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Will Perjury Pressures Prevail for Pacquiao’s Pulled Punches?

About The Author

Samuel Cuthbert (Private Law Manager)

Sam read Philosophy at Durham University, followed by the GDL funded by the Lord Brougham Scholarship and a Hardwicke Scholarship from Lincoln's Inn. Sam is now spending a year, prior to undertaking the BPTC, to develop his legal interests in a paralegal capacity. His legal career is starting in a M&A paralegal role at a large Viennese firm. He is a passionate speaker and has his sights set firmly on a career at the bar.

Seldom, very seldom, does complete truth belong to any human disclosure; seldom can it happen that something is not a little disguised or a little mistaken.

Jane Austen, Emma.

Admittedly it was with a certain smugness that I took the opportunity to shoehorn a Jane Austen quote into this article, a feeling which was amplified by the fact that her fiction could not be further away from the boxing match heralded as ‘the fight of the century’. But testament to the boundless wisdom of the great novelist, Manny Pacquiao appears to have vindicated her foreboding peal in what was either a little mistake, or a little disguise on his pre-fight disclosure questionnaire. Among talk of potential charges of perjury from the Nevadan authorities for withholding his shoulder injury, there seems to be mileage in exploring, from a legal perspective, the question of whether Pacquiao neglected the statesmanlike honour for which he has become known, at the prospect of the cloying, saccharine heights of bright lights and corporate sponsorship?

Failure to Disclose

Whilst training, in the build up to the boxing match against Floyd Mayweather, Pacquiao was said to have suffered a torn rotator cuff. The much hyped match took place on May 2nd 2015 at MGM Grand Garden Arena, Las Vegas, and Pacquiao was reported to have incurred the injury during a sparring session at the Wild Card Boxing Club in Los Angeles the month before. Crucially though, Pacquiao answered “no” to the question: ‘Have you had an injury to your shoulders, elbows, or hands that needed evaluation or examination? If yes, explain’ on the pre-fight medical questionnaire. This document was intended to ensure complete disclosure of all variable factors which may affect the outcome of the fight. However, hours before entering the ring, the Pacquiao camp applied for permission from the Nevada Boxing Authority for Manny to receive an injection which would have had the effect of numbing the pain in his shoulder.

It was refused. Whilst the pain killing (non-performance-enhancing) drugs Pacquiao had been taking were disclosed on this questionnaire (Lidocaine, Bupivacaine, Celestone, PRP, Toradal), the injury itself was conspicuously absent. The injury itself was so severe that Pacquiao claimed he was unable to use his right hand properly after the third round, almost certainly impacting upon the final result. Significantly, the legal disclaimer which featured on the signed document states that the signatory ‘swears, under penalty of perjury, that the above information is true and correct’. That this clause features on the questionnaire indicates the importance placed on disclosure of information which may affect the outcome of the hugely valuable fight. This is the crux of the perjury claim which Pacquiao may find himself subject to, which according to Nevadan law, is considered a D-class felony, punishable by up to four years in prison (NRS 193.130). He may also face a fine of up to $5,000. Although that may seem little more than loose change to the athlete, who pocketed a cool $50m from the fight, this may only mark the start of his legal worries considering the litigation proceedings already begun by two disgruntled fans claiming to have been defrauded by the failed disclosure.

Pacquiao was reported to have said ‘I didn’t want to disappoint the fans’, presumably fearing that disclosure would prompt the authorities to postpone the match, upon which an excess of an eye-watering $300m was resting for the fighters alone, as well as the unquantifiable emotional investment of fans and boxing enthusiasts worldwide.

Cisco Aguilar, the Nevada Athletic Commission chairman released a statement highlighting that:

Disclosure is a big thing for us, and honesty. The commission at some point will have to discuss [Pacquiao’s medical questionnaire]. I've got to run through the process with the [Nevada] Attorney General [Adam Laxalt]. But they do sign that document under the penalty of perjury.  

The various requirements for this penalty are detailed below.

Defending the Indefensible?

The Pacquiao camp tried to justify the failure to disclose on strategic grounds. In an exclusive statement to True Ink, they contended that disclosure would have allowed Mayweather to target the weakness thus putting Manny at a disadvantage. As it turned out, the loss was far more comprehensive than such tactics suggest Pacquiao thought it would be, with him connecting just 81-of-429 punches, his adversary landing 148-of-435. Consequently, it is unlikely that prior knowledge of Manny’s weakness would have affected the result of the match.

Whilst such tactics may seem reasonable despite the overall result, this justification for the disclosure does not cohere with the press release from Mike Koncz, one of Pacquiao’s advisors, who said shortly after the fight:

Number one, Manny didn't check the box, I checked it. It was just an inadvertent mistake. If I was [sic] trying to hide anything, would I have listed all the medications on the sheet that he intended to use? We weren't trying to hide anything. I just don't think I read the questionnaire correctly. I’m going to take full responsibility for what happened. The wrong box was checked [.…] If we had wanted to, we could have done the injection at the hotel before the fight and nobody would have known but we didn't want to hide anything.

There is something plainly suspicious about a situation in which the boxer seeks to justify the lack of disclosure on strategic grounds, whilst a close personal representative does all he can to distance Manny from the offending signature, claiming to have made a mistake on Manny’s behalf. Whether or not that will provide grounds for charging Pacquiao remains to be seen, but for the sake of legal supposition, it is worth noting how the Nevadan legal authorities would treat the charge, and how, if something similar happened in the UK, British courts would consider it.

Nevada Law

Contrary to the common conception of lawlessness in The City of Sin, the statutory provisions for perjury in Nevada are simple and efficient, as per NRS 199.145, which deals with statements made in declaration under penalty of perjury:

A person who, in a declaration made under penalty of perjury:

  1. Makes a wilful and false statement in a matter material to the issue or point in question; or
  2. Wilfully makes an unqualified statement of that which the person does not know to be true

or who suborns another to make in such a declaration a statement of the kind described in subsection 1 or 2, is guilty of perjury or subornation of perjury, as the case may be, which is a category D felony and shall be punished as provided in NRS 193.130.

It would be for the prosecution to prove beyond reasonable doubt that Pacquiao had wilfully failed to disclose, which, given the confusion surrounding the reason for the mistake being made, may not prove overly difficult. Moreover, there would be grounds, were the charge to be brought against Mike Koncz, and were it to be proven that the Pacquiao camp had instructed the failed disclosure, that Manny may be proven guilty under the same statute for the subornation of perjury. Furthermore, there would be no defence available to Pacquiao on the grounds that an oath was administered or taken in an irregular manner or that he was not competent to give the testimony alleged to be false. It would be sufficient that he actually gave such testimony or made such deposition, certificate or affidavit (NRS 199.180). Therefore, were a prosecution able to prove intention to withhold the information, be it for strategic purposes or otherwise, the Philippine politician could be looking at a prison term.

What about the UK?

It is also an interesting exercise to consider the approach of UK law: how might the British courts react? With regard to perjury, s. 2(1) Perjury Act 1911 deals with false statements on oath made otherwise than in a judicial proceeding, which appears to fit Team Pacquiao’s alleged crime.

If any person being required or authorised by law to make any statement on oath for any purpose, and being lawfully sworn (otherwise than in a judicial proceeding) wilfully makes a statement which is material for that purpose and which he knows to be false or does not believe to be true […] he shall be guilty of a misdemeanour, and, on conviction thereof on indictment, shall be liable to penal servitude for a term not exceeding seven years or to imprisonment, for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

It is well known that this offence saw the downfall of Lord Archer just after the turn of the millennium, receiving a four year sentence for his crimes. But, what might the ramifications be for sportsmen playing important fixtures with undisclosed niggling injuries? There are a number of similarities between the case of the former deputy chairman of the conservative party and that of Pacquiao. Both appear to have made false statements, and both had considerable sums of money at stake. Whilst there is a significant difference between the sums which benefitted either man, they were both record breakers in their own right: Archer won a record £500,000 from the Daily Star over allegations (which it transpired were true) that he slept with a prostitute 'willing to engage in perverted sexual practices', whilst the Las Vegas boxing match charted the highest pay per view sales in history.  Thus the levels of public interest in the trial of R v Archer (which serves as the only guideline case on perjury) and the fact that there seems to be a similarly great deal of public interest in Pacquiao’s failure to disclose may provide some insight into whether, were this to be subject to UK law, a case would be brought.

Would Pacquiao’s situation justify a defence of duress by circumstance? Perhaps he felt such an obligation to his fans that failing to disclose felt like the only option available. It seems far from watertight, and unlikely to stand up in court. The statement is most certainly material, the importance of materiality being capitulated by Sir Edward Coke:

For if it be not material, then though it be false, yet it is no perjury, because it concerneth not the point in suit, and therefore in effect it is extra-judicial. Also this act giveth remedy to the party grieved, and if the deposition be not material, he cannot be grieved thereby.

It is clear, given the monetary and emotional risks associated with the failure to disclose the injury, that it was a material issue. Seemingly then, his best chance of a defence (in the hypothetical situation that the charges were brought in UK courts) would be for Pacquiao to prove that the statement was not wilful, something which will be difficult in light of the previous discussion of the confusion surrounding who checked the wrong box and why.

I am not certain it is of particular value to state definitively whether charges will or will not be brought against Pacquiao because, as ever, that is for the courts to decide. However, there does appear to be value in discussing the effects on the sporting world if they were.

Ramifications within Sport

If charges were brought and Pacquiao went to trial, the ramifications of such legal action would be far reaching in sport generally. Questions would be raised concerning the defrauding of bookmakers and the disappointment of fans who had paid significant sums to spectate, wherever athletes played with niggling injuries, whether disclosed or not. The difficulties in assigning liability following drug abuses in sport which already plague the governing bodies would pale into insignificance alongside such legal questions, posing near impossible issues of proving causation and intention. Although, in an increasingly litigious culture, cases similar to the one in hand do not seem overly farfetched on either side of the Atlantic. It is conceivable that cases similar to this will become the rule and not the exception. Sport may lose the thrill of awaiting the proliferation of the victor, becoming instead an exercise in assigning liability, losing much of the essence of competition in the process.

And so whilst it is unclear whether or not Pacquiao will face trial, the fact that there is even discussion that he might serves as a stark reminder of what may lie in store for sport and the laws by which it is governed.

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Tagged: Commercial Law, Criminal Law, Sport Law

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