The Weird Findings of the Wilder v. Povetkin Doping Lawsuit

They say bad facts make bad cases and reasons for judgement published last week in the Wilder v. World of Boxing LLC case fits this mold.

Deontay Wilder and Alexander Povetkin where contracted to compete for the WBC world heavyweight title in Moscow on May 21, 2016.   It was agreed that the WBC’s “rules and regulations shall govern the event in its entirety and shall be binding on all parties.“.

Included in the WBC’s rules was a softly worded doping prohibition stating that boxers “should not take, ingest, or have administered to him any substance, medicine, or drug…that may enhance or reduce the boxer’s performance in the ring“.  VADA was contracted to conduct anti-doping testing.   It was agreed that if a positive doping finding occured that such a boxer “shall be subject to such penalties or treatment as the WBC may determine appropriate in its sole discretion“.

With those key facts in place VADA tested Povetkin on  April 7, April 8 and April 11 before an April 27, 2016 sample tested positive for the banned substance Meldonium.  The drug was not placed on the World Anti Doping Agencies prohibited list until January 1, 2016.  The scientific background as to the drug’s elimination rate was developing and it was possible for an athlete to ingest the drug before it was banned and not have a positive finding until after.

When news broke the WBC ‘postponed’ the bout with Wilder’s camp taking the position that the bout was cancelled due to the positive Meldonium finding.

Litigation ensued. Povetkin maintained that he ingested the substance before it was banned.  Ultimately that question went to trial with a jury finding that Wilder proved “by a preponderance of the evidence that Mr. Povetkin ingested Meldonium on or after January 1, 2016“.

The WBC took the position that it was unclear when Povetkin ingested the drug but “if during the course of the pending litigation between Mr. Povetkin and Champion Wilder, the Court makes a final ruling that differs from the findings set forth herein, the WBC shall have the right to review this ruling and take any course of action it may deem appropriate“.

After the above jury finding the WBC ultimately refused to change their view relying on a WADA directive finding ‘no fault’ for Meldonium samples collected between January 1, 2016 and September 20, 2016 for concentrations under one microgram per milliliter.

So despite the jury ruling the WBC found no doping violation was proven.  To the surprise of many the Court agreed that Povetkin committed no contractual breach in these circumstances with US Magistrate Judge Gabriel Gorenstein providing the following reasons

…the WBC’s statement that there is no ‘strict liability’ standard and its arrogation to itself of the prerogative of deciding how ingestion of performance-enhancing substances will be treated.  In these circumstances, the Wilder Parties have not shown that Povetkin’s ingestion of or positive test for Meldonium was by itself a breach of the Bout Agreement…In this case, the parties ceded a substantial amount of control over the performance of the Bout Agreement to the WBC.  That this Court accepts his aspect of the Bout Agreement does not represent any failure by this Court to exercise jurisdiction.  To the contrary, doing so implements the intent of the parties.”.

It is unknown if this decision will be appealed.  If not the precedent set is likely limited to its unique facts.  Namely a watered down contratual doping prohibition coupled with shifting science in a drug’s known elimination rate combined with deference to the WCB as an anti-doping arbiter.   As was demonstrated in World of Boxing LLC v. King failure for a bout to take place due to doping can be legally actionable.

For more on the above case I recommend Kurt Emhoff’s excellent analysis at BoxingEss.com.

 

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