Update December 8, 2016 – today it is reported that Jones and the NAC reached a deal where he will receive a one year suspension which coincides with the punishment he received from USADA.
It is reported that Jon Jones, who was pulled from UFC 200 days before his bout with Daniel Cormier due to a failed out of competition drug test, may in fact pull off the ‘contaminated product’ defense.
“We’ve been able to establish the source of the prohibited substances. It came from a product that Jon took that was not labelled with either of these substances. We had it tested, the product was contaminated with both of them. I know USADA also independently had the product tested; their testing confirms what we found. We then sent essentially the same pills that we had had tested to be tested by USADA’s lab, which also found the same thing. So pretty much every time it’s been tested, it’s shown that the product is contaminated with both clomiphene and Letrozole, the two substances (Jones tested positive for).”
Even unintentional ingestion of a banned substance is a violation of USADA’s and the Nevada Athletic Commission’s ‘strict liability‘ anti-doping standards, however, as has been demonstrated by Tim Means and Yoel Romero, reduced sanctions can follow true cases of contaminated products.
Jones raised several affirmative defenses in his answer to the NAC’s Complaint for Disciplinary Action. He specifically argues that the NAC should “take into account” any punishment that USADA imposes and has arranged his USADA hearing to take place before his NAC hearing.
USADA is in the suspension business while the NAC is in both the suspension and financial penalty business. Assuming Jones succeeds in obtaining leniency from USADA his legal team hopes that the NAC follows suit. Only time will tell if they will but there is a legislative reason why the NAC should indeed respect USADA’s precedent.
In the most basic of legal terms the NAC and USADA do have ‘concurrent jurisdiction’ but for very different reasons. The NAC have jurisdiction due to legislation. USADA have jurisdiction due to private contract. All things being equal both are free to impose their own sanctions irrespective of the other. Recent legislative developments, however, may add fuel to fire Jones’ argument.
Last month a new regulatory framework came into force in Nevada overhauling some of the NAC’s anti-doping provisions. One of the changes expressly allows reduced suspensions including the potential for no suspension where ‘one or more mitigating circumstances’ exist including the tainted supplement defense.
Additionally, the new regulations allow the NAC to require a promoter to “submit to the Commission a copy of any contract and each amendment to a contract entered into by the promoter and an organization that administers a drug testing program on behalf of the promoter” and allows the NAC to reject a contract that “does not contain sufficient terms to ensure protection of this State, the Commission or unarmed combat“.
I have checked with the NAC and they have not, as of yet, obtained a copy of the USADA contract with the NAC advising as follows:
Despite not having the USADA contract on file, an exception exists where “A promoter is not required to submit to the Commission a copy of a contract…if the Commission, in its discretion, authorizes the promoter to arrange for a representative of the Commission to review the information and report to the Commission whether the contract or amendment complies with the provisions of subsection 1.”
Assuming the NAC has ratified the USADA contract and are content that it “ensures protection of the State, the Commission (and) unarmed combat” then it only makes sense to honor findings and punishments imposed by USADA unless there are compelling reasons not to. Only time will tell if the NAC accepts this reality of concurrent jurisdiction.