Compounding pharmacies cause of 3 UFC fighters’ failed USADA tests

April 23, 2018

Junior dos Santos, Antonio Rogerio Nogueira and Marcos Rogerio de Lima have accepted six-month USADA suspensions after their supplements were traced back to compounding pharmacies that allegedly sold tainted supplements.

Compounding pharmacies prepare their medications onsite according to specifications contained in a written prescription instead of receiving their drug inventories like retail pharmacies and drugstores.

Via USADA release:

Despite their claims, the compounding pharmacies, located in Rio de Janeiro and Sao Paulo, Brazil, sold contaminated supplements to Junior dos Santos Almeida and Antonio Rogerio Nogueira, who each tested positive for hydrochlorothiazide, and Marcos Rogerio de Lima, who tested positive for hydrochlorothiazide and anastrozole. These substances are prohibited at all times under the UFC Anti-Doping Policy, which has adopted the World Anti-Doping Agency (WADA) Prohibited List.

After testing supplements the athletes provided to USADA, the WADA-accredited laboratory in Salt Lake City confirmed the presence of multiple prohibited substances in the products. Through an ongoing investigation, USADA independently sourced supplements from the compounding pharmacies, which the Salt Lake City laboratory confirmed were also contaminated with hydrochlorothiazide, anastrozole, and several additional prohibited substances. Autoridade Brasileira de Controle de Dopagem (the Brazilian national anti-doping agency) and law enforcement agencies in Brazil assisted USADA’s investigation.

“We appreciate the cooperation of the athletes and international authorities in getting to the bottom of this situation, as it will hopefully prevent these problems from occurring in the future,” said Travis T. Tygart, CEO of USADA. “It’s unacceptable that these compounding pharmacies produced contaminated supplements for the public. And it’s another unfortunate example of why athletes must use extreme caution if using nutritional supplements. All too often, supplement products contain undeclared substances, including prohibited drugs, that can be dangerous to an athlete’s health. We are doing all we can to ensure that these types of suppliers are held accountable for introducing dangerous products like these into the marketplace.”

The contaminated products rule set forth in the UFC Anti-Doping Policy and the WADA Code provide the opportunity for a reduction in the otherwise applicable period of ineligibility if it is established that the positive test resulted from the use of a contaminated product.

“The rule recognizes that supplements can be a risk and also guards against unfounded and unfair reductions by requiring a thorough investigation of all claims of ‘contamination.’ The rule also ensures that athletes are not overly penalized when they have been diligent in what they use, and when it is proven the source of the positive is from a contaminated product, like in these cases,” Tygart said.

Following USADA’s investigation, Almeida, De Lima, and Nogueira, who all used compounded supplements at the direction of their respective physicians or nutritionists, each accepted reduced six-month periods of ineligibility that ended upon the resolution of their cases. As such, the athletes are immediately eligible to return to competition.

Given the evidence that compounding pharmacies can pose a threat to the health and safety of Brazilian athletes, as well as the public at large, USADA will continue working with law enforcement and regulatory agencies in Brazil to investigate the operations of the offending pharmacies.

Payout Perspective:

This is another example of the issues with the UFC Anti-Doping Policy.  While there is an overarching standard that the athletes are responsible for what they ingest, this case shows that this standard may be unfair.  JDS was taken off of a fight against Francis Ngannou at UFC 215 in September 2017, giving 8-10 months of unwanted inactivity to clear his name.  It does appear that there was cooperation from all 3 fighters in order to avoid an arbitration to oppose the ruling.  Yet, the time off, more than a 6 month suspension, cannot be regained.

UFC Fight Night 128 attendance, gate and bonuses

April 21, 2018

UFC officials announced the attendance, gate and bonuses for UFC Fight Night 128 at Boardwalk Hall in Atlantic City Saturday night

The event drew 9,541 for a gate of $923,720.  The bonuses went to David Branch and Siyar Bahadurzada for their finishes and the Fight of the Night went to Merab Dvalishvili and Ricky Simon.  In what many thought was a controversial finish, Sirmon won via Technical TKO when he had choked out Merab at the bell of the final round.  Merab was ahead of the scorecards at that point.

Payout Perspective:

Some nice fights during the night although the pacing of these FS1 cards go at a snail’s pace with prepackaged video montage after another.  The attendance and gate numbers are par for the course with Fight Night events.

Court decides Povetkin-Wilder Summary Judgment motions

April 20, 2018

The Southern District of New York has ruled on dueling Summary Judgment motions from Alexander Povetkin and his promoter of World of Boxing and Deontay Wilder.  In a ruling issued Thursday, the court has granted in part and denied in part both parties’ motions.   However, a closer read reflects that World of Boxing made out better than Wilder.

Opinion and Order by JASONCRUZ206 on Scribd

The Court first notes that despite a jury trial finding that Povetkin ingested Meldonium after January 1, 2016, he did not breach the bout agreement.

From the Court opinion:

It has been conclusively determined as a result of the jury trial in this matter that Povetkin ingested Meldonium after January 1, 2016.  It is undisputed that Povetkin’s urine sample provided to VADA on April 27, 2016 tested positive for Meldonium. Nonetheless, neither of these is a breach of the Bout Agreement.

The opinion relies on the contract terms and the rules agreed to by the parties infers that there it “does not require absolute abstinence from the use of banned substances, but by its terms requires that the boxer abide by “WBC anti-doping requirements.”  In turn, the CBP also provides that “the WBC shall have complete discretion to rule on culpability . . . . [And] may in its discretion consider all factors in making a determination regarding responsibility, relative fault, and penalties, if any.”

One might consider this a broad interpretation of the contractual provision regarding banned substances.   The Court goes on to essentially tell us that the jury trial didn’t matter because the WBC didn’t believe it could determine that Povetkin did not violate the Bout Agreement:

In this case, after issuing several conflicting and indecisive rulings, the WBC finally decided on November 7, 2017 that notwithstanding the jury’s verdict in this case, it would adhere to its earlier decision that it was not possible to determine whether Povetkin ingested Meldonium after January 1, 2016.  In other words, the WBC exercised its discretion to determine that Povetkin did not violate the CBP [Clean Boxing Program, the drug testing entered into by the boxers].”

In addition, the Court has released the escrow funds held up by Deontay Wilder after the fight did not go forward.  However, the Court did not grant WOB the $2.5 million in liquidated damages that was included in the escrow agreement which would have been triggered if it was found that there was a breach.  The Court noted that there was not a judgment filed against Wilder and that his representatives made the objection for disbursement in accordance with the agreement.  The Court did not find a breach of implied covenant of good faith and fair dealing. It also did not find Wilder guilty of breaching the Bout Agreement for not showing up in Russia for the fight as the Court opines that there was no evidence of his absence for the fight in Russia caused the cancellation.

A teleconference on the case will take place on April 26th.  At this point, the only claim that is left is WOB’s defamation claim which was stayed by the Court.

Payout Perspective:

It appears that the long, winding road of this litigation may be over pending an appeal.  And, it would not surprise me if an appeal would be in order.  The opinion essentially mutes any reason for the February 2017 jury trial which found that Povetkin ingested Meldonium post-January 2016.  The Court relies on the WBC’s later ruling on the matter to conclude that there was no actual breach of the Bout Agreement.  Frankly, the claim that “absolute abstinence” from taking banned substance is not a part of the Bout Agreement, rather compliance with the drug regulator is absurd.  Not only does it parse the meaning of the reason behind not taking banned substances, it is a “lawyerly” way around taking a hard-line approach on illegal drugs.

 

The issue of the Escrow Agreement is another interesting ruling but one that seems to have been decided correctly.  Although one might infer that Wilder attempted to hold up payment (or reimbursement) to WOB or Povetkin, it was the correct way to decide the disbursement of funds.  I don’t think that this part of the matter will be over yet.

 

MMA Payout will have more on this in the coming days.

TUF 27 Episode 1 draws 200,000 viewers

April 19, 2018

The debut of The Ultimate Fighter 27 featuring coaches Daniel Cormier and Stipe Miocic on FS1 drew 200,000 viewers Wednesday.  The telecast is the lowest debut yet for the TUF franchise.

Last spring’s TUF 25 drew 288,000 viewers with coaches T.J. Dillashaw and Cody Garbrandt.  This fall’s TUF 26 drew 308,000 with coaches Justin Gaethje and Eddie Alvarez.

Payout Perspective:

The episode went up against the NBA Playoff game between the Minnesota Timberwolves and the Houston Rockets on TNT which was the highest telecast on cable Wednesday night drawing over 3.4 million viewers.  Even with the competition, it’s clear that the TUF franchise is one where you have to look to the DVR numbers to see how many people are really tuning in.  The declining live numbers reflect the shift in how viewers watch this franchise.

Canelo agrees to NAC suspension for drug test failure

April 18, 2018

At Wednesday’s Nevada Athletic Commission disciplinary hearing, Canelo Alvarez entered into an Adjudication Agreement agreeing to a six month suspension of his boxing license for failing two drug tests with the presence of the banned substance Clenbuterol.

MMA Payout has obtained a copy of the Adjudication Agreement from the NAC via public records request:

Saul Alvarez – Adjudication Agreement – Signed by JASONCRUZ206 on Scribd

Payout Perspective:

The six-month suspension seems fair considering Alvarez denies wrongdoing but decided not to defend his claims.  The suspension, convenient or not, allows Alvarez to return to the ring in September right around the time of Mexican Independence Day weekend – a traditional boxing PPV date.  The Agreement includes a paragraph citing that Alvarez denies intentionally taking Clenbuterol and another indicating he believes the cause was due to contaminated meat.  Regardless, this gives Alvarez the spring off to get ready for September.  Will there still be bad blood between Alvarez and the commission if/when he’s allowed to concern?  Or, will Golden Boy put it past them when their fighter comes back (and decides the venue of the event) considering the amount of money they’ll make when Canelo finally gets in the ring with GGG.

UFC on Fox 29 draws over 2M viewers; Prelims on Fox 970K

April 17, 2018

UFC on Fox 29 drew 2,020,000 viewers including the overrun for the main event featuring Dustin Poirier-Justin Gaethje.  The UFC on Fox 29 Prelims which aired on Fox prior to the main card drew 970,000 viewers.

UFC on Fox 29 drew 790,000 viewers in the A18-49 demo and an overall household rating of 1.25.  The Prelims garnered 356,000 viewers in the A18-49 demo and an overall household rating of 0.65.

The Prelims are a decrease from February’s UFC on Fox 28 which drew 1,214,000 viewers on the network.  Last July, the Prelims on Fox drew 1.137 million viewers.

Payout Perspective: 

The telecast improved from its initial fast overnight rating of 1.78 million viewers.  It did draw slightly above 2 million viewers but reflects the continued decrease in ratings for the network national broadcasts.

Report: UFC nearing next TV deal?

April 17, 2018

Variety reports that ESPN and Fox Sports are coming together to bid for the television rights for the UFC.  The companies will split the UFC TV package and we will see 15 fight events moving to new subscription streaming service ESPN+.

ESPN, according to sources, ESPN is willing to pay $120-$180 million per year.  Fox currently pays $120 million per year.

The number of fights from Fox would “decline slightly” according to the report.

Last spring a Sports Business Journal article indicated that the UFC was looking for a rights package of $450 million per year.  The Variety article notes that it reportedly sought $300-$400 million per year.

But the ratings decline on Fox are glaring.  The article states that Saturday-night broadcasts fell 22% from the previous year.  This past Saturday’s UFC on Fox 29 barely surpassed 2 million viewers after the overrun.  The “UFC Fight Night” on FS1 averaged 795,000 viewers this year which is reportedly down 17%.

Payout Perspective:

If the rumored deal comes to fruition, it will represent a shakeup for UFC TV that will likely affect UFC Fight Pass.  In passing, articles on the media deal have indicated that the digital platform has approximately 400,000 subscribers.  With the launch of ESPN’s new OTT platform, the UFC will contribute to the variety of content offered.  But, this may mean a loss of exclusivity for Fight Pass which may have to rely on its library to keep its subscription base as MMA fans will have another bill to pay.

Zuffa files opposition to Plaintiffs’ Motion for Class Certification in Antitrust Lawsuit

April 16, 2018

Earlier this month Zuffa filed its opposition to the Plaintiffs’ motion for class certification in the Antitrust lawsuit filed in Nevada.  Back from Spring Break, MMA Payout takes a look at the motion.

Zuffa Oppo to Class Cert by JASONCRUZ206 on Scribd

Under Federal Rule of Civil Procedure 23 are four elements needed to show class action status is viable: Numerosity, Commonality, Typicality, and Adequacy.  Zuffa argues against each element for class action status.

The opposition brief goes in depth on the reasons why the 6 named Plaintiffs cannot represent the two broad classes contracted by Zuffa.  They argue that the claims are not the kind that should be decided as a class.  Rather, one of their main arguments is that the factual claims set forth by each plaintiff differ and there is no “typicality” of defenses or “commonality” of evidence.  Zuffa argues that the expert reports and opinions submitted by Plaintiffs are insufficient to buttress the argument that the claims are those that can be tried through class action certification.

The two classes that Plaintiffs seek to represent are the “Bout Class,” the class of athletes who competed in UFC bouts during the class period and the “Identity Class,” those athletes alleged to have their identities “expropriated” by Zuffa.  Nathan Quarry is the only named plaintiff to be a part of the Identity class according to Zuffa.

Zuffa outlines reasons why the Bout Class is defective:

  1. Plaintiffs cannot adequately represent the class because none of them currently compete in UFC promoted bouts, and their claims are not typical of others in the putative class, such as the current athletes they seek to represent.
  2. Plaintiffs cannot establish the requisite elements of an antitrust violation with common evidence. Essentially, Zuffa argues that the class of purported affected individuals is vast and a finding that the entire class was “coerced” into exclusive contracts is unlikely.  Zuffa also cites that the existent of local markets for live MMA entertainment means that individual issues predominate for all of those markets.
  3. Zuffa does not have a pay structure or follow a policy of “internal equity” according to the legal filing. They argue that the regression theory posited by Plaintiffs “cannot distinguish whether common or individual factors account for the variations in athlete compensation.”
  4. Zuffa also claims that the putative class is “unmanageable” due to the inability for Plaintiffs to identify which athletes would still be competing for Zuffa or any other MMA Promoter

Zuffa argues that the Plaintiffs’ cases are not typical of one another.  The “test of typicality” looks to “whether other class members have been injured by the same course of conduct.” The requirement evaluates whether defendant’s defenses would be similar for the Putative class representative.  Zuffa argues that the defenses vary based upon the athlete.  It identifies having varied defenses when dealing with Plaintiff Nathan Quarry, Brandon Vera, Cung Le, Javier Vazquez, Jon Fitch and Kyle Kingsbury.

The purpose of “adequacy” is to “uncover conflicts of interest between named parties and the classes they seek to represent.”  Here, Zuffa argues that the Plaintiffs are retired or compete elsewhere.  None of the Plaintiffs currently fight in the UFC.  Thus, they would not be representative of the current class of UFC fighters as Zuffa argues that they would be more interested in money damages rather than injunctive relief.

In its argument rebutting the commonality element for class action status which allows certification if questions of law or fact common to class member predominate, Zuffa argues that Plaintiffs’ alleged theory of liability is incapable of proving liability with common evidence.  Here, Zuffa argues that the factual issues for each case differs and the commonality requirement would not apply here.  Zuffa goes on to argue with respect to the allegation that athletes were “coerced” into UFC contracts, Plaintiffs’ claims require “mini-trials for each plaintiff and class member on the issue of whether they voluntarily entered into their contracts.” Additionally, they claim that individualized evidence will be required to determine injury and show an antitrust violation.

The opposition motion includes declarations from Stephan Bonnar, Kenny Florian and Jim Miller which reflect the tone that the fighters made a choice to fight in the UFC instead of being forced to do so because of the economic market conditions.

Here are some other observations:

-Zuffa cites the U.S. Supreme Court case of Comcast Corp., et al. v. Behrend, et al. which found that the plaintiffs in that case failed to establish a sufficient connection between their alleged theory of liability and their claimed damages.  Highlighted in the opinion was the need to conduct a “rigorous analysis” to determine whether the standard has been met.  Similarly, Zuffa argues that the Plaintiffs have a similar problem with their case.

-According to an excerpt from Michael Mersch’s deposition, in order to re-sign Zuffa athletes before their contracts expire, the company offers higher guaranteed compensation for their next bout as an incentive to sign a new agreement.  Zuffa argues that the individual athlete makes the decision as to whether to sign or not and their reasons differ on the decision.

-Zuffa notes that there is “no testimony that promoters could not obtain MMA athletes during the class period.”

-The opposition argues that Plaintiffs have switched course in the argument of a combination of monopoly and monopsony allegations but a “multi-faceted “Scheme” of only monopsony-related claims.”

-Zuffa argues that Plaintiffs’ attempt to merely offer proof of harm that is widespread across the class is not sufficient as they must need to prove class wide harm.  They also state that the antitrust claims asserted here are not routine for class action lawsuits.

-Zuffa notes, “[A]lthough Plaintiffs suggest class certification in antitrust cases is routine, no court has

granted class certification in a Sherman Act Section 2 monopsonization case involving allegations

based on unilateral conduct.”

-With respect to their motion to exclude the opinions of Plaintiffs’ experts Drs. Singer and Zimbalist under Daubert, Zuffa argues that regardless of the outcome from the Court, it may still conclude that class certification should be denied.

Payout Perspective:

 The obvious objective of the opposition is to show that Plaintiffs’ claims cannot be tried as a whole and must be tried individually.  If this were to occur, the Plaintiffs would be in a bind logistically and economically as they would be left to prosecute cases for each of the athletes involved in the lawsuit.  Additionally, this would lessen their leverage of settling the cases as well as foreclosing a potential for larger award if they prevail.  Zuffa also stresses the Comcast case in its argument that under a “rigorous analysis” that Plaintiffs liability theory and damages are not tied.

Poirier tops UFC on Fox 29 roster payouts

April 16, 2018

MMA Junkie has obtained the payouts from Saturday night’s UFC on Fox 29 card.  Dustin Poirier topped the roster of fighters with $170,000 for his victory over Justin Gaethje. Gaethje received $110,000 for his efforts in addition to the $50,000 Fight of the Night Bonus with Poirier.

Carlos Condit ($115,000) and Alex Oliveira ($100,000) were the other fighters to make six figures on Saturday.

The rest of the payouts as disclosed by the Arizona Boxing & MMA Commission.

Dustin Poirier: $170,000 (includes $85,000 win bonus)
def. Justin Gaethje: $110,000

Alex Oliveira: $100,000 (includes $50,000 win bonus)
def. Carlos Condit $115,000

Israel Adesanya: $106,000 (includes $53,000 win bonus)
def. Marvin Vettori $20,000

Michelle Waterson: $80,000 (includes $40,000 win bonus)
def. Cortney Casey $33,000

Antonio Carlos Junior: $80,000 (includes $40,000 win bonus)
def. Tim Boetsch $72,000

Muslim Salikhov: $20,000 (includes $10,000 win bonus)
def. Ricky Rainey $14,000

John Moraga: $74,000 (includes $37,000 win bonus)
def. Wilson Reis $31,000

Brad Tavares: $80,000 (includes $40,000 win bonus)
def. Krzysztof Jotko $36,000

Gilbert Burns: $56,000 (includes $28,000 win bonus)
def. Dan Moret $12,000

Lauren Mueller: $20,000 (includes $10,000 win bonus)
def. Shana Dobson $12,000

Yushin Okami: $70,000 (includes $35,000 win bonus)
def. Dhiego Lima $15,000

Adam Wieczorek: $24,000 (includes $12,000 win bonus)
def. Arjan Bhullar $12,000

Alejandro Perez: $50,000 (includes $25,000 win bonus)
ef. Matthew Lopez $33,000

Luke Sanders: $24,000 (includes $12,000 win bonus)
def. Patrick Williams $12,000

Payout Perspective:

Gaethje has earned 4 bonuses in his 3 fights in the UFC.  He is an entertaining fighter with a style that is not long for a career.  But, he is making a lot of fans while he’s here.  Returning Yushin Okami made $70,000 ($35K and $35K).  It was his second fight in the UFC since returning from the PFL. His last fight in the PFL he made $50,000 ($25K and $25K).  Oliveira, filling in for Matt Brown, collected $150,000.  The Cowboy made $50K and $50K plus another $50K performance bonus for his upset over Condit

[UPDATED with CA ratings] Bellator MMA draws just 242K on Paramount Network

April 16, 2018

Bellator MMA drew just 242,000 viewers on The Paramount Network Friday night per Nielsen via ShowBuzz Daily.  The simulcast on CMT drew an additional 161,000.

In the main event, Michael Chandler defeated Brandon Girtz in the first round via technical submission with an arm triangle choke after Girtz was put to sleep with the submission.  On The Paramount Network, it drew 0.09 in the A18-49 demo.  On CMT, it drew 0.07 in the A18-49 demo.

Notably, Combate Americas ran an event later that night on Univision and drew 181,000 viewers.  It did 0.10 in the A18-49 demo.

UPDATED 4/17/18:  According to Nielson, Combate Americas on Friday, according to Nielsen, ratings for the live simulcast was 583,000 P2+ viewers, and 296,000 viewers in the 18-49 year old category.

Payout Perspective:

These ratings have to be disappointing for Bellator as it sinks to another ratings low.  Prior to this week, last Friday’s event featuring Benson Henderson drew 420,000 viewers.  This week saw almost half those viewers return on Paramount.  The CMT viewership combined brings the total viewership to just 423,000 viewers.  Combate Americas on the Univision Network drew just 181,000 viewers but with less expectations.  Moreover, it drew more in the younger demo than either showing of Bellator on either network.  Granted, the CA was on later in the evening than Bellator, but the ratings for the promotion are not going in the right direction.

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