Can USADA Consider Josh Barnett’s Past Doping When Punishing Him?

This week it was announced that UFC heavyweight Josh failed an out-of-competition drug test administered by USADA on December 9, 2016.

With this news Barnett may gain the unenviable distinction of earning the most doping failures in MMA history testing positive after UFC 34, then testing positive for Boldenone, Nandrolone and Fluoxymesterone after UFC 36 and lastly testing positive for Drostanolone in an Affliction bout in 2009.

So the question now is, if USADA proves this latest violation, can Barnett face steeper penalties due to his blemished past?  With the possibility of a lifetime ban for a third violation it is an important issue.

In short the answer is yes and no.  No to the fact that the past doping cannot be considered a past policy violation.  Yes to the fact that his past may be considered an ‘aggravating’ circumstance.

Section 10.7 of the UFC/USADA custom tailored anti doping policy deals with multiple doping infractions and calls for steeper penalties for subsequent “Anti-Doping Policy Violations”.  In other words, past violations have to be part of the UFC/USADA scheme to trigger steeper penalties.  Barnett’s do not.  The specific language is as follows:

10.7.1 For an Athlete or other Person’s second Anti-Doping Policy Violation, the period of Ineligibility shall be the greater of:

(a) six months;

(b) one-half of the period of Ineligibility imposed for the first Anti-Doping Policy Violation without taking into account any reduction under Article 10.6; or

(c) twice the period of Ineligibility otherwise applicable to the second Anti-Doping Policy Violation treated as if it were a first violation, without taking into account any reduction under Article 10.6.

The period of Ineligibility established above may then be further reduced by the application of Article 10.6.

10.7.2 A third Anti-Doping Policy Violation will result in a period of Ineligibility of a minimum of double the period of Ineligibility which would apply if it were a second violation up to lifetime Ineligibility.

10.7.3 An Anti-Doping Policy Violation for which an Athlete or other Person has established No Fault or Negligence shall not be considered a prior violation for purposes of this Article

In case the above leaves any doubt section 10.7.4 dispels these expressly stating as follows

an Anti-Doping Policy Violation will only be considered a second violation if USADA can establish that the Athlete or other Person committed the second Anti-Doping Policy Violation after the Athlete or other Person received notice pursuant to Article 7, or after USADA made reasonable efforts to give notice of the first Anti-Doping Policy Violation

The only way Barnett’s past can come to haunt him is if USADA considers it to meet the definition of “aggravating circumstances” under the policy.  If these exist “The period of Ineligibility may be increased up to an additional two years“.

These are defined as follows:

Aggravating Circumstances exist where the Anti-Doping Policy Violation was intentional, the Anti-Doping Policy Violation had significant potential to enhance an Athlete’s Bout performance, and one of the following additional factors is present: the Athlete’s or other Person committed the Anti-Doping Policy Violation as part of a doping plan or scheme, either individually or involving a conspiracy or common enterprise to commit an Anti-Doping Policy Violation; the Athlete or other Person Used or Possessed multiple Prohibited Substances or Prohibited Methods or Used or Possessed a Prohibited Substance or Prohibited Method on multiple occasions; the Athlete or Person engaged in deceptive or obstructing conduct to avoid the detection or adjudication of an Anti-Doping Policy Violation.

Depending on the results of the test an argument can be made that aggravating circumstances exist for a repeat PED using athlete even if past use fell outside of the policy timeframe.

It is unlikely, however, that his can apply to an out-of-competition test as the substance has to have a “significant potential to enhance an Athlete’s Bout performance” and with no bout having taken place this section arguably is not triggered.

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