Combat Sports Law

(Tyson Fury Twitter profile pic)

Today it was reported that world heavyweight champion boxer Tyson Fury tested positive for cocaine metabolites in an out-of-competition test taken on September 22.

Fury was scheduled to defend his WBA and WBO belts in a rematch with Wladimir Klitschko but he pulled out before this drug test finding became public.

In 2015 UFC light heavyweight champion Jon Jones tested positive for cocaine metabolites in an out of competition test conducted by the Nevada State Athletic Commission.  No sanctions resulted, however, as cocaine was not banned out-of-competition by the NSAC nor is it banned out-of-competition by the UFC’s in house anti-doping-program administered by the United States Anti Doping Agency.

So will Tyson Fury face a similar punishment-free fate?  Not necessarily.

Here are some key points –

• The WBC administers a ‘clean boxing program’ requiring all top 15 ranked fighters in each weight class to comply with Voluntary Anti-Doping Administration (“VADA”).
• Fury’s scheduled bout was not a WBC sanctioned fight, however, instead the sanctioning organizations were the WBA and the WBO, neither of which have a ‘clean boxing program’
• The out-of-competition test which Fury reportedly failed was, however, conducted by VADA.  VADA had jurisdiction to do so because Fury and Klitschko both voluntarily signed up for the enhanced testing (and then withdrew after the bout was called off)

• Unlike many North American Athletic Commissions, and the World Anti-Doping Agency, VADA prohibits cocaine use and other stimulant use at all times (ie both in and out of competition.)
• VADA does not (unlike USADA) dish out their own punishments.  Athletes who test positive under the VADA program have their results shared with appropriate Commissions, Associations, Organizations, Promoters, and/or Sanctioning Bodies who are free deal with the results as they deem fit.
• Fury’s upcoming bout was regulated by the British Boxing Board of Control.  Unlike North American State and Provincial athletic commissions, the BBBC is not a government created creature and instead is a regulator simply by mass consent and it is unclear what, if any, sanctions they are prepared to impose for Fury’s violation of a privately agreed to anti-doping protocol.
• Since the WBA and WBO are not VADA member organizations it would be surprising if they took any action against Fury.  The WBA’s  Rules state that they can demote a fighter for “failure to take or pass a required drug test” however they adopt “the list of prohibited substances is as published by the International Olympic Committee” meaning the WADA prohibited list. The WBO’s Regulations don’t seem to define what drugs are prohibited by their organization and only speak to stripping a world champion who fails a test “after a bout” meaning an out of competition test may not run afoul of their rules.
• The UK Anti-Doping Agency may play a role as well (as Fury learned from his alleged Anti Doping Violation earlier in the year) however UKAD adopts the WADA prohibited list which does not ban cocaine out of competition. 

There is inconsistency in the world of combat sports regulation as to what recreational drugs can be used in and out of competition. Adding to this landscape the NSAC is proposing to ban stimulants such as cocaine at all times to be in line with VADA standards creating even more incongruity.

While Fury, if the positive test stands any legal challenges, is in breach of a privately agreed to anti-doping program, without any government or sanctioning body agreeing to the same standards Fury may escape punishment for this deed.  It is a muddy landscape.

Update – The Guardian reports that Fury is scheduled to meet with the BBBC on October 12 to decide “whether it will withdraw Tyson Fury’s licence.“.  In 2010 the BBBC stripped Ricky Hatton of his licence in part for cocaine use but they used the default ‘bringing boxing into disrepute arising out of incidents of alcohol and drug abuse by him’, a legally thin position to take given that out of competition recreational drug use is not prohibited by WADA and UK Anti-Doping.

If the BBBC wishes to cite criminal behavior (as opposed to a true anti-doping violation) as a reason for denying a fight licence they would do well to remember Muhammad Ali v. NYSAC which taught regulators the important lesson of being consistent in their standards for fighter licensing decisions.

Fury’s admitted mental health struggles, on the other hand, very well may justify licence withdrawal for health and safety reasons.