Combat Sports Law

Update  December 15, 2015- USADA’s media relations specialist Ryan Madden has replied and confirms that, despite the silence in the TUE policy, that USADA uses WADA standards when reviewing TUE applications under the UFC anti doping policy.  Madden advised as follows

Thanks for your patience… I apologize for not getting back to you sooner.

Regarding your inquiry, the review process for the UFC program is identical to that of the Olympic program with respect to determining the medical need/appropriateness for the TUE. In both cases, the WADA international standards govern the criteria considered by the independent TUE Committee when taking in to account such requests.

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One of the features of the UFC/USADA anti-doping program is that USADA has been given discretion to hand out “Therapeutic Use Exemptions“.  These are basically permission slips to allow an athlete to use an otherwise prohibited substance or method.  As seen prior to the USADA era, the TUE process is not immune from exploitation. 

As learned from the Floyd Mayweather affair, USADA can hand out TUE’s retroactively as well, in other words, after an athlete has been caught using an outlawed substance or method.

Given this clear standards need to be in place but from review of the UFC’s Anti-Doping Policy and the Policy for Therapeutic Use Exemptions standards appear absent.

The World Anti Doping Agency have their own objective list for granting TUE’s.  These are stringent and rarely can be met.  The legal test under WADA for a TUE is as follows –

a. 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.

b. 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. The Use of any Prohibited Substance or Prohibited Method to increase “lownormal” levels of any endogenous hormone is not considered an acceptable Therapeutic intervention.

c. There is no reasonable Therapeutic alternative to the Use of the otherwise Prohibited Substance or Prohibited Method.

d. The necessity for the Use of the otherwise Prohibited Substance or Prohibited Method cannot be a consequence, wholly or in part, of the prior Use, without a TUE, of a substance or method which was prohibited at the time of Use.

Interestingly this list is not adopted expressly anywhere in the UFC/USADA Policy for TUE’s.  Instead, all the policy says is that USADA is to grant TUE’s through a TUE Committee.  The Policy is dead silent on what standards the TUE Committee will apply.

The policy suggests that there are indeed ‘criteria for approval‘ because athletes are entitled to these if they are ever denied a TUE.  It is entirely unclear, however, what these criteria are.

Given that these criteria can be used to approve otherwise outlawed doping it is imperative that these be clearly set out.

I reached out to the World Anti Doping Agency who confirm that the UFC/USADA policy is  not monitored by them

I have also reached out to USADA who have been kind enough to respond but to date have only pointed to the TUE policy which, as noted above, is silent on criteria.  USADA Communications Staff member Ryan Madden contacted me to further discuss this and I will update this article if/when they respond with details of their TUE standards.