Drostanolone Image

Anderson Silva has tested positive twice for doping.  First for the steroid drostanolone during an out-of-competition test taken on January 9, 2015 and again at a post fight test taken on January 31.

Silva adamantly denied doping with the same vigor of OJ Simpson vowing to find the real killer, being quoted as follows:

I have not taken any performance enhancing drugs. My stance on drugs is and will always be the same. I’m an advocate for a clean sport…I’m consulting with my advisors right now to explore all of my options and intend to fight this allegation and clear my name. I will not make any further comments until my team advises me to do so.”

Now Silva has apparently decided to change course.  He will reportedly admit to taking drostanolone not to cheat, but rather to recover from injury.  MixedMartialArts.com quotes from a Brazilian publication which reports as follows:

Anderson will deny he tried to cheat to beat the American. However, he will admit he made use of the anabolic steroid drostanolone during recovery from the severe fracture suffered against Chris Weidman at the end of 2013.

The Brazilian will argue that the anabolic used as a remedy to recover the injured site. Besides the famous boost in athletic performance function, drostanolone can also be used to strengthen the muscles. At the beginning of recovery, fearing that he could never have a normal or even stay without walking, he used the anabolic with this second order.

The strategy of seeking sympathy by pinning the use of the steroid on his previous horrific leg fracture may have worked if that was Silva’s initial move.  This is why a staple of legal advice is “shut up”.  Out of Court statements rarely do any good other than to incriminate an individual.  Here we have an outright denial followed by a reported new strategy to apparently minimize fallout.  In other words, if this report is accurate, we have doping followed by lying.   Inconsistent statements can kill credibility and all this before Silva’s hearing even begins.

Leaving public relations aside, it is no excuse to have a legitimate medical reason for doping if you don’t seek clearance ahead of time with relevant Athletic Commissions, not after being caught.

The Nevada Athletic Commission defers to WADA standards in granting TUE’s.  These could be applied for steroids in limited circumstances.  If Silva’s doctors felt he needed steroids the only proper course of action would be to apply to the NAC and try to satisfy the following test –

1. “The Athlete would experience a significant impairment to health if 
the Prohibited Substance or Prohibited Method were to be withheld in 
the course of treating an acute or chronic medical condition.” (Article 
4.1 a. of the International Standard for TUEs.)

2. “The Therapeutic Use of the Prohibited Substance or Prohibited 
Method would produce no additional enhancement of performance 
other than that which might be anticipated by a return to a state of 
normal health following the treatment of a legitimate medical 
condition. 

3. “There is no reasonable Therapeutic alternative to the Use of the 
otherwise Prohibited Substance or Prohibited Method.” (Article 4.1 
c of the International Standard for TUEs.)

4. “The necessity for the Use of the otherwise Prohibited Substance or 
Prohibited Method cannot be a consequence, wholly or in part, of 
prior non-Therapeutic Use of any Substance from the Prohibited 
List.” (Article 4.1 d. of the International Standard for TUEs.)

Now, for perhaps the most important question, if a TUE was sought, should one have been granted?  I reached out to orthopaedic surgeon Dr. Benjamin who provided the below reply:

Dr Benjamin Tweets re Drostonolone

A recurring theme at this website is pointing out the real dangers that come with Rapid Extreme Weight Cut practices in MMA. Documented harm has become so common that my list of injuries from Rapid Extreme Weight Cut practices has to be amended on a far too frequent basis.

Kirik Jenness, owner of MixedMartialArts.com and official record keeper for Canadian and US MMA has been equally vocal about this harmful practice and the need for reform.  In his latest article Jenness notesWeight cutting has killed a fighter. It has very nearly killed many more. It has led to the cancellation of countless fights. Due to the attendant lack of fluid cushioning around the brain, it has surely led to brain damage.”

So what is the solution?  I’ve said it before and will keep repeating it.  The danger is dehydration. The solution, therefore, is to add a hydration requirement when making weight. It does not matter if the weigh in is the day before or the day of the fight, the fighters must weigh in and be hydrated at the same time.  This can be measured cheaply and effectively.

After mentioning this repeatedly on the Underground forum, a South Carolina ringside physician agreed and provided the below practical breakdown which is worth republishing here.  Regulators need to take note.  There is an inexpensive and effective fix to the dangers of Rapid Extreme Weight Cuts.  The sport does not need another death or catastrophic injury before addressing this.

The more I have perseverated about this over the last year or so, the more I think that the fairly simple to implement process that Erik has been mentioning recently is probably the best immediate solution. Keep weigh ins the day before the event so they can be a public, buzz building spectacle like they are now, but add a simple refractometer measurement of urine SG for all the fighters just before the weigh in. A handheld refractometer is ~$500, and can simply be rinsed under a faucet between uses. Someone could test all the fighters on a card in about half an hour just standing at the sink in a bathroom. Fighter comes in, pees in a cup, it gets tested, quick rinse and next guy comes in. The person using the refractometer does not even have to be a medical person, you could train someone how to do it in a minute or two. If the SG is OK, you get to weigh in, if not, you can’t weigh in until your SG falls below the threshold.
There would be some growing pains for sure, and I would expect that initially a number of fights would have to be scrapped at the last minute. However, fighters and trainers would quickly learn what weight they need to fight at to pass the test, and I think for the most part the same guys that are fighting each other now would be fighting each other then, just at a heavier, hydrated weight. I think we will see better fights as well since guys would be performing without having gone through the hell of cutting and rapid rehydration that most do now.

Doing weigh ins like this would eliminate the expense and paperwork of certifying a fight weight like high school wrestling does, and since you would take the SG test close to the event it would make the most common method for “cheating” the SG test more risky than it would be to do it “out of competition” earlier in the year.

The first person to implement an attempt to limit weight cutting is going to draw intense criticism- particularly if it results in fights being scratched

However, I think ultimately it will benefit the sport and in retrospect fans will be glad that it was done

Former UFC Fighter Josh Neer is making news after video surfaced of him violently finishing a gym fight against an opponent who apparently had been heckling Neer on social media and accepted an invitation to fight.

The video was quickly taken down, but copies of course survived.  Here is the clip –

Shorty after Iowa Athletic Commission Executive Director Joe Walsh told TMZ Sports that “We are aware of the situation. I have our legal team taking a thorough look at our rules. We’re checking to see if we have anything on the books that covers this.”

Although a quick look at Iowa Code Chapter 90A appears to show that the Commission has no ability to lay sanctions following this gym beatdown, not all jurisdictions are equally powerless.  (Update February 27, 2015the Iowa Commission has now closed their investigation concluding they indeed are powerless over this situation)

For Canadian gym owners,for example, the not so secret tradition of ‘green lighting’ and ‘smokers‘ can come with legal consequences.

Under Canadian law, section 83 of the Criminal Code prohibits ‘prize fights’. The name is misleading because no ‘prize’ needs to be on the line for the prohibition to be triggered.  All that matters is that the fight is “an encounter or fight with fists, hands or feet between two persons who have met for that purpose by previous arrangement made by or for them“.  From there, unless the bout fits one of the exceptions (being a sport on the Olympic Programme or a sport regulated by a Provincially designated athletic commission) the bout remains illegal.  Here, this being an MMA fight agreed to before hand, it would clearly be captured by the broad language of Canada’s Criminal Code.

There is no ‘gym fight‘ exception to the Criminal Code prohibition.  Gym owners should be weary in allowing unsanctioned fights occur on their premises as, depending on the jurisdiction, doing so can expose the participants to criminal prosecution.

Adding to this site’s archived judgments of lawsuits addressing UFC piracy claims, reasons for judgement were released this month by the US District Court, D. South Carolina, ordering a commercial establishment to pay $37,757 following piracy of UFC 135.

In the recent case (Joe Hand Promotions, Inc. v. Upstate Recreation) the Defendants operated a Nightlclub.  They displayed UFC 135 but did not purchase the commercial sub-licencing rights from the Plaintiff to do so.  The Plaintiff sued and obtained default judgement.  The nightclub had a maximum occupancy of 300 people and based on this the sublicencing fee would have been $2,250.  The evidence established that the most people present during the bouts was eighteen.

In awarding $10,000 in statutory damages, $25,000 in enhanced damages and attorney fees and costs Magistrate Judge Jacquelyn Austin made the below recommendations which District Judge Timothy Cain accepted

In line with awards recommended and/or awarded in this District for similar violations, the undersigned recommends a statutory damages award of $10,000. See Joe Hand Promotions, Inc. v. Rascals Café, LLC, C/A No. 4:11-2135-TWL-KDW, 2012 WL 4762142, at *5 (Aug. 31, 2012), Report and Recommendation adopted by 2012 WL 4762452 (D.S.C. Oct. 5, 2012) (awarding five times the license fee); Todd, 2012 WL 2178851 (awarding approximately five times the license fee). Here, the maximum statutory award is less than five times the license fee Defendants should have paid to legally broadcast the Program…

Here, in addition to the admissions based on Upstate Recreation’s default and Ruegsegger’s failure to respond to Plaintiff’s Requests for Admissions, Plaintiff’s President avers that the Program could not have been “mistakenly, innocently, or accidentally intercepted.” [Doc. 37-6 ¶ 9.] Further, Southern paid a cover charge of $25 to enter Leeg’s Nightclub. [Doc. 37-4 at 1.] Although the Court finds that Defendants’ violations were willful and that more than nominal damages should be awarded to deter future violations, the Court does not conclude that the maximum enhancement is appropriate in this case. As such, the undersigned recommends an enhanced damages award of $25,000, or twoand-one-half times the statutory award, in line with awards recommended and/or awarded in this District for similar violations.See Rascals Café, LLC, 2012 WL 4762142, at *5 (awarding three times the statutory award); Todd, 2012 WL 2178851 (awarding two times the statutory award).

While not a case involving combat sports, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating that a sports league can be liable in negligence when they fail to take reasonable steps to ensure their rules of play are being followed.  There are lessons to be learned in cases such as this when it comes to issues such as Rapid Extreme Weight Cut practices and PED abuse in combat sports.

In today’s case (Forestieri v. Urban Recreation Ltd) the Plaintiff was injured in a rec league soccer game organized by the Defendants.  The Rules and Code of Conduct for the co-ed league made clear that there would be no contact or rough play of any sort.  Specifically slide tackles were banned.

The Plaintiff was injured by a slide tackle conducted by an unknown player, John Doe.   All that was known about John Doe is “that he was not registered as an FDU player in the League for the 2011 soccer season.

The Court found the Defendants liable for John Doe’s actions.  The court noted by letting an unregistered player participate and in not informing that participant of the specific rules of the league they were negligent.  In reaching this conclusion Mr. Justice Macintosh provided the following reasons:

[27]         In her examination for discovery before the summary trial, Ms. Hernandez acknowledged:

·       that her duty as the team captain was to ensure that communication from the League was passed on to the players and that the players were playing within the Rules;

·       that she never discussed with the FDU team what kinds of physical play were illegal in the League;

·       that having the FDU team members review the Rules and the Code of Conduct was important for helping to avoid injuries to other players in the League;

·       that it would be dangerous to allow players to participate in a game if they were unaware of the Rules and the Code of Conduct;

·       that a person who was not registered on the FDU team, and had not read the Rules and the Code of Conduct, should not have been playing in the League; and

·       that if an unregistered player was playing, she did not believe such a player had read the Code of Conduct.

[28]         In 2011, Ms. Hernandez could have had Zeyna Berdan ensure that the players knew the Rules.  However, she did not delegate that task to Ms. Berdan.  There is no evidence that either of the two ever turned their mind to having Ms. Berdan ensure that the players were either registered or knew the Rules, or both…

[44]         What act or omission by Ms. Hernandez could cause her to breach her duty to Mr. Forestieri?  He complains that:

·       she and FDU failed to register John Doe, the player who injured Mr. Forestieri;

·       she and FDU failed to inform John Doe of the League’s Rules and Code of Conduct; and

·       she and FDU failed to enforce the Rules and Code of Conduct.

[45]         In my view, those complaints are merited.  Ms. Hernandez and FDU did not take reasonable steps to ensure that those playing for FDU knew the League Rules.  Ms. Hernandez could have seen to that directly or by seeing that Ms. Berdan acted on her behalf in performing that task.  Between them, they should have ensured that only registered players who knew the Rules were playing, or, at least, that all who played knew the Rules.

[46]         As it was, the omissions resulted in John Doe playing for FDU when he probably thought he could slide tackle.  Mr. Forestieri has proved, on the balance of probabilities, that Ms. Hernandez failed to take reasonable steps to ensure that John Doe knew the rule prohibiting slide tackles…

[55]         I have found that Ms. Hernandez and FDU owed a duty to Mr. Forestieri, which they breached.  The breaches by Ms. Hernandez and FDU resulted in John Doe playing on February 6, 2011, while probably not knowing of the prohibition against slide tackles.  On the balance of probabilities, those breaches resulted in John Doe slide tackling Mr. Forestieri and causing him the knee injury he suffered that day.

[56]         I therefore find that Ms. Hernandez and FDU are liable in negligence for the injury suffered by Mr. Forestieri.

Screenshot UG Story Addressing PED Reform

Update February 23, 2015 –  I’d like to thank MMA’s official record keeper, Kirik Jenness, for reproducing portions of this story and featuring it prominently at his flagship site mixedmartialarts.com.  I encourage anyone interested in the subject to visit there and engage in the dialogue.

______________________________________

Yesterday the UFC announced their plans for stricter Performance Enhancing Drug testing, with more robust funding for regulating Athletic Commissions who wish to test more aggressively and also plans for the UFC to conduct their own out of competition tests.

While the first part of the UFC’s plan is easy to achieve, it just takes money and the will of athletic commissions to meaningfully test, the latter comes with legitimate legal and logistical problems.

Zuffa CEO Lorenzo Fertitta acknowledged that the plan is still a work in progress but given the recent spate of high profile drug test failures the plan needed to be announced even though it is unrefined.  In short the UFC plans to contract with a third party provider to set up and implement the testing program.  The UFC will need to fund the program but otherwise stay out of its day to day operations to avoid any conflict of interest.

That being said, to meaningfully reach this goal the UFC needs to do more than write a large check.  Legal, logistical and contractual arrangements need to be made.  Below are a few practical problems that need to be addressed.

Unless specifically allowed in a fighter’s existing contract, fighters will need to agree to cooperate with Zuffa’s out of competition testing program.  Zuffa’s standard contract clause regarding PED testing deals with athletes agreeing to comply with Athletic Commission testing, not a random year round Zuffa testing program.

Zuffa Fighter Contract Drug Testing Clause

As independent contractors fighters don’t need to consent to such a term without consideration.  This means that Zuffa needs new contracts to make this program a reality.  They can start incorporating the needed terms in all new contracts going forward but given that most of the UFC roster is under present contract these need to be renegotiated to make the plans a reality.  Here are some of the terms that will need to be addressed.

a.  To truly be able to test athletes at random, testers must be able to contact fighters on short notice.  This means fighters will have to agree to notify Zuffa or the testing agency of their whereabouts on an on-going, year round basis.  Programs such as this exist and complying with this is not particularly onerous but forced compliance must be contractually agreed.

b.  Zuffa noted the WADA code would likely be used for this program so fighters would need to contractually agree to comply with the  WADA Prohibited List of banned substances at all times during the course of their contract.

c.  An agreement will need to be reached  about the potential range of penalties a fighter can be exposed to for failing to cooperate with the program, be it by not cooperating with providing test samples or for failing a test.  These are matters which are normally collectively bargained in major sporting organizations but here, with no fighters association, these terms need to be individually, and uniformly, agreed upon.

d.  If Zuffa intends to share sample results with Athletic Commissions for them to administer punishment fighters will need to consent to this disclosure of their otherwise private information.

e.  If Zuffa intents to act as judge jury and executioner for violations of the program due process rights will need to be established allowing fighters to challenge the evidence against them.   As a practical matter it would make sense for the parties to agree to some sort of formal arbitration process using the rules that are already in place with the Nevada Athletic Commission as this is the default rule-set Zuffa and Fighters agree to where the UFC self regulates events.  Whatever the process, it will need to be contractually addressed.

f.  If the test results are intended to be released to the public the fighters will need to agree to this as well.

Fans of combat sports should support the intended reforms Zuffa announced at yesterday’s press conference but good intentions are not enough.  Fighter cooperation will be needed to make this a reality.  As Josh Samman notes, athletes should embrace this with open arms.  It is in the sport’s long term interests for all parties to cooperate in making the needed concessions to make a meaningful out of competition testing program a reality.

Following the tragic death of amateur kickboxer Dennis Munson Jr., the State of Wisconsin is now looking to expand the scope of their combat sports regulation to also include kickboxing.

John Diedrich, a reporter from the Milwaukee Wisconsin Journal Sentinel, who has been persistent in his coverage of the aftermath of Munson Jr’s death, reports as follows:

A bipartisan group of lawmakers has launched a push to regulate kickboxing and other combat sports in Wisconsin, in response to the death last March of amateur Milwaukee fighter Dennis Munson.

The draft of a bill being circulated seeks to close a gap in the law by regulating all “unarmed combat sports” in Wisconsin, according to a memo sent to lawmakers from state Rep. Joel Kleefisch (R-Oconomowoc), state Sen. Rob Cowles (R-Allouez) and state Sen. Dave Hansen (D-Green Bay).

Wisconsin law regulates boxing and mixed martial arts, a combination of disciplines that includes kickboxing. However, the state does not regulate stand-alone kickboxing events.

“The current rules and regulations governing these types of events are in place to ensure the safety of the participants,” the memo sent this week to other lawmakers reads. “We see no reason why those same safeguards should not be expanded to all forms of unarmed combat.

Earlier today UFC President Dana White, CEO Lorenzo Fertitta and Chief Operating Officer Lawrence Epstein held a press conference acknowledging the extent of the doping problem in elite MMA.

Fertitta acknowledged the need for overhaul.  The high rate of out of competition drug test failures was contrasted with the lower in competition rate (when athletes know they will likely be tested and can cycle off prohibited substances) with the following damaging slide noting that the doping rate is “alarming

UFC 2013 2014 Doping Summary

They stated that, effective July 1, 2015, all UFC fighters will be subject to random performance-enhancing drug testing.  This is a promise that was made before and then withdrawn, or at the very least delayed, with White statingOur legal team completed screwed that up. We f—-d it up, and we will f–k it up again. That’s what the commission is there for

Given the revolving door of doping busts in the sport, backing out of random out of competition testing is no longer an option for the world’s highest profile MMA organization .  The UFC has used the right words in acknowledging a problem exists.   Now the devil will be in the details to see that they follow through with a properly funded and meaningful year round program.  The following basic template for the proposed enhanced testing program was laid out:

UFC Template of Enhanced Testing Policy

I will update this story as further details of the UFC’s anti doping program are revealed.

The audio of the full press conference can be found here

In the latest decision addressing damages for piracy of Pay Per View broadcasts, reasons for judgement were released last week by the US District Court, E.D. North Carolina, assessing damages for piracy of UFC 116 by a private club.

In last week’s case (Joe Hand Promotions, Inc. v. Johnson) the Defendant operated a private club which broadcast UFC 116 without purchasing the licencing fee from the Plaintiff.  The Plaintiff sued alleging satellite signal piracy.  The Defendant failed to respond resulting in default judgement against the Defendant club.

The Plaintiff sought $60,000 in damages but the Court found this amount excessive and awarded damages slightly above the statutory minimum.  In assessing damages at $1,500 District Judge Terrence Boyle reasoned as follows:

As in previous cases, the Court believes that awarding a flat rate of damages, linked to the maximum occupancy of the establishment and the egregiousness of the violation, is most consistent with the aims of the statute and with the quantum of harm actually suffered by Joe Hand. Section 605 provides that when a court awards statutory damages, it should fasion a damages award that is “just.”§ 605(e)(3)(C)(i)(II). Although these calculations are speculative, “some speculation with respect to damages is permissible where, as here, a defendant’s default has prevented damages from being computed with greater certainty.” Kingvision Pay-Per-View, Ltd v. Arnoat, No. 06 Civ. 4811, 2007 WL 2076632, at *6 (S.D.N.Y. July 13, 2007).

Joe Hand calculates rates for its contracts based on a maximum occupancy. [DE 12-2]. The rate card attached to plaintiff’s Motion describes the prices charged for a lawful sublicensing agreement, which vary based on the capacity of the entity broadcasting the Program. According to the rate card and attached affidavit, the Club would have paid $900 to broadcast the Program lawfully. [DE 12-3, 12-2]. Absent any indication of aggravating factors, such as repeat violations or substantial monetary gains, this Court finds that a damage award of the statutory maximum would be excessive and out of line with awards in similar cases.

As to enhancement, there is no question that the Club intercepted and broadcasted the Program willfully and for commercial advantage. Joe Hand alleges that the Program was encrypted and made available only to its paying customers, therefore it is unlikely that defendants accidentally received the Program. In light of the circumstances and the deterrence goal of§ 605, the Court awards statutory damages of $1,000.00. The Court multiplies the statutory damages by a willfulness factor of 1.5, for a total damages award of $1,500.00…

Based on the foregoing, plaintiff’s Motion for Default Judgment is GRANTED. [DE 11]. The Clerk of Court is DIRECTED to enter a judgment against defendants in the amount of $1,500.00. In addition, attorneys’ fees are awarded to plaintiff Joe Hand in the amount of $1000.00. Costs are awarded to plaintiff Joe Hand in the amount of $475.00.

70% of UFC Roster Using PED’s?

Posted: February 16, 2015 in Uncategorized

Recently MMA personality Front Row Brian suggested that the UFC sent anonymous samples to the US Anti Doping Agency for testing and that “about 70% of the samples came back dirty“.  It was suggested that this is the reason why the UFC “decided to abandon their out of competition drug testing program“.

Here are the tweets:

FRB Tweets Re UFC USADA Testing

I have reached out to the UFC and to the US Anti Doping Agency for confirmation whether this is accurate.  Below is the inquiry I sent to both organizations last week.  As of today neither organization has responded –

I am a lawyer who writes about legal issues surrounding mixed martial arts (combatsportslaw.com) and write with an inquiry in this capacity.

It was recently rumored on line that the UFC sent a handful of blind samples to the USADA for testing to establish a baseline of the extent of doping in the sport and that a high percentage of the samples yielded positive results.  I write to inquire if there is any truth to this rumor and if so if there is any information your organization can share.

I look forward to your timely reply.

Yours truly,

Erik

Whether the above is true or not, recent weeks have highlighted that the extent of the doping problem in professional Mixed Martial Arts is severe.  Appreciating that positive tests are just the tip of the iceberg of doping in professional sports, official MMA records keeper Kirik Jenness opines “that 90% of top fighters have used PEDs at some point in their career.

The backlash is apparently not going unnoticed with the UFC scheduled to hold a press conference later this week.  When asked about what will be covered Dana White noted during his last press conference that the conference will cover “lots of bad shi*t.  We’re not going to be talking about fun things.  We’ll address all the things that have happened lately and what we’re going to do, what’s gonna happen“.