Can Jessica Eye Overturn Her No Contest Back to a Win?

Posted: February 8, 2014 in Uncategorized
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Update February 10, 2014Fox Sports Reports the positive test was for cannabinoids which, absent a TUE, makes the no contest order within the Texas Department of Licensing and Regulations authority as outlined below

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Several months after winning a close decision against Sarah Kaufman at UFC 166 Jesica Eye learned that the result was being changed to a “no decision“.  Although details are scarce, there is speculation that the reason underlying this change related to prescription medication Eye was taking but failed to disclose to the Texas Department of Licensing and Regulation prior to her bout.

Fox Sports reports that “Texas posted a notice on their website stating that Eye had tested positive for a prohibitive substance and was placed on a one-year probated suspension.  It took most of the day to understand what that ultimately meant, but long story short, Eye had to pay a fine and essentially not get into any more trouble or her probation for the infraction would turn into a suspension.

Eye has been vocal that she will fight to have this decision overturned and have her win restored.  Does she have a leg to stand on?  The answer is maybe. The result will likely turn on the nature of the prohibited substance.

Assuming the rumours are true and Eye failed to disclose a legitimately prescribed drug ahead of her bout that violates the Texas Combative Sports Administrative Rules. Rule 61.47(o) requires “A contestant taking prescribed or over the counter medication must inform the executive director of such usage at least 24 hours prior to the bout.

Eye’s explanation for the oversight is that “it’s a clerical mistake on my own end“.  While understandable this does not get around the strict requirement of the rule.  Having a positive test for a prohibited substance does allow the Department of Licensing and Regulation to impose sanctions with Rule 61.47(p) reading as follows:

(p) A person who applies for or holds a license as a contestant shall provide a urine specimen or blood sample or both for drug testing either before or after the bout, if directed by the executive director or his designee. The applicant or licensee is responsible for paying the costs of the drug screen. A positive test, refusal to provide a sample, failure to comply with the testing process, or attempting to substitute, dilute, mask or adulterate a sample during collection shall be considered a violation of subsection (o) and will result in an automatic 90 day medical suspension and may also result in administrative penalties and sanctions.

Rule 61.30 specifically addresses changing a bout result following a failed drug test with subsection (n) allowing a contest decision being changed where “the winner of a bout tested positive immediately before or after the bout for a substance listed in §61.47(q)

Section 61.47(q) lists the following prohibited substances:

(1) Stimulants

(2) Narcotics

(3) Phencyclidines;

(4) Barbiturates and Benzodiazepines;

(5) Cannabinoids (marijuana)

(6) Anabolic agents (exogenous and endogenous)

(7) Peptide hormones

(8) Masking agents

(9) Diuretics

(10)  Glucocorticosteroids

(11)  Beta-2 agonists (including both optical isomers where relevant) are prohibited except salbutamol (maximum 1600 micrograms over 24 hours), formoterol (maximum 36 micrograms over 24 hours) and salmeterol when taken by inhalation in accordance with the manufacturers’ recommended therapeutic regimen;

(12)  Hormones and Metabolic Modulators;

(13)  Alcohol; or

(14)  Any pharmacological substance not addressed above that is not currently approved by any governmental regulatory health authority for human therapeutic use such as drugs under pre-clinical or clinical development or discontinued; or designer drugs; or substances approved only for veterinary use.

So if the failed test relates to any of the above substances the Department of Licencing and Regulation seems within their rights to change the bout result to a no decision.  If, however, the substance is not captured in the above list Eye may have a leg to stand on in her appeal.  In these circumstances the Department can only justify their decision if

(A) the compilation of the score card of the judges shows an error which would mean that the decision was given to the wrong contestant; or

(B) there was a violation of the laws or rules and regulations governing combative sports which affected the result of any bout

Assuming the substance Eye tested positive for was not a performance enhancing drug it would be difficult to see how the non disclosure is captured by the above criteria.

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