KENTUCKY: FRIED Part 9 — 'BLACKING OUT' ON THE LAW

The 62nd Round

(NOTE: The “Q & A” passages in these reports, as well as the direct quotes, are a product of a deposition taken from Nancy Black, dated October 14, 2002)

Obviously, there is a distinction to be made between what is a state law and what is a federal law. The Professional Boxer Safety Act of 1996 was written to establish certain minimum standards, especially as they regarded safety in and around a boxing ring. The Muhammad Ali Boxing Reform Act took steps to amend the Professional Boxer Safety Act and addressed further issues, specifically about the industry itself, dealing with the roles of managers, promoters, sanctioning bodies and ring officials, and their obligations to disclose certain information to boxing commissions.

Of course, we have been critical of these laws and their level of enforcement, not to mention what has conspicuously been left out.

Nonetheless, what is contained in these laws overrides state law. More specifically, it provides that states can have regulations that vary from those set forth in the federal legislation, but only if they are MORE stringent.

As the administrative head of a state boxing regulatory agency, it most certainly was Nancy Black's duty to be aware of this. Pathetically, she was not.

And if there is an argument for one other thing we have stressed would constitute more efficient regulation – that is, a mechanism to facilitate more accountability on the part of state regulators who flout the federal law – you're about to see it.

We begin with questions from Greg Page's attorney, Doug Morris, exploring Ms. Black's familiarity with laws that would seem to be quite germane to her role as a Kentucky boxing administrator.

“Q: Were you familiar with the Professional Boxing Standards (sic) Act, the Muhammad Ali Act prior to the Greg Page fight in March of 2001?

A: I was aware of it, yes.

Q: Did you consider that the Kentucky State Athletic Commission was required to comply with the Professional Boxing Safety Act – the federal Professional Boxing Safety Act?

A: No.”

Black was evasive in her testimony, but ultimately she had to admit, in so many words, that she did not understand the ramifications of the federal law:

“Q: Had the Kentucky Athletic Commission, prior to March of 2001, ever reviewed the federal Professional Boxing Safety Act, to your knowledge?

A: Yes.

Q: All right. And when was that Professional Boxing Safety Act reviewed by the Kentucky Athletic Commission?

A: I don't recall specific dates, even approximations.

Q: Would it be within the minutes of the Kentucky Athletic Commission?

A: I don't know.

Q: If that's something that was discussed in an official meeting of the Kentucky Athletic Commission, wouldn't that be the type of thing that would typically be within the minutes of the Kentucky Athletic Commission?

A: Yes.

Q: Why was that reviewed by the Kentucky Athletic Commission prior to March 2001? Why was the Professional Boxing Safety Act reviewed by the Kentucky Athletic Commission prior to March of 2001?

A: I believe because it passed –

Q: All right.

A: Prior to that date.

Q: And was it being reviewed to determine whether the Kentucky Athletic Commission was required to comply with the terms of that act?

A: Yes.

Q: And I take it some determination was made?

A: Yes.

Q: And what was the determination?

A: That the federal law was not – did not supersede state laws.

Q: And how was that determined?

A: I don't understand the question.

Q: Yes, sir – yes, ma'am. Did you seek, for example, the opinion of the Kentucky attorney general or any staff attorney that might work with the Kentucky Athletic Commission? Did you contact any federal officials? Did you simply discuss it among yourselves? How was it determined that, as you said, the federal law did not supersede state law?

A: We did not seek an opinion from the attorney general's office. I'm assuming that – excuse me. That's not a good way of saying that. The commissioners all had copies of the law and regulation – the federal law and reviewed it.

Q: And that included yourself?

A: Yes.

Q: And is there an official minute of the Kentucky Athletic Commission whereby the commission finds that Kentucky law is not superseded by the Professional Boxing Safety Act?

A: Not to my knowledge.”

And later……

“Q: Did you obtain – have you at anytime obtained an opinion of the Kentucky attorney general on that issue?

A: No, sir.

Q: Have you at anytime obtained a legal opinion from anyone on that issue?

A: No, sir.

Q: Are you familiar with Section 6313 of the Professional Boxing Safety Act which states that nothing in this chapter shall prohibit a state from adopting or enforcing supplemental or more stringent laws or regulations not inconsistent with this chapter, or criminal, civil, or administrative fines for violations of such laws or regulations?

A: I have read that.

Q: Wouldn't you agree that this law requires state commissions to enact laws and to enforce laws that are at least as stringent as those set forth in the Professional Boxing Safety Act?

MR. MEHLING (Black's attorney): Object. That calls for a legal conclusion.

Q: I'm just asking about you as a member of the Kentucky Athletic Commission.

A: I am not an attorney. That is a legal question that would need to be directed to the attorney for the commission.

Q: But you made a determination about the applicability of this statute without ever having consulted an attorney, correct, ma'am? And I'm talking – when I say you, let me make sure that we're on this together. The Kentucky Athletic Commission had made a determination about the applicability of the federal Professional Boxing Safety Act without ever having consulted with an attorney?

A: No, sir, I never said that.

Q: I must have misunderstood. Has the Kentucky Athletic Commission ever consulted with an attorney on the issue of whether the Professional Boxing Safety Act must be met by the Kentucky State Athletic Commission?

A: Yes.

Q: When did you do that?

A: I did not – I was not a member of the commission when that was done.

Q: When was that done by the commission?

A: Before I became director of the Division of Occupations and Professions.

Q: all right. So it was before 1998?

A: Yes, sir.

Q: And is there a record of that having been done?

A: Not to my knowledge, no.”

It should be noted at this time that the Muhammad Ali Act, which amended portions of the Professional Boxer Safety Act, was enacted into law in the year 2000. So if Black's testimony is to be believed, she has never taken the time to review the Muhammad Ali Act or the PBSA amendments, and neither has the Kentucky Athletic Commission as a group.

After more evasiveness, Black, at long last, was forthcoming about the genesis of her ignorance:

“Q: What was your conclusion about whether the standards in the Professional Boxing Safety Act applied to events held within the state of Kentucky?

A: I do not believe that the federal law supersedes Kentucky's laws.

Q: And I'm not talking about now whether it supersedes. I'm talking about whether – I mean , there may be that there are some Kentucky laws that apply. It may be that if there's a conflict, the federal law applies, and I just want to make sure that we're communicating, because I don't want to misinterpret what you're saying.

A: No, you need to understand I am not an attorney.

Q: Yes, ma'am. Do you have an opinion about whether any of the provisions of the federal Professional Boxing Safety Act apply?

A: No.

Q: They do not, in your opinion?

A: No, I don't have an opinion.

Q: What is the basis of your opinion that Kentucky law is not superseded by the federal law?

A: It's based solely on my personal reading of the federal act and my interpretation.”

Then at that point came what I thought was a rather incredible exchange in this deposition.

Doug Morris, Greg Page's attorney, asked Black the following question – “Well, let me show you the Act, and would you go through that and find for me the provision that you believe would say that the provisions of that act do not apply to events held within the state of Kentucky.”

Immediately, Christopher Mehling, Black's lawyer, stepped in — “And I am going to object. I really think you're asking her now for a legal ruling, and I really think we're – you and I know what the act says. The act has a specific provision that says IT ONLY APPLIES WHEN A STATE HAS NO BOXING COMMISSION……..”

Obviously, since this seemed to be the opinion of the attorney for the Kentucky Athletic Commission, it offers a keen insight as to the mentality Black, Jack Kerns, and the rest of the Kentucky commission had, and apparently still have, regarding their own responsibilities under any federal laws that may exist.

And Black is on record that she felt herself completely capable of making an interpretation of the Ali Act and the Professional Boxer Safety Act without the benefit of consultation with an attorney (not that it would have mattered much, if Mehling was that attorney). So she's disingenuous, to say the least.

How disingenuous? How much of a liar is she?

Well, Black wasn't above fabricating her facts “on the fly”, so to speak. Morris asked her again about the Professional Boxer Safety Act:

“Q: All right. Well, what I would like you to do – since you reviewed it in March or April and made a determination, I would like for you – and I've handed you this statute. I would like for you to look at that and tell me what portion of that statute you relied upon in concluding that it did not apply to events held in the state of Kentucky.

A: I relied upon the section that Mr. Mehling just quoted to you, that IT APPLIES ONLY TO THOSE STATES WHO DO NOT HAVE A COMMISSION.

Q: All right. Would you find that section for me, ma'am?

A: It is on page 186 – and I don't know exactly how to quote this – 1996 acts, section one – excuse me – paren one, section nine, shall not apply to and otherwise offer as boxing commission in the common – well, that says Commonwealth of Virginia – excuse me. I have been unable to locate it, but then I'm not an attorney, and that's the best I can do.

Q: So as we sit here today, you're not able to identify for us any particular section of that act that would say that the laws contained therein do not apply within the state of Kentucky; am I correct?

A: I cannot locate it in the federal act that you – the copy you've shared with me.”

Yeah, or ANY copy, for that matter.

That's a big problem. A tragic problem. If only people like Nancy Black weren't too f***ing stupid to realize it.

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