to prove. Boxing is a violent sport. By it’s nature, bad things happen. No one suggests that Ray Mancini used illegal PEDs before he fought Deuk-Koo Kim or that Emile Griffith used illegal PEDs before bludgeoning Benny “Kid” Paret to death.

But the plaintiff wouldn’t have to prove that illegal PED use was the sole cause of the damages suffered; only that it was a contributing factor.

If someone is driving drunk and the car skids out of control on an icy road killing a pedestrian, the car might have skidded out of control anyway because of the ice. But the fact that the driver was drunk will weigh heavily in determining whether or not there was a causal connection.

If someone who previously suffered a stroke has a cerebral hemorrhage after being punched in the head in a bar fight, the defendant can’t escape legal responsibility by simply saying, “He might have had a cerebral hemorrhage anyway.”

A fighter wins by inflicting physical damage on his opponent. Hurting an opponent more seriously than he would otherwise have been hurt is not just a foreseeable result of PED use. It’s the goal of PED use. When a fighter artificially enhances his power, speed, and stamina, it becomes more likely that he will injure his opponent.

And third; to receive compensation, the plaintiff would have to prove the extent of the damage suffered. This could lead to compensation for pain and suffering from physical injuries and also lost economic opportunity (such as being unable to fight for a given period of time due to injury or the difference in economic terms between winning and losing the fight). These calculations would be highly speculative. But that’s what juries are for. 

Under certain circumstances, the jury might also award punitive damages.

Emotion plays a significant role in jury verdicts. The plaintiff’s case would be more compelling if he’d suffered a serious injury in the fight. A ring death would particularly incentivize the lawyers.

The jury would have the right to draw its own conclusions from the evidence presented to it. As with most cases, the outcome would depend in significant measure on which side had the better lawyers and more convincing expert witnesses.

A lawsuit of this nature would not be without precedent. On April 30, 2005, James Toney outpointed John Ruiz at Madison Square Garden to annex the World Boxing Association heavyweight crown. Thereafter, Toney tested positive for the banned steroid, Nandrolone. He was fined and suspended by the New York State Athletic Commission and the result of the fight was changed to "no decision." But there was more to come.

On December 13, 2005, Ruiz filed a civil lawsuit for battery and other minor claims against Toney in the United States District Court for the Southern District of New York. The heart of his complaint read, “Ruiz did not consent to fight a boxer whose skills, strength, and abilities were artificially augmented by the use of Nandrolone. Furthermore, Ruiz did not have knowledge of Toney's use of Nandrolone, either actual or implied, as use of that drug violates federal law and is forbidden by the rules of the sport of boxing.”

Ruiz had a strong case in many respects. His Achilles heel was damages. After Toney tested positive for Nandrolone, John got his belt back and the loss was expunged from his record. He hadn’t suffered any broken bones or a bad beating in the fight. And in his next outing, he received a seven-figure payday to defend his title against Nikolay Valuev. The case was settled pursuant to a confidentiality clause whereby each side agreed to not discuss publicly the terms of the settlement.

Civil lawsuits brought by wronged individuals have been a driving force for reform in many areas of American life. At present, it’s painfully clear that state athletic commissions aren’t dealing effectively with the widespread use of illegal performance-enhancing drugs in boxing. Maybe private litigants will.

The lawsuits will come. The key questions are when, who will bring them, and how will they end?

Thomas Hauser can be reached by email at . His most recent book (Thomas Hauser on Sports: Remembering the Journey) was published by the University of Arkansas Press.