At this week’s Canadian Bar Association combat sports legal conference I asked the UFC’s lawyer, Michael Mersch, whether Zuffa has any plans to conduct regular, random, out of competition PED testing for their contracted fighters. In short his answer was no however the details of his reply give good insight that, should a lawsuit ever arise following injury at the hands of a PED using opponent, Zuffa’s strategy will be to deflect liability to government regulators. It is a strategy that just may work and for this reason Athletic Commissions must take great care in updating PED testing practices to reasonable standards.
Mersch replied as follows:
“The UFC has a policy of performance drug enhancement testing for all of its fighters when they come into the UFC. We obviously want to start the process where we know whoever we are bringing into the organization is clean. From that point on, of course, we are always working, consistently working, with Athletic Commissions who are in charge of drug testing above and beyond that. There are different athletic commissions that test at different levels. Some will just test a few fighters some will test more. There are certain jurisdictions that the UFC self regulates in because there are not athletic commissions or federations everywhere in the world, and when that happens we test every single fighter. So literally every single fighter on the card, when we’re in charge of it, gets tested. So there is no question that we as a company are 100% in favor of drug testing. We support it.
Again we have some other concerns outside of that though with respect to the fact that our fighters are independent contractors. When they’re signed up to fight in a certain jurisdiction we have to comply with the laws of that jurisdiction. We don’t necessarily take it upon ourselves to assume that we should be doing more. We defer to those individual commissions. “
Lawyer David Goldstein then adds
“one thing that comes up, and I think someone blogged about it recently, the question of going to the PED point, if you consent to a fight between two clean athletes and one you find out after the fact has been all kinds of juiced up and all kinds of PED’s, does that vitiate the consent to that fight? Did I think I was fighting the strongest that guy can be and now I’m actually fighting that guy on substances XYZ, would that be a right to claim, to file suit? It’s an interesting question“
It is a question that likely will be judicially addressed at some point in time.
When that time comes recent comments from the UFC’s Lorenzo Fertitta create an even stronger case for commission liability. Fertitta has been vocal that the UFC would finance Athletic Commission efforts to conduct random, out of competition testing. Appreciating that this will strip an Athletic Commissions ability to hide behind budgetary restrictions, this creates an even greater need for commissions to seriously consider random out of competition tests of all licence holders.
The ability of commissions to conduct out of competition testing depends on jurisdiction. Two issues that come into play are duration of combatant licences and statutory PED testing powers.
Some combatant licences are only good for a single bout. Other jurisdictions issue them for a set time frame, typically one year. Different jurisdictions also have different rules about when PED tests can take place with some only calling for post bout testing while others can test any time during a license term.
If regulators are serious about cleaning up the sport a jurisdiction with year long licencing and out of competition testing abilities should take Fertitta up on his offer and conduct random, comprehensive tests on all licence holders. Nevada is one jurisdiction that can accomplish this if they have the will to do so.
Under Rule NAC 467.012(7) Nevada licences are valid for the entire calendar year in which they are granted. NAC 467.850(5) allows for testing out of competition reading as follows “An unarmed combatant shall submit to a urinalysis or chemical test if the Commission or a representative of the Commission directs him or her to do so.“. This language is broad an allows comprehensive PED testing.
Nevada, or another jurisdiction with similar powers, would be wise to be a leader, take the UFC up on their financing offer, and conduct comprehensive PED tests to all currently licensed combatants. This will not only weed out abuse but bring integrity to Athletic Commissions in their role as safe keepers of the sport.