Yoel Romero just received a huge judgment. Will he ever see it?

May 28, 2019

Yoel Romero obtained a judgment against supplement maker Goldstar in state court in New Jersey.  At a hearing to determine damages, the Court issued an order granting him damages totaling $27 million.  Of course, the issue will be collecting on the amount.

Romero was suspended by the UFC for violating the UFC Anti-Doping Policy and was suspended for 6 months.  For working with USADA in determining the alleged tainted supplement, he received a lighter sentence that the guidelines.

Once the source of the alleged failed drug test was identified, Romero decided to sue the supplement company.  Romero used the product Shred Rx made by Goldstar Performance Products.  Despite filing the lawsuit, Goldstar Performance Products never responded to the lawsuit.

According to its web site, the company is based out of East Hanover, New Jersey and features a variety of supplements.  It was noted that the supplement contained Ibutamoren, a banned substance. The substance increases lean body mass to create bigger muscles.

As a penalty for not responding to the lawsuit, Romero moved for an order of default and default judgment.  This came to fruition this past December.

Yoel Romero Default by Jason Cruz on Scribd

In requesting this order from the Court, it essentially confirms that the allegations brought by Romero are true and that a hearing may be set to claim the damages.  On Tuesday, the hearing day came for Romero.  Howard Jacobs, the renowned doping lawyer from Southern California, made a special appearance before the Court to argue the damages for Romero.  It was announced that the Court awarded $27.45 million to Romero.

Of course, this is great.  But, with everything legal, you should leave it up to the lawyers.  Real lawyers.  Obtaining a judgment is one thing.  No doubt a success.  But collecting on the debt is another.

Most MMA fans probably don’t know that there must be another proceeding (a completely separate lawsuit) for Romero to realize on the judgment.  This might include having to pay to get the money from the defendant and even repossessing property to realize on the actual dollar amount.  Even then, it’s unlikely he’ll see that much money.  Moreover, in these situations where a company just flat out doesn’t respond to a lawsuit, the plaintiff is just holding a piece of paper.  Even if there were assets, they may be in line with more senior creditors trying to get money from them.  But most likely, they won’t get the amount the Court granted them.

In the event that Goldstar is still around, there can be several issues at hand.  First, they may be claiming no jurisdiction because they have no contacts with the state court in New Jersey.  This might be a little far-fetched based on its business address and the old “International Shoe” test for you lawyers out there.  Second, they might still appear in the lawsuit within a certain period of time. If so, they can ask the Court to ‘set aside’ the judgment.  There might be a monetary penalty if the Court thinks they were just being lazy, but not a $27.45M penalty.

In the end, the judgment looks great on paper.  But, unfortunately for Romero, it may be that all he’ll have is paper to hold the judgment.  MMA Payout will keep you posted.

Magny reveals reason for withdrawal from Luque fight

May 14, 2019

UFC middleweight Neil Magny revealed that the reason that he had to pull out of his scheduled bout this Saturday was due to notification from USADA that he was being flagged for a potential violation.

Magny announced via social media that he received an email from USADA that an “out of competition” test on May 5th revealed the banned substance of Di-Hydroxy-LGD-4033.  It is an investigational Selective Androgen Receptor Modulator (SARM) for treatment of conditions such as muscle wasting and osteoporosis.  Notably, University of Florida quarterback (at the time) Will Grier was suspended for testing positive for the substance.  NBA player (also UF alum) Joakim Noah was banned twenty games for testing positive for the use.

 

View this post on Instagram

 

As many of you know, I had to withdraw from my sceduled bout against Vicente Luque on Saturday, May 18th. I want to apologize to him, as I know how difficult it is to lose an opponent days out from a fight. Throughout my MMA career I have been very transparent. I am not afraid to admit when I am in the wrong. On Saturday, May 11, 2019, I recieved an email from USADA stating that I have failed an “out of competition drug test” due to the banned substance “Di-Hydroxy-LGD-4033”. I am fully cooperating with USADA to determine how this substance was found in the sample I provided them on May 5, 2019. I have always been an advocate for the strict drug testing in the UFC, even to the extent of opting for my collected samples to be used for research purposes by USADA. I know without a doubt that I have done everything according to the standards set by USADA. I have faith in USADA that this situation will resolved in a timely manner and that I will be cleared of any wrong doing. To all of my fans and supporters, thank you. I assure you that I have not let you down.

A post shared by Neil Magny (@neil_magny170) on

In the example of Noah, an article reporting on the finding claimed he had unintentional made a mistake and that certain dietary supplements may contain the banned substance.

Payout Perspective:

Due to the rule which precludes the announcement of flagged tests, it was not known why Magny pulled out of his co-main event fight against Vinente Luque.  Like other fighters in this position, Magny decided to make the announcement himself rather than let speculation continue over his status.  He is working with USADA so one would hope that if the finding is through a tainted supplement, he is given the benefit of the doubt like others before him.  Magny’s public reveal of this issue shows his transparency which makes him much more credible with USADA and the fans.

USADA cancels the rest of Amanda Ribas’ suspension for ostarine

May 3, 2019

In an interesting turn of events, USADA has granted a reduction of sanction of Amanda Ribas’ period of ineligibility due to a finding of ostarine in a drug test. She is now allowed to return to fight for the promotion.

Ribas tested positive for ostarine on June 7, 2017.  The Brazilian had been serving a two-year sanction.  But Friday’s news eliminates a further sanction for the women’s strawweight.

“USADA believes it is fair to allow Ribas to return to competition after serving the majority of her two-year sanction,” it announced in a standard release.

A key passage in USADA’s release states:

The termination of Ribas’ sanction reflects USADA’s recognition of the demonstrated prevalence of ostarine in a wide range of supplement products used by athletes (see USADA High Risk List for more than 70 products) and that ostarine has frequently been found as a product contaminant. The trace amounts of ostarine found in Ribas’ sample was made possible by sensitive laboratory detection capabilities and has been followed by four negative tests. As Ribas was unable to identify the source of her positive test, and taking into consideration the likelihood that her positive test was the result of an ostarine contaminated dietary supplement product, USADA believes it is fair to allow Ribas to return to competition after serving the majority of her two-year sanction.

Ribas’ reduction in sanction comes right after USADA reduced suspensions for tainted supplements of four fighters.

Payout Perspective:

This is a pretty big deal as USADA has never revisited a previous violation.  Also, this brings up the issue with prior fighter sanctions and whether reparations should be in order for those that have served suspensions without USADA revisiting their case.  The overarching standard is that the athlete is responsible for what they ingest.  Even if the athlete ingests a contaminated supplement, they are subject to the mandatory two-year suspension.  Recently, it appears that USADA is softening its stance on the hardline mandatory two-years with some, like Walt Harris receiving just 4 months.  Even Harris has threatened legal action due to the sanction as his test was due to a contaminated supplement.

It appears that UFC Anti-Doping Program is transitioning into assessing the issue with contaminated supplements.  While this may be an added improvement, the refrain from fighters scarred by the previous program will be a public relations issue.

Harris threatens lawsuit against supplement maker/distributor after serving USADA suspension

May 2, 2019

UFC Heavyweight Walt Harris states that he will take legal action against the maker and distributor of a supplement that caused him to be suspended per the UFC Anti-Doping Policy.

A win over Andrei Arlovski was overturned due to the failed USADA test.  It was discovered that a supplement he ingested was tainted with the anabolic agent LGD-4033.

Harris, speaking to reporters this week ahead of his upcoming fight against Sergey Spivak, he indicated that he was upset about his reputation being damaged.  Issues of jurisdiction remain a question prior to filing of Harris’ lawsuit according to his representatives.

In recent memory, Lyman Good and Tim Means have filed lawsuits against supplement makers and distributors based on their USADA suspensions.  Both cases are still pending New York and New Mexico respectively.

USADA had reduced its mandatory two-year sentence for a first offense to four months due to mitigating circumstances as Harris worked with USADA and was able to pinpoint the supplement which caused the issue. It was Harris’ first offense.

Payout Perspective:

While Harris may have viable claims, the question will be whether he will want to endure the time and cost it will take for him to go through a lawsuit.  Also, is he willing to disclose information about his earnings to recover damages and restore his name?  Harris received just a 4-month suspension and had his win reversed to a no-contest. Damages may be minimal as opposed to the legal costs involved.  MMA Payout will keep you posted.

USADA announces sanctions for four UFC fighters for Ostarine

April 23, 2019

USADA announced that four UFC athletes have accepted six-month sanctions for violating the UFC Anti-Doping Policy for trace amounts of ostarine “consistent with supplement contamination.”

Via USADA release:

USADA has resolved the following cases, after conducting a thorough investigation and finding no evidence of intentional use, consistent with other supplement contamination cases:

  • Augusto Mendes, 36, of Glendale, Ariz., tested positive for ostarine following an out-of-competition test conducted on March 7, 2018. He accepted a six-month period of ineligibility that began on March 20, 2018, the date he was provisionally suspended from competition.
  • Marvin Vettori, 25, of Mezzocorona, Italy, tested positive for ostarine following an out-of-competition test conducted on August 24, 2018. He accepted a six-month period of ineligibility that began on August 24, 2018, the date he was provisionally suspended from competition.
  • Sean O’Malley, 24, of Phoenix, Ariz., tested positive for ostarine following out-of-competition tests conducted on September 5, 2018 and December 8, 2018. His two positives were treated as a single, first violation because the amount of ostarine in both samples is consistent with ingestion prior to September 5, 2018. He accepted a six-month period of ineligibility that began on September 19, 2018, the date he was provisionally suspended from competition.
  • Nicco Montano, 30, of Albuquerque, N.M., tested positive for ostarine following an out-of-competition test conducted on October 25, 2018. She accepted a six-month period of ineligibility that began on November 15, 2018, the date she was provisionally suspended from competition.

Payout Perspective:

The blanket six-month sanction for these four fighters may bring into question of the use of ostraine and its contamination with other supplements.  It also brings back the controversial two year sanction for Tom Lawlor.  The former UFC fighter, now mostly pro wrestler had his career in the promotion come to an end because they could not pinpoint the ostarine that showed up on a failed USADA test.  These light sentences was blasted by Lawlor on social media.

UFC Heavyweight punished four months for banned dietary supplement

April 22, 2019

UFC Heavyweight Walt Harris has accepted a four-month sanction for utilizing a banned substance.  Due to his cooperation with USADA, Harris’ suspension was reduced to just four months and he will be able to return to the Octagon on April 30th.

Via USADA:

Harris, 35, tested positive for LGD-4033 as the result of an in-competition urine sample he provided on December 29, 2018 that was collected by the California State Athletic Commission (CSAC) at UFC 232 in Inglewood, Calif. LGD-4033 is a non-Specified Substance in the class of Anabolic Agents and prohibited at all times under the UFC Anti-Doping Policy (UFC ADP), which has adopted the World Anti-Doping Agency (WADA) Prohibited List.

Following notification of his positive test, Harris provided USADA with information about a dietary supplement product he was using before and at the time of the relevant sample collection. Although no prohibited substances were listed on the supplement label, analysis conducted on both the open and independently sourced, unopened containers of the product by the WADA-accredited laboratory in Salt Lake City, Utah, indicated that the product contained LGD-4033.

Although not stated in the report, there is an over the counter supplement known as Ligandrol which claims to build muscle mass.

Payout Perspective:

It appears that this is another case of where the athlete just didn’t know that a banned substance was in the supplement because it was not on the label of ingredients.  Fortunately for Harris, he has served his short suspension without losing out on any fights as it was unlikely he’d have come back this soon after his December fight.

UFC lightweight returns from six-month USADA suspension from contaminated supplement

April 11, 2019

UFC lightweight Mairbek Taisumov has accepted a six-month suspension from USADA for testing positive for a prohibited substance.  Taisumov indicated that the failed test was likely due to a contaminated dietary supplement.

Stanozolol metabolites were found in an in-competition urine sample he provided at UFC Fight Night in Moscow, Russia this past September.

Via USADA release:

Following notification of his positive test, Taisumov provided USADA with information about dietary supplement products he was using before and at the time of the relevant sample collection. USADA obtained open packages of the dietary supplements and collaborated with the Russian Anti-Doping Agency (RUSADA) to source unopened packages from Russia. Although no prohibited substances were listed on the supplement labels, product analysis conducted on both the open and independently sourced, unopened packages of the products by the WADA-accredited laboratory in Salt Lake City, Utah, indicated that they all contained stanozolol.

The 30-year-old’s period of ineligibility began on October 8, 2018 when he was put on his provisional suspension.

Payout Perspective:

 Taisumov did not miss too much time as he is able to return to the Octagon this month.  The contaminated product was verified by the WADA-accredited lab reflecting that the supplement did not indicate on the label that it had a banned substance, yet it did.  An issue that punishes the fighter despite reading product labels.

EPO found in Dillashaw’s USADA tests, accepts 2-year ban

April 10, 2019

T.J. Dillashaw has been suspended by USADA for two-years for a violation of the UFC Anti-Doping Policy after testing for the prohibited substance EPO.  The former bantamweight champion has accepted the sanction.

The 33-year-old tested positive for recombinant human erythropoietin (rHuEPO) as a result of an in-competition sample provided on the day of his fight against Henry Cejudo, January 18, 2019.  EPO, as the banned substance is commonly known, is notorious among the cycling community for its benefits with aerobic performance.  EPO is a hormone naturally produced by the kidneys.  However, it can be artificially produced to improve the performance of athletes.  It stimulates the body’s production of red blood cells, thereby increasing oxygen transport and aerobic power.

According to ESPN’s Brett Okamoto another Dillashaw out-of-competition test from December 2018 was retested and showed EPO.  The reason it was not noticed previously according to Okamoto was due to the nature of the testing for the drug.

Dillashaw’s acceptance of the sanction likely means that there were no defenses which could save him from penalty.  Moreover, with his attempt to be a double champ and the well-documented weight cut down to 125, it seemed as though Dillashaw was superhuman.  Unfortunately, that was not the case.

Payout Perspective:

Dillashaw’s legacy is tarnished for now and we will see what becomes of him if and when he returns to the sport.  His tenacity, skill and effort seemed to be at a championship level but with this revelation, it’s tainted.  USADA will need to evaluate whether it is necessary for it to test for EPO since it does not always do that when testing athletes.

Lifetime ban issued to UFC heavyweight Ruslan Magomedov

April 1, 2019

USADA announced its first lifetime ban as a result of violations of the UFC Anti-Doping Policy as UFC heavyweight Ruslan Magomedov was issued the sanction for his second and third violations.

 

The 32-year old was 3-0 in the UFC but his last fight was in October 2015 as he posted a unanimous decision win over Shawn Jordan.

 

Previously, Magomedov received a two-year sanction from USADA for the presence of ostarine in a September 2016 test.  He had claimed that he was using a contaminated supplement but USADA could not confirm this allegation.  The case (along with that of Zubaira Tukhgov) were consolidated and went to arbitration where USADA prevailed.

Via USADA press release:

Magomedov, 32, received a second violation after he tested positive for methyltestosterone metabolite 17α-methyl-5β-androstan-3α, 17β-diol, as well as stanozolol metabolites 3’-hydroxystanozolol-O-glucuronide, 16β-hydroxystanozolol-O-glucuronide, and stanozolol-N-glucuronide, as the result of an out-of-competition urine sample he provided on October 10, 2018. Methyltestosterone and stanozolol are non-Specified Substances in the class of Anabolic Agents and prohibited at all times under the UFC Anti-Doping Policy, which has adopted the World Anti-Doping Agency (WADA) Prohibited List.

Magomedov refused to take a sample collection from a request by a doping control officer during an out-of-competition test on February 5, 2019.  As indicated by the release, the refusal or failure to submit to a sample collection without compelling justification is grounds for a doping violation.

Payout Perspective:

This is the harshest penalty doled out by USADA as Magomedov is now permanently gone from the UFC unless he appeals the decision.  One might infer that his refusal to take the February 5, 2019 random drug test meant that he was concerned that he would test positive and instead of submitting to a test he decided not to do it.

Loss of supplement bottle at center of Motion to Dismiss Lyman Good’s case

March 22, 2019

The drug maker and distributor in Lyman Good’s lawsuit for a tainted supplement brought a motion to dismiss his claims for spoliation of evidence last month.  The UFC fighter took a supplement which caused him to fail a USADA drug test and miss out on a bout.  The motion to dismiss claims that Good and/or his lawyer did not retain the alleged supplement which caused the failed test.

Good’s lawyer and fight manager David Fish indicated that it was lost in the mail after it was sent to a laboratory for testing.  However, the drug maker and distributor contend that this is a false narrative.

Defendants Gaspari Nutrition, Inc., Hi-Tech Pharmaceuticals, Inc., and Vitamin Shoppe, Inc.   have brought this motion for spoliation of evidence.  The motion is based on the discovery rules which allows for the dismissal of a lawsuit if a party does not preserve evidence.  According to Good, the remedy is an extreme one as the fighter’s attorney argued that the “missing Anavite bottle” is not the key piece of evidence and is not the ultimate question for the trier of fact.

The elements for destruction of evidence are:

  1. That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
  2. That the records were destroyed “with a culpable state of mind”;
  3. That the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

“Culpable state of mind” essentially means that there was knowledge and intent to destroy the evidence.  Even if there was mere negligence on the part of the party, it would still qualify.

In its opposition to the moving papers, Good argues that there is nothing to justify dismissal of his lawsuit due to the allegations of “spoliation” of evidence.  He further argues that the “missing Anavite bottle” is not essential to the heart of the lawsuit. Calling it a “red herring” Good argues that the identity of the manufacturer of the product and the existence of a product defect are issues of fact capable to prove via circumstantial evidence.  This would mean that Good could prove the defect even if the actual bottle of alleged tainted product was not present.

In its moving papers, defendants point to Good’s initial argument that it had sent a bottle of Anavite to be analyzed by LGC Science, Inc. (“LGC”). Per defendants, LGC could not identify the anabolic steroid despite representations by Good in his first lawsuit that it did.  It was not until LGC corrected Good did he change his lawsuit to reflect this.  The episode infers a pattern by Good of not stating the truth.  If a court were to accept such an argument, it may side with defendants in dismissing the case.

Defendants also point to the fact that Good did not list the use of Anavite on his USADA “Declaration of Use” form.  Even when he clarified his form to include another supplement, Anavite was not listed.  Defendants create the suspicion based on these “lapses of memory” that Good was selectively recalling information for his benefit.

The misplacement of the bottle of Anavite by Good is called into question as when it was requested of Good, he indicated that he gave the bottle to his attorney and manager David Fish.  Fish indicated that he had it and sent it to counsel for testing but it was never received.

Defendants proclaim this to be a case of spoliation of evidence where Good has destroyed the Anavite bottle on purpose to ensure that it would not be tested.

Defendant Vitamin Shoppe argued that Good could not establish the manufacture of the product ingested could not be identified by “circumstantial evidence” as argued.

While the defendants had claimed that Good’s attorney should recuse himself due to the loss of the evidence, they backed off from this threat claiming that it would cause an undue hardship on Good.  Still, the dismissal of the case would be another extreme measure if they can convince a court that the loss of the bottle is central to the lawsuit.

Certainly, the lack of product may have been evidence which defendants could have tested and mitigated their liability.  If it was found not to have the banned substance, they would be not liable.  If it had the banned substance, they can assess the origins of it determine its origins.

Since the Motion to Dismiss was filed, Good has filed a motion to preclude the defendant’s experts which would exclude their testimony at the time of trial.  This is in anticipation of the Court denying the motion and the case moving to trial.

This would seem to be a safe assumption.  The Motion to Dismiss is a home run in this instance.  While the rules for destruction of evidence has dismissal of the case as a repercussion.  This does not seem to be what has happened here.  Although defendants make the argument that even gross negligence should be considered as a means of spoliation with intent, the Court will likely side with Good here.

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