Combat Sports Law

Update June 10, 2016 – Tim Means accepted the anti-doping policy violation and a 6 month sanction.  USADA provided the following press release

USADA announced today that UFC athlete, Tim Means, of Edgewood, N.M., has accepted a 6-month sanction for an anti-doping policy violation after testing positive for a prohibited substance from a contaminated supplement.

Means, 32, tested positive for Ostarine following an out-of-competition test conducted on January 21, 2016. Ostarine is a selective androgen receptor modulator (SARM) and a prohibited substance under the UFC Anti-Doping Policy, which has adopted the World Anti-Doping Agency (WADA) Prohibited List.

Following notification of his positive test, Means provided USADA with a sealed container of one of the dietary supplement products he was using at the time of the relevant sample collection. Although no prohibited substances were listed on the supplement label, testing conducted on the product by the WADA-accredited laboratory in Salt Lake City, Utah, indicated that it contained Ostarine. The presence of an undisclosed prohibited substance in a product is regarded as contamination. Accordingly, the product has since been added to the list of high risk supplements maintained on USADA’s online dietary supplement safety education and awareness resource – Supplement 411 (www.supplement411.org).

Under the UFC Anti-Doping Policy, as well as the World Anti-Doping Code, the determination that an athlete’s positive test was caused by a contaminated product may result in a reduced sanction. The sanction for a doping offense resulting from the use of a contaminated product ranges from a reprimand and no period of ineligibility, at a minimum, to a two-year period of ineligibility, at a maximum.

Means’ six-month period of ineligibility began on February 3, 2016, the date on which he was provisionally suspended from competition. In addition, Means has been disqualified from all competitive results obtained on and subsequent to January 21, 2016, the date of sample collection, including forfeiture of any title, ranking, purse or other compensation.

 

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UFC fighter Tim Means has been the latest athlete to be advised of a potential Anti-Doping Policy violation stemming from an out-of-competition sample collection.

He has recently speculated that the positive result may be due to tainted testing equipment or tainted supplements.

Assuming his suggestion that he ingested tainted supplements proves true, Means will still teach a valuable lesson to the rest of the UFC’s roster, namely that the brave new world of USADA’s anti-doping program is one of ‘strict liability‘.

In other words, the prohibition against banned PED’s is absolute and athletes are responsible for what they put into their bodies even if they are wholly without blame.

There is some leniency built into the policy with the punishment potentially being as light as a reprimand for truly unintentional doping with s. 10.5.1.2 of the ADP reading as follows –

In cases where the Athlete or other Person can establish that the detected Prohibited Substance came from a Contaminated Product, then the period of Ineligibility shall be, at a minimum, a reprimand and no period of Ineligibility, and at a maximum, the period of Ineligibility set forth in Article 10.2, depending on the Athlete’s or other Person’s degree of Fault. 

Assuming the source of the PED can be linked to a contaminated product (which will take more than an athlete’s word as the policy requires proof on a balance of probabilities), an athlete will also have to demonstrate extreme diligence before triggering leniency in the world of anti-doping punishment. USADA expects athletes to take the following steps in discharging diligence –

(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.

While the ‘contaminated product’ defence has yet to be tested under the UFC/USADA anti doping policy, USADA has a vast track record of dealing with unintentional doping in other sports and have been known to hand out steep penalties in such circumstances.  You need look no further than the recent decision of USADA v. Asfaw to see they handed a two year ban to an athlete who was found to have indeed taken a banned substance unintentionally.