Archive for the ‘Doping’ Category

Today the United States Anti-Doping Agency revealed that UFC fighter Lyoto Machida was handed an 18 month suspension for an anti doping policy violation stemming from both admitted use followed by a failed test taken out of competition.

The reduced penalty, which has a baseline of 2 years for this violation, was apparently due to the “voluntary admission” provisions in the UFC/USADA custom tailored anti-doping program.

USADA published the below press release detailing this development:

USADA announced today that UFC® athlete, Lyoto Machida, of Salvador, Brazil, has accepted an 18-month sanction for an anti-doping policy violation after declaring the use of a prohibited substance and subsequently testing positive for the use of that substance.

During an out-of-competition test conducted on April 8, 2016, Machida, 38, declared the use of a product containing 7‐keto-dehydroepiandrosterone (7‐keto‐DHEA) on his sample collection paperwork. 7‐keto‐DHEA is a prohibited substance in the class of Anabolic Agents and prohibited at all times under the UFC Anti-Doping Policy, which has adopted the WADA Prohibited List. Upon notice from USADA of his potential violation, Machida immediately confirmed his use of the product, which listed 7-keto-DHEA as an ingredient, and fully cooperated with the subsequent investigation after advising USADA that he did not realize 7-keto-DHEA was a prohibited substance when he used the product.

Machida’s sample was analyzed at a World Anti-Doping Agency (WADA)-accredited laboratory and reported to USADA for an elevated 7β-hydroxy-DHEA to DHEA ratio, which is consistent with his declared use of a prohibited substance.

Under the UFC Anti-Doping Policy, as well as the World Anti-Doping Code, an athlete’s period of ineligibility for using a prohibited substance may be decreased depending on the athlete’s level of fault for the anti-doping policy violation. The UFC Anti-Doping Policy further provides that the prompt admission of an anti-doping policy violation may also be considered a mitigating factor in determining an appropriate sanction. Here, based on the circumstances of Machida’s violation, USADA determined that a reduction to 18-months from the standard two-year period of ineligibility was justified.

Machida’s 18-month period of ineligibility began on April 8, 2016, the date his positive sample was collected and he declared his use of a prohibited substance.

Today USADA announced that UFC athlete, George Sullivan, of Red Bank, N.J., has accepted a one-year sanction for an anti-doping policy violation after declaring the use of a prohibited substance contained in a product that was inaccurately labeled.

Sullivan “declared the use of Insulin-like Growth Factor-1 (IGF-1) on his sample collection paperwork when describing his use of a deer antler velvet product during an out-of-competition test conducted on July 13, 2016

Although “Sullivan did not test positive for any prohibited substances” his admission of use was enough to trigger an anti-doping policy violation (a reality that was previously demonstrated by Mirko Filipovic).

The substance in question,  Insulin-like Growth Factor-1 (IGF-1), is banned at all times under the UFC/USADA anti-doping policy and calls for a 2 year suspension.  USADA, however, exercised their discretion relying on Sullivan’s ‘forthright declaration‘ and cut the punishment in half providing the following reasons:

Under the UFC Anti-Doping Policy, as well as the World Anti-Doping Code, an athlete’s period of ineligibility for using a prohibited substance may be decreased if the athlete lacks significant fault for the anti-doping policy violation. In this instance, USADA determined that Sullivan’s reduced degree of fault and his forthright declaration of the product at issue justified a reduction to one year from the maximum two-year period of ineligibility.

Sullivan’s one-year period of ineligibility began on January 31, 2016, the day after his most recent UFC bout.

This result may be good news for Lloyto Machida who is still awaiting his fate after voluntarily disclosing the use of a prohibited product during an out of competition test.

 

Today Chairman Michael J. Bellof released reasons for judgement handing Jon Jones a 12 month period of ineligibility due to a failed out of competition drug test administrated on June 16, 2016.

In short the sample tested positive for hydroxyclomiphene (a metabolite of clomiphre) and a letrozole metabolite.  These are ‘specified substances’ under the UFC’s custom anti-doping program with USADA calling for a punishment range from a reprimand up to a one year period of ineligibility.

Jones traced the substance back to a sexual performance pill he obtained from a friend.  The panel concluded that “He did not know that the tablet he took contained prohibited substances or that those substances had the capacity to enhance sporting performance“.

However, Jones was handed the maximum penalty because his “fault was at the top end of the scale….He made no enquiry at all about the Tadalafil pill which he did take.  He simply relied upon his tea ate to tell him what it was and how it could enhance sexual pleasure.  His degree of fault in fact verged on the reckless.”

It is also noteworthy that Jones failed to disclose the pill to USADA when they collected his sample with the reasons noting Jones “affirmed that he had no substances to declare (in particular he made no reference to either Cialis or Tadalafil) and by signing the completed form certified that the information he had given on the document, was correct.”

The arbitrator distinguished Jones’ situation from Tim Means and Yoel Romero who each received a 6 month suspension for consuming tainted supplements.  The arbitrator noted “The cases of Romero and Means, UFC athletes, provided instances of classic contaminated products in the form of dietary supplements, purchased from orthodox outlets, whose labels did not disclose the prohibited substances which each contained” calling these cases of “moderate” fault contrasted to Jones’ recklessness.

The legal lessons for other UFC athletes are twofold

  1. Accuracy is important when declaring substances used to USADA at the time of sample collection
  2. Due diligence is needed.

Not only did Jones fail in exercise diligence, he outright admitted this shortcoming at his own press conference shortly after his sample tested positive.

USADA expects the following from athletes claiming due diligence:

(i) read the label of the product used (or otherwise ascertain the ingredients),

(ii) cross-check all the ingredients on the label with the list of prohibited substances,

(iii) make an internet search of the product,

(iv) ensure the product is reliably sourced and

(v) consult appropriate experts in these matters and instruct them diligently before consuming the product.

The arbitration concluded with the following warning:

On the evidence before the Panel, the Applicant is not a drug cheat.  He did not know that the tablet he took contained prohibited substances or that those substances had the capacity to enhance sporting performance.  However by his imprudent use of what he pungently referred to as a “dick pill” he has not only lost a year of his career but an estimated nine million dollars.  This outcome which he admits to be a wake-up call for hi should serve as a warning to all others who participate in the same sport.

The full reasons can be found here – jon-jones-usada-decision

Adding to MMA’s ever growing doping list, Brazil’s MMA Athletic Commission(CABMMA) announced 7 positive anti-doping violations spanning from March – May 2016.

The following chart was released detailing the violations in Portuguese (h/t Joe Seatter)

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Which, crudely translated into English via Google, reads as follows

brazillian-doping-results-translated

The International Mixed Martial Arts Association announced a 4 year ban handed to an athlete for an anti-doping violation.

In a press release published yesterday the IMMAF reports as follows:

An independent tribunal appointed by the International Mixed Martial Arts Federation (IMMAF) has found that Ms Jamie Herrington from Canada, (Gold Medallist in the 145lb division), committed an Anti-Doping Rule Violation at the 2015 IMMAF World Championships of Amateur MMA in Las Vegas. As result, a period of 4 years’ ineligibility has been imposed upon the athlete.

A World-Anti Doping Agency accredited lab found amphetamine in an in-competition sample taken from Herrington.  The B sample confirmed the results.

In issuing a 4 year ban Arbitrator Max Shephard provided the following reasons:

27. If it is found that a doping violation occurred the following rules deal with sanction. The relevant article for a non specified substance is 10.2.1 which states: The period of Ineligibility shall be four years where: 10.2.1.1 The anti-doping rule violation does not involve a Specified Substance, unless the Athlete or other Person can establish that the anti-doping rule violation was not intentional.

58. As I find there are no applicable reductions in this case, the period of ineligibility is one of 4 years with that period commencing on the date of provisional suspension, namely 3rd September 2015.

59. In addition to the period of ineligibility, and as a consequence of my findings, Ms Herrington’s results will be disqualified in the IMMAF World Championships 2015 with all resulting consequences. In this instance this will result in forfeiture of Ms Herrington’s gold medal, disqualification of her results, and subsequent revision of medals in that category.

60. The athlete has a right to appeal to the Court of Arbitration for Sport within 21 days of this decision

The full reasons can be found here – herrington-immaf-decision

Earlier this year it was revealed that Brock Lesnar failed in and out of competition tests surrounding his bout with Mark Hunt at UFC 200 with “Clomiphene and hydroxyclomiphene” being detected.

Lesnar is undergoing results management with the United States Anti Doping Agency who oversee the UFC’s in house anti-doping program and further facing regulatory consequences with the Nevada State Athletic Commission.

There is speculation that Lesnar may try the ‘tainted supplement‘ defence blaming the positive results on products which failed to include them on their label.  While this is not an outright defense it is a mitigating factor which can result in drastically reduced punishments for athletes who successfully pull it off.

While USADA punishment is one thing, the NAC regulatory process creates its own challenges and Lesnar’s biggest barrier, even if he can prove a contaminated product, may be an alleged misrepresentation to the NAC.

I have obtained a copy of the State’s Complaint against Lesnar where not only doping allegations are made but also allegations of providing “false or misleading” information to the commission, a stand alone offence.

lesnar-ufc-202-complaint-screenshot

Lesnar’s pre-fight medical questionnaire indeed denies ingesting any “medication, drug, cream, inhalant, intravenous infusions, or injection, whether prescription or over the counter” in the month prior to UFC 200.

Lesnar does admit to ingesting multivitamins, creatine and protein powder but nothing else.

In short, if Lesnar’s legal team can indeed identify a product which resulted in his unwitting ingestion of Clomiphene he will need to link it to “multivitamins, creatine and protein powder” or a drug or other product ingested more than 30 days prior to UFC 200 which was capable of leaving detectable traces beyond 30 days.  This is, to put it charitably, an uphill legal battle.

lesnar-screenshot-ufc-202-questionairre

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(Image courtesy of MixedMartialArts.com’s Kirik Jenness)

Although little media attention was received, on September 9, 2016 Nevada overhauled their combat sports regulations with many significant changes most notably to the anti doping scheme.

The full regulations can be found here.

The key changes to the anti doping rules are as follows which all Nevada combat sports stakeholders should be familiar with:

  • The NAC adopts, in addition to WADA’s prohibited substances, WADA’s prohibited methods thus eliminating a blood doping loophole which arguably existed in Nevada.
  • Specifically noting that anti-doping violations are strict liability offences and that “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
  • Confirming that a positive A sample where B sample testing is waived is sufficient to prove an anti doping violation
  • Confirming that a positive A and B sample is sufficient to prove an anti doping violation
  • Confirming that an anti-doping violation can occur even without a failed test if there is proof that an unarmed combatant “utilizes, applies, ingests or consumes by any means, or attempts to utilize, apply ingest, inject or consume by any means, a prohibited substance or prohibited method
  • Sets penalties for refusing or failing to submit to a test as a suspension from 12-24 months and fines of 20-40% of the fighter’s purse.
  • Confirming that intimidating test administrators or otherwise tampering or obstructing with the test collection process is a violation with suspensions of 12-24 months and fines of 20-40% of the fighter’s purse
  • Confirming that possessing out of competition substances at any time (or possessing substances banned in-competition while in competition) is an anti doping violation with suspensions ranging from 9-24 months and fines of 15-30% of a fighter’s purse
  • Confirming that it is a violation to sell, give, transport, deliver or distribute prohibited substances with suspensions ranging from 12 months to a lifetime ban and fines of 15-50% of a fighter’s purse
  • Allows for reduced penalties where an athlete “promptly admits to an anti-doping violation“.  If the admission is the only evidence against the fighter the suspension can be reduced by up to 50% and fines can be reduced to as little as 10% of the purse.
  • Similar leniency is built in where an admission is made in the face of other evidence.
  • Mandating a default suspension of 9-24 months for an anti doping violation with a fine from 15-30 % of a fighters purse.
  • Doubling the period of suspension for “a second anti doping violation” with fines of up to 40% of the fighter’s purse
  • Increased suspensions for “a third or subsequent anti-doping violation” from 18 months up to a lifetime ban and fines of 40-60% of a fighter’s purse
  • Doubling anti-doping suspensions if there are “aggravating circumstances” defined as “when the conditions, events or facts accompanying an anti-doping violation increase the culpability of the person who committed the anti-doping violation” with an unexhaustive list of examples provided.
  • Allowing reduced suspensions including the potential for no suspension where ‘one or more mitigating circumstances’ exist such as the tainted supplement defense or providing assistance in establishing anti doping violations against others
  • Clarifying the Therapeutic Use Exemption process including confirming that TUE’s can not be granted retroactively after a bout took place.
  • Confirming that a licence can be further suspended or revoked where an individual fails to pay a fine imposed in a timely fashion or otherwise comply with the terms of a payment plan
  • Requiring promoter hired drug testing organizations to be licenced with the commission and further requiring promoter/drug testing organization contracts to be filed with the commission and compelling such organizations to send all test results to the commission.

Last year the California State Athletic Commission fined Alexander Shlemenko and handed him a three year suspension after “testing positive for steroids”.

As previously reported the regulatory hearing left much to be desired from a perspective of due process and objective fairness.  Shlemenko judicially reviewed the CSAC’s decision and in part succeeded by having his fine decreased and having the three year suspension reduced to one year.

Superior Court Judge Robert O’Brien’s reasons can be found here – Shlemenko Reasons For Judgement .

Three takeaways are noteworthy, the first California specific, the second and third in a broader sense.

  1. The CSAC regulatory scheme does not require the commission to split samples into “A” and “B” samples. The Court ruled that “The Commission is bound to follow its own regulations and other laws, not the Commission’s agreement with its testing lab.  The applicable regulations specify that the single positive test result is sufficient to show a violation of the anti-drug rules and does not mention taking a “B” sample“.
  2. Due Process matters.  The Court held that the Commission was wrong in increasing Shlemenko’s penalty from one year to three simply because he insisted on exorcising his administrative rights.  Judge O’Brian stated “The Court agrees that under the circumstances of this case, it violated Petitioner’s due process rights to increase the proposed penalty by three years.  Petitioner could not have known that by appealing the suspension of his license he was reopening the issue of the length of the suspension.  The Commission does not cite any authority or precedent that would allow them to increase the penalty from the original term of approximately one year.  Indeed, a three-year penalty was not even discussed until the closing briefs on the penalty issue, and by that time Petitioner was unable to respond.  Accordingly, the Commission violated Petitioner’s due process rights by imposing a suspension that was longer than originally noticed
  3. The Court reduced Shlemenko’s fine on the basis that the CSAC  only had the ability to issue a fine for “any false statement made in application for a license” and they were wrong in fining Shlemenko for potentially false statements not related to his licence.  The lesson is that Athletic Commissions are pure creatures of statute and only can exercise those powers specifically given to them, not those that they would like to have or those that they should have.

 

Update November 16, 2106Today it was announced that Machida accepted a 18 month suspension with the reduction being due in part to his “prompt admission”.

Update November 8, 2016Today it was announced that George Sullivan had his USADA suspension cut in half due in part to his self disclosure giving hope to Machida that the below may be sound strategy

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Yesterday it was revealed that Llyoto Machida “declared the usage of a banned substance during an out-of-competition sample collection” by the United States Anti Doping Agency.

This caused the UFC to remove him from his upcoming fight with Dan Henderson and Machida will have to await his results management process (ie discipline hearing) from USADA.

As was recently learned from the Mirko “Cro-Cop” Filipovic experience, self admitted ingestion of a banned substance is enough to warrant sanctions from USADA where Cro-Cop was handed a two year ban for admitted HGH use in the face of a negative test.

So is Machida facing a similar fate?  Possibly not.  Machida’s legal team can and should take advantage of Section 10.6.2 of the Anti-Doping Policy which may act to reduce his penalty.

Here’s the breakdown –

Using a substance banned out of competition leads to a default 2 year period of ineligibility under section 10.2.1 of the Policy.

Machida will not be able to use the Romero ‘contaminated product’ defence nor take advantage of the Policy’s no-negligence sections as he could have realized the product he was taking, through due diligence, was prohibited.

However, there is a further section of the policy that has yet to be tested by athletes that may prove beneficial.  Section 10.6.2 of the Policy allows an athlete who comes clean to USADA first to have his penalty cut in half.

Specifically the section states that “Where an athlete….voluntarily admits the commission of an anti-doping policy violation before having received notice of a Sample collection which could establish an Anti-Doping Policy Violation…and that admission is the only reliable evidence of the violation at the time of admission then the period of ineligibility may be reduced, but not below one-half of the period of Ineligibility otherwise applicable“.

The only unclear matter is the clunky wording of the obligation to come clean before receiving “notice of a sample collection which could establish an Anti-Doping Policy Violation”.

If this means you have to come clean before USADA comes knocking on your door to collect a Sample then Machida is out of luck.  If it means that you come clean before the results are revealed then Machida should take advantage of it.

In short Machida arguably meets the criteria of this section.  He can’t get off the hook entirely but he has a fighting chance of getting his penalty reduced, perhaps to as little as one year.

Former Olympian and current UFC fighter Yoel Romero recently made headlines in the world of combat sports by being on the wrong end of a tainted supplements scandal.  In short the United States Anti-Doping Agency independently tested a supplement Romero was using and found it contained a World Anti-Doping Agency banned substance not labelled on the product.

When athletes are accused of doping the ‘tainted supplement‘ defence is frequently raised but rarely proved with the strength of evidence in the Romero case.  So how frequently are supplements ‘tainted’ with banned products?  A recent study published this week in the Journal of Drug Testing and Analysis finds that this is perhaps a widespread problem.

The study, titled “Pharmaceutical doses of the banned stimulant oxilofrine found in dietary supplements sold in the USA” analyzed 27 brands of supplements searching to see if any of them contained the pharmaceutical stimulant Oxilofrine, a WADA banned substance and a stimulant that should not in supplements as it does not meet the legal definition of a “dietary ingredient” in the US.

The study found that 14 of the 27 analyzed brands contained the WADA banned drug, one which “has never been approved for use in the USA as a prescription drug“.

The supplement industry is largely unregulated.  The case of Romero and this study should act as a strong lesson to combat sports athletes to ingest these at their own risk given the ‘strict liability’ world of anti-doping in sports.  As the Romero case teaches, even when proven to be faultless the former Olympian still violated his anti-doping terms and was subject to a six month suspension.

The abstract to the recent study can be found here – and reads as follows:

Oxilofrine (4-[1-hydroxy-2-(methylamino)propyl]phenol) is a pharmaceutical stimulant prescribed in dosages of 16 to 40 mg to stimulate the heart and increase blood pressure. It has never been approved for use in the USA as a prescription drug or as a dietary supplement. Several athletes, however, have been banned from sport for testing positive for oxilofrine and have claimed that they inadvertently consumed oxilofrine in sports supplements. Consumption of supplements containing oxilofrine may also pose serious health risks. For example, one brand of supplements containing oxilofrine has been linked to serious adverse events including vomiting, agitation, and cardiac arrest. We designed our study to determine the presence and quantity of oxilofrine in dietary supplements sold in the USA. A validated ultra-high performance liquid chromatography-quadrupole time of flight-mass spectrometry method was developed for the identification and quantification of oxilofrine. The separation was achieved using a reversed phase column, mass spectrometry detection, and a water/acetonitrile gradient as the mobile phase. The presence of oxilofrine was confirmed using a reference standard. We analyzed 27 brands of supplements labelled as containing a synonym of oxilofrine (‘methylsynephrine’) and found that oxilofrine was present in 14 different brands (52%) at dosages ranging from 0.0003 to 75 mg per individual serving. Of the supplements containing oxilofrine, 43% (6/14) contained pharmaceutical or greater dosages of oxilofrine. Following instructions on the label, consumers could ingest as much as 250 mg of oxilofrine per day. The drug oxilofrine was found in pharmacological and greater dosages in supplements labelled as containing methylsynephrine.