Combat Sports Law

Update February 17, 2017 – Today USADA ‘cleared’ Justino from the alleged violation granting her a retroactive TUE for physician prescribed Spironolactone.  The press released noted as follows:

In the case of Justino, the application for a TUE was granted because the athlete had an unequivocally diagnosed chronic medical condition for which the use of Spironolactone is the appropriate standard of care. Further, it was determined that the athlete and her medical team pursued and exhausted all non-prohibited alternatives and that the low dose of the medication is consistent with best medical practice to treat her condition and would return the athlete to a normal state of health without providing a performance-enhancing benefit.

Because Justino’s TUE application was granted retroactively, her provisional suspension has been lifted with immediate effect and her positive test will not result in an anti-doping policy violation. However, as a condition of the TUE approval, Justino will be required to continue to carefully document her medical care and must apply for a TUE renewal in advance of TUE expiry should she wish to maintain compliance with the UFC Anti-Doping Policy.

 

What is unclear, however, is exactly what standard USADA used in granting the TUE.  Presumably USADA relied on the ‘fairness requires it’ catchall provision.

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Update December 22, 2016 – Cyborg has now published a full statement admitting the substance in question is Spironolactone, a diuretic and masking agent that is prohibited at all times (ie both and and out of competition) by the UFC/USADA anti doping policy.

Cyborg admitted that she has been on this drug since September 26, 2016.  She has apparently not applied for a Therapuetic Use Exemption prior to testing positive.  Given her admission that she has been on the drug since September it is hard to imagine how she has exercised any reasonable level of diligence.

Cyborg claims that her doctor “is experienced with USADA testing and informed me there were no additional steps needed for approval with the associated treatments”.   However, relying on a doctor for legal advice should not meet the threshold of reasonableness.

Lastly Cyborg states she “already started the process of applying for a retroactive therapeutic use exemption”.  As stated below USADA can indeed grant a retroactive TUE.  To be granted a TUE in the first place she will need to meet the following test:

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.

If Cyborg produces medical evidence to meet the above test her burden is not yet over.  While section 4.4.4 of the UFC/USADA Anti-Doping Policy allows for retroactive TUE’s it is not a rubber stamp process. The policy is silent on what standards UFC athletes face but According to USADA’s website

An application for a TUE will only be considered for retroactive approval where:

a. Emergency treatment or treatment of an acute medical condition was necessary; or

b. Due to other exceptional circumstances, there was insufficient time or opportunity for the Athlete to submit, or for the TUEC to consider, an application for the TUE prior to Sample collection; or

c. It is agreed, by WADA and by the Anti-Doping Organization to whom the application for a retroactive TUE is or would be made, that fairness requires the grant of a retroactive TUE.

Her only hope rests on ground “c” that “fairness requires” it.  Even if all the above tests can be met Cyborg may still be in hot water for failing to disclose her use of this substance when the doping control officer came to collect her sample (as evidenced by her excuse blaming her doctor for saying ‘no additional steps’ were needed).

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Today the UFC announced Cris “Cyborg” Justino has been notified of a potential anti doping violation stemming from an out of competition test.

The promotion published the following bare bones press release:

The UFC organization was formally notified today that the U.S. Anti-Doping Agency (USADA) has informed Cristiane “Cyborg” Justino of a potential Anti-Doping Policy violation stemming from an out-of-competition sample collection on December 5, 2016.

USADA, the independent administrator of the UFC Anti-Doping Policy, will handle the results management and appropriate adjudication of this case. It is important to note that, under the UFC Anti-Doping Policy, there is a full fair legal review process that is afforded to all athletes before any sanctions are imposed.

Consistent with all previous potential anti-doping violations, additional information or UFC statements will be provided at the appropriate time as the process moves forward.

Cyborg’s camp was quick to reply suggesting she is on prescription medication treating harmful effects from her last rapid extreme weight cut.

It is worth noting that if this is actually the case USADA does have the discretion to grant retroactive ‘therapeutic use exemptions’ under the UFC’s anti doping policy.  There are too few facts publicly available right now to predict exactly how this will shape out.