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.

Dillashaw drops bantamweight title after adverse drug test finding

March 20, 2019

In a surprise announcement, former UFC bantamweight champion T.J. Dillashaw announced that he was vacating his title after he received an adverse finding related to his January fight against Henry Cejudo.  The New York State Athletic Commission has issued a one-year suspension per ESPN.

Via Dillashaw’s Instagram:

 

View this post on Instagram

 

A post shared by tjdillashaw (@tjdillashaw) on

Due to USADA’s rule that it would not disclose provisional suspensions to the public until a resolution, we would not have known of this until a decision.  But, Dillashaw decided to voluntarily make it known to his fans via his Instagram account.

Payout Perspective:

Dillashaw’s weight cut for the Cejudo fight was well documented by ESPN.  The article includes a now ominous photo of a dozen or more supplements that Dillashaw was utilizing in preparation for his fight. One would assume that one or more of those supplements may have been the culprit which caused the adverse finding.  While some may have fought the ruling, it seems as though he will not dispute the New York State Athletic Commission suspension.  He still has USADA discipline to face which might include up to two more years from fighting although there have been instances where suspensions are reduced for mitigating circumstances.

The news stifles Cejudo’s quest for a rematch against Dillashaw to obtain the Flyweight and Bantamweight titles.  He still may go after the title and a potential matchup with Marlon Moraes is being fought on twitter.

NAC issues statement on Jon Jones drug tests

March 2, 2019

Two of Jon Jones’ latest drug tests have turned up positive for the same banned substance as in the past.  In response, the Nevada State Athletic Commission has issued a statement.

“Mr. Jones has been cooperative with the NSAC and has submitted to multiple drug tests conducted by the NSAC, the Voluntary Anti-Doping Agency (VADA), and the United States Anti-Doping Agency (USADA).”

On back-to-back days, there were findings of DHCMT M3 detected 40 pg/mLm.  However, there were also tests that provided no adverse findings.

The statement was done in anticipation of questions regarding Jon Jones’ testing.

Notably, there was no fight press conference for the UFC 235 fighters.  Likely, in anticipation of questions concerning Jones’ drug tests.  This past December, Jones took heat from a reporter about his failed drug tests.  From the UFC perspective, the decision not to conduct a press conference for press week likely helped the company control the story.

Jeff Novitsky took questions about it during the full media scrum on Friday.  In response to the NSAC statement, Novitsky indicated that it “would not affect the fight.”

“Based on the amount of testing that he’s have had over the last two months, these recent low level positives are the best evidence of what these experts are telling us,” said Novitsky.  He indicated that this would mean that there would be no re-administration of the banned substance and no performance enhancing benefit.

He then went on to lay out the case that for their assertion that Jones is not taking PEDs and the banned substances that have been found are not new and are not providing benefit.

19-02-28 Jon Jones Statement by on Scribd

Payout Perspective:

Maybe the best job this week the UFC has done was to mute the Jon Jones drug doping story.  With Jones complying with the requests to test with USADA and VADA on a weekly (if not daily) basis as fight day neared, its clear that the positive tests for a banned substance are hard to explain.  But, one thing seems to be clear.  Everyone is doing there best to clear Jones’ name.  Jones was not put on provisional suspension under the terms of the UFC Anti-Doping Policy and none of the protocol under the policy is being implemented.  Likely, due to the uncommon occurrence that is happening.  The question still remains how and why Jones is failing some drug tests.

Court dismisses all but one claim in Mark Hunt’s lawsuit against the UFC

February 14, 2019

In a 28-page order filed on Thursday, the United States District Court of Nevada dismissed all but one of UFC fighter Mark Hunt’s claims in his lawsuit alleging among its claims breach of contract, fraud and RICO Violations against the UFC.

The Order dismissed White and Lesnar in the lawsuit  leaving just the UFC as the lone defendant.  For background of the case, you can go here.

An analysis of the Motion to Dismiss hearing is here.

Order on Motion to Dismiss by on Scribd

The Court had allowed Hunt the right to amend his Complaint to include further details supporting his claims under RICO Act violations and fraud. However, the Court was not persuaded by Hunt’s amended and supplemental complaint.

In total, 9 out of the 10 claims in Hunt’s lawsuit were dismissed.

The Court determined that Hunt’s claims under the state and federal RICO statutes failed because either the allegations were “non-cognizable damages or failed to plead facts to show” a proximate cause to his financial losses.

The Court specifically took aim at Hunt’s loss to Lesnar at UFC 200.  The Court did not agree with Hunt that due to his loss to Lesnar, it proximately caused ancillary injuries to Hunt including cancelled promotional events post-UFC 200 costing him over $90,000 in appearance fees, a “dip” in his social media popularity and diminished advertising fees as well as a loss of licensing fees and sales for his personal clothing brand.   Here, the Court could not side with Hunt and believed that his RICO allegations failed for lack of proximate cause as they were “fatally speculative.”

In response to Hunt’s arguments that it could introduce expert testimony at a later stage of litigation to show the causation, the Court cited to precedent which stated that “it does not mean that the mere possibility of expert testimony down the line can rehabilitate allegations that insufficiently establish proximate causation.”  Moreover, the Court concludes that his claims cannot prove that Hunt would have beaten Lesnar if he was not doping.

As for the allegations related to White and the UFC, the Court infers that Hunt relates his claim to the removal of his fight from UFC Fight Night 121 (“referred to as UFC 121 in the order”) after he wrote an article claiming to suffer from slurred speech and other maladies he attributes to fighting.  The Court found fatal defects in the pleading as this was the portion of his claim in his Supplemental Complaint.  But he did not provide sufficient notice to the defendants.  Nevertheless, the Court dismissed the claim as it believed that the costs he attributed to training camp as not financial losses that do not constitute damage to “tangible property” under the RICO statute.

The lack of proximate cause also proved fatal for Hunt’s claims against White for alleged “aiding and abetting” and common law fraud.  Here again the Court refers to the lack of evidence linking White’s representations including the claim Lesnar was being tested by USADA with the alleged doping scheme.

The Court also dismissed Hunt’s breach of contract claim because he was paid for his fight against Lesnar at UFC 200.  In addition, the Court states that since Hunt’s damages relate to items that occurred after his loss, and not his contracted pay, the claim must be dismissed.

The Court determined that Hunt’s unjust enrichment claim must also fail because it stems from his contract with the UFC.  He received what he was owed in the contract and there is no compensation for Hunt’s perception that his services exceeded the scope of the contract.

Hunt’s battery and aiding and abetting claims fail because he consented to the fight with Lesnar.  Moreover, there was no evidence that Lesnar did anything outside “the range of the ordinary activity,” in an MMA bout.  The Court cites to a California case in which a pitcher intentionally threw a pitch at a batter’s head which injured the batter.  The Court sided with the pitcher stating that while throwing at a batter’s head is “forbidden by the rules of baseball,” it “is an inherent risk of baseball.”  By analogy, the Court states that even though Lesnar tested positive for a performance enhancing drug, there was no evidence submitted which revealed that he did something outside the scope of an MMA bout.  Thus, there is no battery claim against Lesnar.

Finally, the civil conspiracy claims must fail because the Court dismissed Hunt’s fraud and battery claims.  Since the underlying claims were dismissed, there cannot be a conspiracy claim.

The Court also authorized the remaining parties (i.e., UFC and Hunt) to attend a settlement conference.  In all likelihood, the parties will settle.

Payout Perspective:

In all likelihood, this case will be over after the settlement conference.  Cases for breaches of the covenant of good faith and fair dealing in contract have a low likelihood of victory for the plaintiff.  Based on the Court’s opinion which dismissed Hunt’s case for lack of proximate cause to his claims, it would only be a matter of time before Hunt’s last claim is dismissed.  This is an unfortunate result for Hunt.  While it’s clear that the allegations were tied together by a thread, it’s clear that he was tired of being put in the Octagon with opponents that failed drug tests. While Hunt may have had several good points in his lawsuit, the Court did not find anything of legal substance to keep the case afloat.  MMA Payout will keep you posted if there would be an appeal.

Jon Jones cleared to fight at UFC 235 in March

January 30, 2019

On Tuesday, the Nevada Athletic Commission granted Jon Jones a one-fight license to compete on March 2nd against Anthony Smith at UFC 235.

Jones, who appeared in person at the meeting, will be required to be drug tested a minimum of twice a month until he fights in March.  He will then need to continue testing throughout all of 2019 if he seeks to fight in the state again.

Unlike the California State Athletic Commission, who was willing to pay for the costs of the additional testing for Jones, Nevada is making Jones pay for the testing.

Jones was represented by Maine drug doping attorney Paul Greene.  In prior doping hearings, Jones had been represented by Howard Jacobs.  The hearing included testimony from USADA which led to the commission opining if more should be done with the UFC Anti-Doping Policy.

The commission made it known that this was not a “get out of jail free” card.  Yet, there was still no resolution of the pathology of the drug.  Green indicated that the substance remains in Jones’ system and while further testing may reveal turinabol but additional banned contents in Jones’ tests may result in the end of his MMA career.

Payout Perspective:

This is perhaps an anticlimactic end to the Jones’ controversy.  One has to wonder at some point why Turinabol remains in his system and why it remains in his system.  Jones has cut down his supplements from 14 to 4.  The remaining 4 are certified according to Green.  The one-fight license seems to just punt away the issue until another date.  The enhanced drug testing does not seem to determine the real issue since they are just getting the result, but not the origin of the turinabol seems to be the answer they need.  We will see how the commission deals with this in the future.

Walt Harris failed CSAC drug test at UFC 232

January 24, 2019

The California State Athletic Commission has temporarily suspended heavyweight Walt Harris after he failed a CSAC drug test on the night of his fight at UFC 232.

The substance Harris tested positive for was LGD-4033, a selective androgen receptor modules (SARM), which is in the same class as Ostarine.

Harris’ camp indicated that it may know the supplement which caused the failed test and has disclosed it to the commission for further investigation.

A urine sample revealed the banned substance which is considered an investigational drug used for muscle wasting and osteoporosis.

Notably, NBA basketball player Joakim Noah was banned twenty game for testing positive for LGD-4033.  Also, in 2015, it was reported that University of Florida quarterback Will Grier tested positive for LGD-4033 but the school refuted these claims.

Payout Perspective:

It’s not known whether Harris also failed a USADA test since the policy of reporting failed tests has changed under the UFC Anti-Doping Policy.  USADA still could sanction Harris based on a commission test failure according to the UFC Anti-Doping Policy.  Notably, the state commission will take the lead on this investigation since it was their test.  It will be interesting to see the amount of time it takes for the commission to determine the source of the banned substance and whether Harris will be punished.  MMA Payout will keep you posted.

Jones tests positive for metabolite of oral Turinabol per VADA test

January 23, 2019

Jon Jones has tested positive for the long-term M3 metabolite of oral turinabol according to drug tests administered by the Voluntary Anti-Doping Agency. It appears as though Jones has tested positive for this banned substance, that he will not face any punitive measures per the guidelines of the UFC Anti-Doping Policy.

As most know, Jones had tested positive for turinabol prior to his fight this past December with Alexander Gustafsson.  However, it was deemed to be as a remnant of turinabol 15 months prior.  Of course, USADA and Jones could not find the pathology of the banned substance in Jones’ system.

It is interesting to note that it was reported that drug test taken by Jones and administered by the California State Athletic Commission after the Gustafsson fight came up negative for turinabol.  Yet, the VADA test came up with the banned substance.

Payout Perspective:

While we have been cautioned not to jump to opinions on this, one has to speculate how Jones’ CSAC test on the night of the fight came up negative for oral turinabol metabolites but the VADA test shows a different result.  Are we to conclude that Jones is an anomaly?  While the UFC claims that another fighter is dealing with a similar situation, the scientific studies behind this show that this does not happen with humans.  The commission and regulators decry that Jones will not be given a free pass for every failed drug test, one has to wonder what to do with Jones except for pressing the media not to report on this.

MMA Payout will continue to monitor this situation.  It will be an interesting situation when Jones appears before the Nevada Athletic Commission as it did not issue Jones a license for his December fight which precipitated the late move.

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