July 13, 1992 Number 1

July 13, 1992 Number 1. Thomas C. Rapone Secretary of Public Safety One Ashburton Place, 21st Floor Boston, MA 02108 Dear Secretary Rapone: You have asked for my opinion on two cjuestions concerning the authority of the State Boxing Commission to regulate boxing or sparring matches or exhibitions that are or are claimed to be amateur in nature. You ask whether a match' at which an admission fee is charged, or at which promoters, athletes or officials receive payments, should be considered "purely amateur within the meaning G.L. c. 147, § 35 (1990 ed.), so as to exempt partcipants from the licensing requirements of that statute. You also ask whether the Commission authorized by G.L. c. 147, § 32 (1990 ed.) to assign or approve the choice of officials for amateur matches. Your request arises because the Commission, which is established within the Executive Ofhce of Public Safety, see G.L. c. 22, § 12 (1990 ed.), c. 6A, § 18 (as amended by St. 1991, c. 412, § 4), seeks clarifi- cation of its authority concerning such matches. For the following reasons, I conclude that under G.L. c. 147, § 35, the Commission itself must determine in the first instance whether a particular match is "purely amateur" in nature, and that in making this determination the Commission may properly consider any admission fee charged and any payments made to athletes, promoters, or officials. I also conclude that the Commission, in exercising its discretion under G.L. c. 17, § 32 to approve amateur boxing organizations and to issue special licenses for amateur matches, may reserve to itself the power to assign or approve the choice of officials for such matches. ' G.L. c. 147, § 35 provides that "[n]o person shall act, except in the case of a purely amateur luatch or exhibition, directly or indirectly, as physician, referee, judge, timekeeper, professional boxer or as manager, trainer or second such a boxer, at a boxing or sparring match or exhibition or as a matchmaker there- for, unless licensed by the commission . . ." G.L. c. 147, § 35 (emphasis Although G.L. c. 147 uses the terms "match." "e.\hibition." and "boul," this opinion uses only the term "match" with the understand- ing that e.xhibitions and bouts are also included. ' You have also indicated that a particular boxing organization questions whether the Commission's power to regulate amateur bo.xing has been preempted by the federal statutes concerning the Unites State Olympic Committee and associated amateur sports organiza- tions. See ,56 U.S.C. §§ 371-96 (1988). I do not address this question, in accordance with the practice of prior Attorneys General of declining to render formal opinions on questions of federal law, e.g.. 1984-85 Op. .Att'y Gen.. Pub. Doc. No. 12 at 93 (Feb.4, 1985), and because no specific statutory provision has been identified that might have such preemptive effect. P.D. 12 ^^^ added). Neither section 35 nor any other provision of chapter 147 defines "purely amateur match or exhibition." You ask whether a match would be con- sidered "purely amateur" if admission were charged, private promoters received a profit, athletes received expense stipends, and/or officials received equip- ment-rental income in excess of their expenses. 1 first note that only participants in "purely amateur" matches are exempt from licensing requirements. This indicates that the exemption extends only to those matches that are completely free of the influences that, in the view of the Legislature, warrant the more stringent statutory provisions applicable to professional boxing. The fact that the statute bars unlicensed persons from par- ticipating in matches "directly or indirectly" confirms that the scope of the prohibition is broad and supports a narrow interpretation of the exemption for "purely amateur" matches. Second, section 35 defines "professional boxer" as "one who competes for a money prize or teaches or pursues or assists in the practice of boxing as a means of obtaining a livelihood or pecuniary gain." (Emphasis added.) This indicates that in determining whether a particular match is "purely amateur," the Commission may properly examine the financial arrangements surrounding the match. Third, the definition of a "professional boxer" is not limited to those who actually box as a means of obtaining a livelihood or pecuniary gain. It also encompasses a person who "teaches or . . . assists in the practice of boxing" for such purposes. The Commission, as the agency charged with enforcing section 35 and related provisions of chapter 147, has considerable leeway in interpret- ing these statutes, and the Commission's interpretations are entitled to weight and deference in the courts. E.g., Cherubino v. Board of Registration of Chiropractors, 403 Mass. 350, 358 (1988); Massachusetts Medical Society v. Commissioner of Insurance, 402 Mass. 44, 62 (1988). The Commission has the discretion, in determining whether a person teaches or assists in the practice of boxing as a means of obtaining a livelihood or pecuniary gain, to examine any payments received by that person in connection with the match in quesUon.' The statutory language just discussed, taken as a whole, indicates that the Commission may examine the full range of financial arrangements made with respect to athletes, promoters, officials, and other persons connected with a match in determining whether the match is "purely amateur." Moreover, other provisions of chapter 147 confirm that the financial arrangements sur- rounding boxing matches are a legitimate object of the Commission's scrutiny. See. e.g., c. 147, § 32 (requiring license for match for a prize or purse or at which admission fees are charged directly or indirectly, in the form of dues or otherwise); c. 147, § 35 (providing that physicians desiring to officiate without charge at amateur matches shall be licensed without charge); c. 147, § 36 (requiring that fees of referee and other licensed officials be fixed by com- mission and paid by licensee prior to match); c. 147, § 43 (prohibiting licensees from having financial interest in boxers in specified circumstances). These provisions indicate that in determining whether a match is "purely amateur," the Commission may properly consider a range of financial issues 3 My emphasis on the term "professional boxer" should not be taken to suggest that a match that involves no "professional boxer" is ipso facto "purely amateur." 1 express no conclusion on this question, which you have not asked me to address. 140 PD. 12 going beyond direct compensation to the actual athletes involved. You have not asked for guidance on whether the Commission should clas- sify any particular match as "purely amateur." Because such a question is likely to involve some factual determinations, it is the duty of the Commission rather than the Attorney General to make this classification.' 1 conclude, however, that the Commission could, in its discretion, deter- mine that a match at which an admission fee is charged, or from which per- sons other than the athletes themselves derive income, is not "purely ama- teur," and thus that the personnel involved must obtain Commission licenses pursuant to section 35. //. Your remaining question concerns the Commission's authority under G.L. c. 147, § 32 and related provisions to assign or to approve the choice of officials for amateur matches. Section 32 provides, in pertinent part, as follows: No boxing or sparring match or exhibition for a prize or purse, or at which an admission fee is charged, either directly or indirectly, in the form of dues or otherwise, shall take place or be conducted in this Commonwealth except in pursuance of a license granted as hereinafter provided by the state boxing commission ... In the case of exhibitions or bouts held in accordance with the rules and regula- tions of such amateur organizations as may be approved by the Commission, the commission may issue special licenses without the requirement of a bond as provided in section thirty-four or of pay- ment of the annual fee. G.L. c. 147, § 32 (emphasis added). Assuming that the Commission classifies as "amateur" a match for a prize or purse, ar at which an admission fee is directly or indirectly charged, you ask whether the Commission may affect the assignment of officials at such a match.' Section 32 does not expressly confer authority on the Commission to assign or to approve the choice of officials at a particular amateur match. Section 32 does, however, grant the Commission broad discretionary powers in the area of amateur matches: the Commission may approve amateur organizations.*^ and the Commission may issue special licenses for matches held in accordance * E.g., 1972/73 Op. Att'y Gen. No. 46, Pub. Doc No. 12 at 149 Oune 20, 1973) (stating that question whether particular games were so sim- ilar to beano as to come within provisions ol beano statute was for Commissoner of Public Safety rather than Attorney General to resolve). Your question is not limited to those matches that would be considered "purely amateur" for the purposes of section 35. The Commission might conclude that a match involving some form of prize, purse, or admission fee was "purely amateur," so as to exempt its various participants from the licensing provisions of section 35, yet by reason of the prize, purse, or admission fee, the match itself would still require a license under section 32. 1 do not reach the question whether an amateur or "purely amateur" match that does not involve a prize, purse, or admission fee nevertheless requires a license under section 32. It appears that the Commission's role is to approve amateur organizations, not those organizations' rules and regulations. It is a "'gen- eral rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is some thing in the subject matter or dominant purpose which requires a different interpretation."' Byim v. School Committee of Boston. 411 Mass. 264, 271 (1991) (quoting Moiilton v. Bwokline Rent Control Board, 385 Mass. 228, 230-31 (1982); Driaik v. Board of Health of Haverhill, 324 Mass. 129, 133 (1949)). The phrase "as may be approved by the commission" thus is presumed to modify the last antecedent, "such amateur organizations," rather than "mies and regulations." The insertion of the word "such" prior to "amateur organizations," rather than prior to "rules and regulations," confirms that it is "amateur organizations" to which the modifying phrase applies. The distinction may be of little significance, however, because in considering whether to approve amateur organizations, the Commission may clearly examine those organizations' rules and regulations. P.D. 12 141 with the rules and regulations of approved amateur organizations.' The Commission exercises these discretionary powers in accordance with the over- all purposes of the statutes regulating boxing. The Commission may determine that these statutory purposes are best served by reserving to the Commission the power to assign or to approve the choice of officials at amateur matches. This is an application of the familiar principle that "[d]iscretion to deny completely an application includes the power to grant less than the full privilege." Fragopoulos v. Rent Control Board of Cambridge, 408 Mass. 302, 304 (1990) (approving rent control board's issuance of conditional removal permit; citing Goodwin v. Department of Public Utilities, 351 Mass. 25, 26 (1966). Accordingly, the Commission may decline to approve those amateur organizations that are unwilling, in their rules or regulations or by agreement with the Commission, to permit the Commission to assign or to approve the choice of officials. Alternatively, the Commission may approve amateur organizations but decline to issue special licenses for matches held in accordance with the rules and regulations of those organizations unless the Commission, as an express condition of the license or otherwise, retains the power to assign or to approve the choice of officials." In sum, 1 answer your first question by concluding that the Commission possesses the discretionary authority to determine that a match at which an admission fee is charged, or from which persons derive income, is not "purely amateur" within the meaning of G.L. c. 147, § 35. 1 answer your second ques- tion by concluding that the Commission, in the exercise of its discretionary authority under G.L. c. 147, § 32 to approve amateur organizations and issue special amateur match licenses, may reserve to itself the power to assign or to approve the choice of officials at amateur matches. Sincerely, Scott Harshbarger Attorney General ^ " The word 'may' in a statute commonly imports discretion." Turnpike Ammement Park, Inc. v. l.kemins Commission of Cambridge, 343 Mass. 435, 437 (1962). "The word 'may' is one of permission and not of command.'" Cohen v. Board of Water Commissioners, Fire District No. 1, Soutli Hadley, 411 Mass. 744, 751 (1992) [quoting Brennan v. Election Commissioners of Boston, 310 Mass. 784, 786(1942)). ^ This is not to say that the Commission may require officials at purely amateur matches to obtain Commission licenses and pay licens- ing fees to the Commission. Section 35 expressly exempts such officials from licensing requirements. But this exemption does not bar the Commission from exercising its other powers to regulate the choice of officials, so long as there is no per se exclusion of unlicensed persons. 142 P.D. 12