Combat Sports Law

UFC Fighters guilty of doping violations that are used to leniency from Athletic Commissions by using excuses such as “I took some tainted supplements” or “it must have been in an energy drink” are in for a rude awakening under the new UFC/USADA Anti-Doping Policy.

There are no shortage of USADA arbitration decisions to choose from to see just how little weight is given to excuses which have received sympathy in the MMA Regulatory sphere to date.  To this end I will add case summaries here from not just combat sports but other sports subject to the World Anti-Doping Code that the UFC Anti-Doping Policy is based on.

Earlier this year an Arbitration Panel upheld a two year ban to a first time offender for taking Ephedrine in competition (USADA v Asfaw) . The athlete was a marathoner and her ephedrine use was not intentional.  The drug was given to her while in a foreign country and suffering from severe allergies.  The athlete admitted wrongdoing in a timely fashion asked for leniency due to ignorance playing a role in ingesting the substance.  The arbitration panel found that the athlete’s lack of any due diligence in investigating the substance contents worked against her request for leniency.  In upholding USADA’s two year ban the panel ruled as follows

5.35 In this case Respondent admitted that she took an Ephedrine pill on the morning of her competition, therefore, there is no dispute that the substance was taken in-competition, meaning that the full standard of care described in Cilic should apply. Accordingly, pursuant to Cilic the standard to which the Respondent was accountable was to:

(i) read the label of the product used (or otherwise ascertain the ingredients),

(ii) cross-check all the ingredients on the label with the list of prohibited substances,

(iii) make an internet search of the product,

(iv) ensure the product is reliably sourced and

(v) consult appropriate experts in these matters and instruct them diligently before consuming the product.

…

5.52 The Panel finds that the following factors do not favor the requested reduction in this case:

– Ms. Asfaw took a medication, the only information about which was written in Chinese, a language she does not know, understand, or read.

– Ms. Asfaw did not undertake any research about the product or its contents before ingesting it, let alone compare the product name or its ingredients against the WADA Prohibited Substances List; indeed she undertook no other effort whatsoever to review the contents of the medication and her obligations to avoid violating the antidoping rules.

– Ms. Asfaw did not research the product on the Internet and did not verify its contents and the ability to use it in the period around the competition date with any other person or doctor.

– Ms. Asfaw was aware of other doping cases in her sport, but did not draw any necessary conclusions from them for her own behavior.

In sum, the Respondent disregarded even the most basic anti-doping obligations of an athlete, and she undertook no affirmative measures to protect herself. Normally in these cases a tribunal is able to list factors favoring the requested reduction and it is noteworthy here that the Panel finds no such ameliorating factors to be present.

5.53 The subjective factors that 1) Ms. Asfaw is an international athlete, having competed internationally for two different countries, and 2) she lacked any basic anti-doping education from any relevant organization, were considered by the Panel, but such factors do not outweigh Ms. Asfaw’s lack of overall diligence in her anti-doping obligations under the circumstances. While she may have lacked anti-doping training, she is neither young nor inexperienced. When considering the list of factors set forth above, the Panel finds it significant that Ms. Asfaw is an active international competitor and yet she undertook no fundamental protections or otherwise had any apparent consciousness of the anti-doping rules required of all competitors in sport. The Panel views this athlete’s actions in this regard as grossly negligent or even reckless, though not intentional, but nonetheless there is no basis for a reduction in fault under Article 10.4 of the WADA Code.

5.54 The Panel inquired at the hearing and Respondent’s counsel stated that she was relying completely on Article 10.4 of the WADA Code and not asserting any arguments under or otherwise invoking WADA Code Articles 10.5.1 or 10.5.2, so the Panel did not consider those provisions, a waiver having been made on the record.

5.55 The Panel accepts that this is the first violation by Ms. Asfaw. The Panel further accepts that Ms. Asfaw consumed the Ephedrine in order to address her medical condition, and that she did so with no intention to enhance her performance or to violate any rules. The Panel wishes to make clear that Ms. Asfaw is not a cheater and exhibited no intention to violate any rule; she was merely completely ignorant of the rules in place governing doping and her need to protect herself from an inadvertent positive test, and she had no wish to breach any such rules. The Panel is appreciative of Ms. Asfaw’s immediate disclosure of the medication which she had consumed and her frank and open testimony. Perhaps the system failed her insofar as it did not highlight sufficiently for her the relevant rules governing anti-doping measures in sport; there certainly was no evidence she ever received any training on such rules and her conduct was so reckless that no individual who was aware of the anti-doping rules would ever reasonably do what she did, thereby demonstrating her lack of education. It is not clear where the fault with the system lies, whether with USADA, WADA, or the IAAF (clearly she bears one hundred percent of the personal fault of failing to take precautions to avoid ingesting a Prohibited Substance incompetition). Nevertheless, under these circumstances, she is still at fault and there is no basis for a reduction of the two-year period of ineligibility. The Panel is bound to follow the requirements of the WADA Code in these matters, regardless of any sympathy the Panel members have for the situation in which Ms. Asfaw finds herself

5.56 Accordingly, Respondent shall serve a sanction of two (2) years duration