Combat Sports Law

It has now widely been reported that Canelo Alvarez tested positive for ingesting the banned substance Clenbuterol ahead of his scheduled May 5 rematch with Gennady Golovkin. The failed drug tests were conducted out-of-competition taken through the Voluntary Anti-Doping Association.  Samples tested on February 17th and 20th were positive for the substance.

VADA does not hand out their own sanctions, rather they are a privately hired anti-doping watchdog who simply pass their drug test results to sanctioning bodies and regulators.

The Nevada State Athletic Commission has jurisdiction over this bout and after learning of the positive test issued a temporary suspension to Alvarez and scheduled a hearing on April 1o, 2018 where the fighter will have to answer the anti-doping allegations.

So what legal principles are in play?

As previously discussed, in 2016 the NSAC overhauled their anti-doping landscape in an effort to bring predictability and consistency when punishing drug cheats.

First and foremost the regulations make it clear that fighters have the right to have a B sample tested prior to an anti-doping violation being established.  Alvarez enjoys this same right under VADA.  It is unclear if his B sample is being tested but given that B sample results almost always confirm A sample findings it is a good bet this will not be an out for Alvarez.

Alvarez’s camp seems resigned to this fate blaming the positive result not on shoddy lab work but on tainted Mexican beef.

Assuming the sample can be traced back to tainted beef this does not exculpate Alvarez from a violation.  Among the 2016 changes were a codification of the ‘strict liability’ nature of doping offenses with the regulations noting

““it is not necessary to establish that the unarmed combatant intentionally, knowingly or negligently used a prohibited substance or that the unarmed combatant is otherwise at fault for the presence of the prohibited substance“

In other words, athletes are responsible for what enters the body and if the prohibited substance is there a violation occurred.

From there the inquiry moves to what punishment will be issued.  The NSAC came under wide criticism for handing out inconsistent penalties for doping violations in the past.  The 2016 amendments attempted to address this giving scheduled penalties for infractions.  Specifically they call for a default suspension of 9-24 months for a first anti doping violation with a fine from 15-30 % of a fighters purse.

So is this Alvarez’s fate? Not necessarily.  The amendments also allow reduced suspensions including the potential for no suspension where ‘one or more mitigating circumstances’ exist.  Included in the definition of ‘mitigating circumstances’ is the ‘contaminated product’ defense with the regulations noting:

 

 

 

 

 

 

 

 

 

 

 

The hearing can take various twists and turns with NSAC regulations calling for increased and decreased penalties in various circumstances.  The most important takeaway, however, is that if Alvarez can credibly trace the clenbuterol to tainted meat no suspension is a live option.

There are numerous examples in recent years of athletes tracing clenbuteroal to tainted meat and receiving no suspension for the ingestion of the drug.

• Ning Guangyou tested positive for trace amounts of clenbuterol as the result of an out-of-competition urine sample taken by USADA who handed him no suspension.
• On September 2, 2016 USADA reported that fighter Li Jingliang  “ingested (clenbuterol) …without fault or negligence” and imposed no sanctions for this anti doping policy violation.  It is noteworthy that the NSAC, other than issuing a temporary suspension, took no action against Jingliang and accepted the legitimacy of the tainted meat defense.  It is also noteworthy that Jingliang’s infraction took place before the NSAC’s 2016 regulatory overhaul.
• UFC Fighter Augusto Montano received a finding of no-fault and received no sanction after he tested positive for trace amounts of clenbuterol as the result of an out-of-competition urine sample he provided on May 19, 2016

The above USADA precedents are not binding on the NSAC and the past JinLiang decision involved an infraction that took place under a previous regulatory landscape.  When it comes to anti-doping measures in combat sports it is important to remember that each jurisdiction is a fiefdom unto itself and the specific regulatory language in play needs to be analyzed.

For Alvarez’s defense to succeed he will have to persuade the NSAC not only that tainted meat was the source of the drug but also that “a reasonable internet search” would not disclose the problem of clenbuterol tainted beef in Mexico.  A quick google search with the right key words demonstrates this may be a difficult burden to discharge.  As Iain Kidd points out,  “WADA itself says punishing athletes from countries with clenbuterol-contaminated meat for drug test results consistent with contaminated meat would be “unfair”.  It remains to be seen if Nevada is prepared to align itself with these standards given the updated wording of their regulations.