Update October 24, 2014 – This week UFC Executive Lawrence Epstein provided an interview addressing the situation justifying their actions stating “we’re not in the drug testing business“. This quote, if anything, does not help the UFC’s position but in fact highlights the need of why the organization should have received medical advice before going public with the test results and stating that Le violated the UFC’s PED policies.
After self-regulating UFC Fight Night 48 in Macau the UFC implemented drug tests of Cung Le. According to a Zuffa press release Le “tested positive for an excess level of Human Growth Hormone” and was initially suspended for 9 months and shortly thereafter the suspension was unilaterally raised to 12.
After media scrutiny the UFC agreed to allow Le to arbitrate the decision. Before the hearing Zuffa rescinded the suspension acknowledging that they had received ‘medical advice‘ suggesting that the test results did “not prove that he took performance-enhancing drugs before the August 23rd bout“.
Le vehemently denied taking HGH throughout the ordeal and his reputation was undoubtedly tarnished following Zuffa’s initial press release. The question now is did the press release cross the line into defamation and if so, will Le take legal action?
Generally, for a defamation lawsuit to succeed the Plaintiff must prove
(1) a false and defamatory statement
(2) an unprivileged publication to a third person
(3) fault, amounting to at least negligence
(4) actual or presumed damages
If the defamatory communication imputes a “person’s lack of fitness for trade, business, or profession,” or tends to injure the plaintiff in his or her business, it is deemed defamation per se and damages are presumed.
Zuffa’s statement clearly struck at the heart of Le’s fitness in his profession so damages can be presumed. The key question is was their initial press release false? Here is the statement in its entirety with the key part in bold-
UFC middleweight Cung Le tested positive for an excess level of Human Growth Hormone in his system following his fight at UFC Fight Night in Macao, China on August 23. Due to his positive test result, Le was suspended by the UFC and notified that he violated the UFC Fighter Conduct Policy and Promotional Agreement with Zuffa, LLC. The UFC has a strict, consistent policy against the use of any illegal and/or performance-enhancing drugs, stimulants or masking agents by our athletes. Le will serve a nine-month suspension and, at its conclusion, will need to pass a drug test before competing in the UFC again.
The test results were flawed according to anti-doping scientist Dr. Don Catlin who stated that “I think (the test done by the UFC) is useless. I wouldn’t pay any attention to it all“. The test arguably did not reveal ‘an excess level‘ of HGH as the test was taken “following his fight” and HGH in blood “can increase 10‐fold during prolonged moderate exercise”. So if the levels were increased from resting but consistent with the findings one can expect after a rigorous MMA bout the statement may be false.
If Zuffa failed to obtain ‘medical advice‘ before issuing their initial statement negligence can be made out.
Le has two years to take legal action under Nevada law. Given that he is at the twilight of his career it would not be surprising if he turns to the courts to seek damages for the harm this has taken on his reputation.
While the UFC can be applauded for implementing PED testing in jurisdictions without formal Athletic Commissions, the teachable moment here is that PED testing is a complex undertaking and is best left to an independent, arms length and experienced third party.