Deontay Wilder files appeal brief in Povetkin Meldonium case

October 22, 2018

Deontay Wilder filed its appeal brief in requesting that the court overturn the trial court’s ruling in favor of World of Boxing and Alexander Povetkin.  The appeal highlights an incongruent ruling by the court which appeared to defer to the World Boxing Council in its determination of Povetkin’s drug test failure.

The match between the two heavyweights was set by the World Boxing Council to take place in May 2016 in Moscow, Russia.  Wilder was training in England when he learned that Povetkin and tested positive for a banned substance.  Wilder decided to return to the United States instead of going to Russia believing that the fight was cancelled due to the failed drug test.  Povetkin and his promotion, World of Boxing claims that Wilder breached the contract when he failed to go to Russia for the match which prompted the WBC to cancel the fight.

In limbo is a purse of $7.15 million still in escrow.  The trial court granted World of Boxing’s request for the escrow money to be return.  Of course, Wilder believed that he should be granted his share of the money since Povetkin failed the drug test.  A lawsuit filed by the heavyweight champion ensued in which WOB and Povetkin filed counterclaims against Wilder.

From our post this past April:

In February 2017, a jury just took 32 minutes to determine that Povetkin took the banned substance Meldonium post-January 1, 2016, however that did not mean much in the outcome of this Summary Judgment motion.

One of the overarching issues in the lawsuit as to who is to blame for the failed fight in Russian in May 2016.  You might infer from the news of a failed drug test from Povetkin that it was the Russian.  However, Povetkin claimed that Wilder’s failure to appear in Russia forced the hand of the regulating body, the WBC, to call off the fight.

The WBC Bout Agreement takes precedent here as the Court examines the contract in applying basic contract principles.  But in its application, there seem to be things that don’t make sense.

“We begin by noting that the Bout Agreement contains no language mandating that each fighter refrain from ingesting banned substances.”

The inference one might yield from this sentence of the Court opinion is that tis ok to used banned substances.  Based on this, the Court held that Povetkin did not breach the Bout Agreement because it cannot conclude when/if he ingested the banned substance Meldonium. Obviously, this is opposite the jury finding.

The good news for Wilder is that there was no finding of a breach of the Bout Agreement when Wilder did not go to Russia for the fight with Povetkin.  The Court notes, “[t]here is simply no evidence that the WBC’s postponement decision was a “normal or foreseeable consequence” of Wilder’s actions, or that Wilder’s acts otherwise caused the WBC’s decision.”  Povetkin and World of Boxing sought $2.5 million in liquidated damages that was part of the Escrow Agreement.  “While the WOB Parties argue that it was Wilder’s failure to appear in Moscow, rather than Povetkin’s positive test result, that caused the WBC to postpone the Bout…no reasonable jury could indulge in the speculation that would be required to conclude that this was so,” stated the Court opinion.  It went on to state, “[B]ecause a reasonable jury could not find that any breach by the Wilder Parties proximately caused the WOB Parties’ damages, the Wilder Parties’ motion for summary judgment dismissing the WOB Parties’ claim for breach of the Bout Agreement is granted.”

As for the escrow funds, World of Boxing is entitled to its release held in escrow but no interest because no judgment was entered against Wilder.

The claims for defamation filed by Povetkin remain although they may be dismissed pending further movement in this case.

The Court opinion seems to fly in the face of the original jury finding that Povetkin took Meldonium post-January 2016.  The opinion seems to lean entirely on the WBC Agreement for its determination on its procedure in determining the status of Povetkin based upon his drug tests.  The Court quotes WBC Rules and Regulations when it notes, “the WBC may in its discretion consider all factors in making a determination regarding responsibility, relative fault, and penalties, if any.”

The WBC did not issue a ruling on Povetkin’s positive drug test until August 17, 2016.  It noted that it called the bout off and reserved any further ruling.  It then determined that it was not “possible to ascertain that Mr. Povetkin ingested Meldonium after January 1, 2016.  After two additional rulings by the WBC which opposed the August 17, 2016 ruling, it overturned the decision and stuck with its August ruling.  It based this on a study showing Meldonium having the ability to stay in one’s system for more than five months.  It also noted Povetkin had negative drug tests six other times.

The WBC seemed to be dragging its feet in this case as it put off the ruling on Povetkin despite the litigation moving ahead.  There’s also the issue of Povetkin’s positive test for ostarine which happened after the lawsuit began.  Yet, the WBC did not penalize him for this and even stressed negative drug tests notwithstanding the two positive tests for Meldonium and ostarine.

The appeal brief, which was filed in August 31, 2018, brought up the glaring disparity in issues regarding the WBC ruling and that of the jury trial.

Wilder notes that the WBC confirmed in its August 2016 ruling that the bout was called off due to Povetkin’s positive test.  In December 2016, Povetkin tested positive for another banned substance.  It issued a March 2017 ruling which doled out an indefinite suspension and a $250,000 fine.  But, in November 2017, it issued another ruling which amended the indefinite suspension to a fixed one-year fine and reaffirmed its ruling that it could not be found whether Povetkin ingested meldonium post-January 1, 2017.

Wilder points out that WOB’s attorney argued to the Court that “only the WBC, and not a jury, was competent to decide the issue, and that a jury verdict would merely be an advisory opinion.” Despite the trial judge’s disagreement, WOB attorney believed that the contractual agreement of the WBC would be the controlling factor in determining whether Povetkin took Meldonium.

However, Wilder believes that the District Court’s interpretation of the Bout Agreement was wrong.  Wilder argues that the “WBC does not have the discretion to resolve private disputes between parties to a contract.”  The Bout Agreement includes a clause which states that the parties “irrevocably accept and consent to the jurisdiction of” the District Court to “resolve any disputes arising out of” the Bout Agreement.” Wilder claims that whether or not Povetkin ingested Meldonium constituting a breach of the Bout Agreement is clearly a dispute arising out of the agreement, over which the District Court has exclusive jurisdiction.  Essentially, while the Bout Agreement gives discretion to the WBC, it does not supersede the authority of the courts to interpret the contract.  And Wilder argues, “[b]y cedeing the decision regarding whether Povetkin breached the Bout Agreement to the WBC,” it committed reversible error.  Additionally, the counterclaims filed by WOB and Povetkin reflect the authority of the courts over the WBC Bout Agreement.

Wilder also argued that even if the appellate court holds that the trial court was correct in holding that the WBC and not the trial court could determine whether the Bout Agreement was breached, it caused error in its application of the facts of the case.

Wilder cites the following press release from the WBC:

They also argue that the date of the bout is a material term in the contract.  Thus, whether or not the date of the bout was postponed is not relevant.  WOB asserts that Wilder breached the agreement due to his failure to fly to Russia for the intended fight.  Wilder cites several cases in which the exact date of the events is deemed essential to the terms of the contracts.

Following along the line of logic that the WBC had some authority in its contract, Wilder argues that the WBC delegated its duty to the trial court:

As a result, Wilder argues that the WBC applied a “strict liability” standard wherein if a jury found that Povetkin ingested Meldonium after January 1, 2017, he would be stripped of his mandatory challenger status which meant that his fight with Wilder would be off the table.

Wilder also indicates something amiss with what may be infers as a “quid pro quo” with Povetkin and the WBC. Pointing out the press release by the WBC, it seems as though if Povetkin paid his fine, he would be reinstated.

In a footnote of its brief, Wilder states that the trial court denied a request to reopen discovery on this limited issue but Wilder request this court again.

Finally, Wilder argues that he is entitled to the escrow property in the amount of $4,369,365 as a result of WOB’s breach of the Bout Agreement.

Payout Perspective:

This is a fascinating legal case premised on the basic tenets of a contract. The trial court’s decision to side with Povetkin and WOB in determining that the WBC would be the only entity capable of deciding whether Povetkin ingested Meldonium seems out of line with the job of the court to interpret the contract when a dispute comes before it. We have seen with the Austin Trout case that the Court has deferred to the drafter of the private contract despite the aggrieved party bringing a lawsuit. MMA Payout will continue to follow once WOB files its appellate brief.

UFC welterweight accepts 2 year sanction for cocaine use

October 16, 2018

USADA has announced that UFC UK fighter Bradley Scott has accepted a two-year sanction for violating the UFC Anti-Doping Program.  Scott tested positive for cocaine metabolites per an in-competition test.

Via USADA press release:

Scott, 29, tested positive for benzoylecgonine, a metabolite of cocaine, as the result of a urine sample he provided in-competition on May 27, 2018, at Fight Night 130 in Liverpool, United Kingdom. Cocaine is a non-Specified Substance in the class of Stimulants and prohibited in-competition under the UFC Anti-Doping Policy, which has adopted the World Anti-Doping Agency Prohibited List.

USADA conducted a thorough investigation into Scott’s case and determined Scott had not provided verifiable evidence regarding the circumstances that led to his positive test. Scott’s two-year period of ineligibility, the standard sanction for a first offense involving a non-Specified Substance, began on July 3, 2018, the date his provisional suspension was imposed.

The former TUF Smashes contestant will not be able to return to the UFC until July 2020.

Payout Perspective:

The finding should be a disappointment for the 29-year-old welterweight who is 3-5 in the UFC and on a 2-fight losing streak.  Arguably, cocaine should not be considered a PED but a recreational drug.  It would be interesting to know if Scott would be required to attend some sort of education regarding the drug to ensure he does not have an issue with the drug.

O’Malley out of this UFC 229 due to failed drug test

October 1, 2018

Despite the fact that the UFC Anti-Doping Policy announced new rules which precludes an announcement from USADA about a failed drug test, Sean O’Malley revealed that he is going through an issue due to a positive showing for a banned substance.

 

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💔 Just a speed bump on the way to greatness.

A post shared by Sugar Sean O’Malley (@sugaseanmma) on

O’Malley, an up-and-coming, charismatic bantamweight that came to prominence through Dana White’s Tuesday Night Contender’s Series announced via social media that he was out of his fight this Saturday at UFC 229 against Jose Alberto Quinonez. 

As the post states, O’Malley believes that the banned substance may be a result of a contaminated substance.  The testing for this will take 30 days although the exact punishment for this is unknown.

Payout Perspective:

This is a blow for O’Malley’s opponent who will not receive a payday this weekend and will have to hope he can get another fight soon.  The problem with that is that the fight would have been a high-profile one for Quinonez.  O’Malley suffers since UFC 229 will likely be the biggest drawing show in the history of the company (if you believe the advance projections from the company).  The up-front transparency from O’Malley is nice since he’s letting us all know about the process and why he’s being pulled from the fight this Saturday.  With the new UFC policy, we will see how other fighters handle their sudden absence from the Octagon.

Anti-Doping Policy will not announce drug test violations until resolution of case

September 30, 2018

ESPN reports that the UFC has made changes to its anti-doping policy wherein USADA will no longer announce fighters that have been put on provisional suspension until there is a resolution of the case.

According to the UFC, it will not announce a drug test failure until the case is resolved.  The rule will prevent putting fighters in false light as drug cheats wherein some of the failed tests are a result of a contaminated supplement.  Thus, some of the athletes did not intend to use a supplement for advantage but received a drug test failure due to something not labeled properly.

As a result of contaminated supplements, several athletes have filed lawsuits against supplement manufacturers and distributors due to serving UFC Anti-Doping Policy suspensions.  In addition, USADA had to address the issue of compound pharmacies when several Brazilian athletes failed drug tests.  These types of pharmacies make their own supplements instead of receiving them from the manufacturer.

One of the reasons for the change is the number of athletes that have failed tests due to unintentional use.

Payout Perspective:

The move is a step in the right direction for the UFC but it will be hard to explain the unexpected disappearance of a fighter from events and/or lack of activity.  This will spur people to believe that there is a violation pending.  But the move seeks to protect athletes from the media and others to jump to the conclusion that the athlete is a cheat.  The amendment was made with little notoriety and apparently without input from the athletes which is a concern for those interested in the rights of the fighters.

USADA forces suspended fighter to take DQ in Muay Thai event

September 29, 2018

As part of being suspended from the UFC as part of violating the UFC’s Ant-Doping Policy, you cannot participate in other combat sports-related activities.  Adam Hunter learned this lesson as he was disqualified from a Muay Thai Competition in June 2017.

Hunter has not even made an appearance in a UFC Octagon as he was suspended prior to his debut in August 2016.  According to the USASDA release, he had participated in the 2017 Ontario Provincial Muay Thai Championships whil serving his two year suspension:

Hunter, 34, initially accepted a two-year period of ineligibility and loss of results in October of 2016 by USADA and the British Columbia Athletic Commission after a sample he provided during an out-of-competition test on August 11, 2016, tested positive for a tamoxifen metabolite, boldenone metabolites, methandienone metabolites, a drostanolone metabolite, and clenbuterol.

Despite signing an Acceptance of Sanction form, Hunter went on to compete in the 2017 Ontario Provincial Muay Thai Championships on June 10, 2017, thereby violating the terms of his sanction. Upon investigating the circumstances of the violation, USADA concluded that Hunter was operating under the mistaken belief that his participation in the event would not be a violation of the terms of his sanction.

After fully considering the circumstances that resulted in his participation in the Ontario Provincial Muay Thai Championships, USADA concluded that Hunter’s level of fault in this matter was low and that an additional period of ineligibility was not warranted. Per the UFC Anti-Doping Policy, however, Hunter’s results from the event have been disqualified.

Payout Perspective:

This is the first case where we see USADA reaching outside the UFC.  One would think that you may compete in other sports outside of MMA, but it appears that serving the suspension reaches throughout other sports where drug testing may become involved.  This is tough for Hunter since he’s never fought in the UFC but has been disciplined twice by the organization.

CSAC handed Jon Jones 3 months of community service

September 21, 2018

The UFC 229 press conference took all the headlines on Thursday but what went under the radar was the California State Athletic Commission giving Jon Jones 3 months community service as a result of his drug test failure last July.  USADA doled out a 15-month suspension to Jones on Wednesday after his second arbitration under the UFC Anti-Doping Policy.

According to MMA Junkie, the California State Athletic Commission called the punishment “agreeable, in concept.” CSAC Executive Director Andy Foster expected an 18-month suspension from USADA and the 3 months of community service was issued to “close the gap.”

An arbitrator in Jones’ USADA case determined that the former UFC light heavyweight did not try to cheat despite having traces of a banned substance in his system.

In February, Jones was fined $205,000 and had his fight license revoked.

No word on when and what type of community service Jones will have to perform.  But its assumed that he could re-apply for a license to fight in California once complete.

Payout Perspective:

The punishment by California should not be too surprising.  Jones has been out of action since July 2017 and the impetus was put on USADA to hand out its punishment.  The surprise was the arbitrator’s 30 month reduction of the guideline suspension per the UFC anti-doping policy.  Couple that with Jones’ remorse…once again, and California probably was not going to tack on anything substantial which would impede Jones’ career any further.

USADA arbitrator reduces Jon Jones suspension, will be back in UFC by October

September 19, 2018

USADA has handed Jon Jones a 15-month suspension for his failed drug test at UFC 214 in July 2017.  The arbitration decision means that Jones will be eligible to fight in the UFC this October.

Jones was represented at his hearing by experienced doping attorney Paul Greene.  He was also represented by Peter S. Christensen of Las Vegas.  Notably, Howard Jacobs was Jones’ attorney at his first arbitration hearing and at the California State Athletic Commission hearing regarding his second failed USADA test earlier this year.  The arbitrator was Richard McLaren.

Final Redacted Award Jones … by on Scribd

Unlike other arbitration hearings, the parties entered into a Joint Stipulated Factual Resolution and Arbitration Agreement.

Despite the fact that Jones was facing the potential of a four-year suspension for his second infraction under the UFC Anti-Doping Policy, the arbitrator reduced his suspension by 30 months based on Jones’ cooperation with USADA in attempting to determine the cause for his failed drug test.  McLaren could have reduced it down to 12 months but determined that Jones could have done other things to mitigate his risk.

The arbitrator determined that based on the UFC Anti-Doping Violations rules that it need not determine the source of the finding to determine fault.  Therefore, regardless of how the illicit substance ended up in Jones’ system, it is not necessary to how it was ingested for them to determine fault.  But here, the arbitrator determined that Jones’ liability to be minimal.  Although, the arbitrator does suggest that Jones could have done more to prevent the violation, he does not think the infraction aided him in his performance.  “There was absolutely no intention to use Prohibited Substances on the part of the Athlete [Jones],” wrote the arbitrator.

The arbitrator noted that Jones seemed contrite for his wrongdoing.

There is the possibility that the CSAC still may rule on a suspension for Jones.  It has revoked his license and fined him $205,000.  But, it would seem that any further suspension of time from eligibility

Payout Perspective:

A week ago USADA felt compelled to address rumors that it was being paid off to reinstate Jon Jones.  Perhaps now we know the reasons behind the statement.  The ruling seems to be made in a vacuum when looking at the UFC Anti-Doping Policy and Jones’ prior arbitration hearing.  The decision seemed to neglect his prior indiscretions, his mistakes admitted in the first arbitration and his California State Athletic Commission hearing where he readily admitted that his management team falsified documents on his behalf so that he would not have to do the educational component of the UFC Anti-Doping Policy.  All that being said, Jones had a viable case but the facts seemed to be against him knowing he had a prohibited substance in his system and this was his second drug test failure which would connote a four-year suspension.

Overall, I don’t think UFC fans mind that Jon Jones is coming back sooner than later to the octagon.  Its just the matter that the policy seemed to bend over backward and then look away from the way it adhered to its policy with other fighters.  Its true that Jones will be suspended 15 months before coming back to the UFC, but this was his second strike and with a history of reckless disregard for the rules this shows flexibility for athletes that can produce the company revenue.

Fabricio Werdum given 2-year suspension by USADA for use of trenbolone

September 11, 2018

USADA announced that UFC Heavyweight Fabricio Werdum was given a 2-year suspension due to a positive test of a prohibited substance.  The former UFC Heavyweight Champion tested positive for trenbolone and its metabolite epitrenbolone following an out-of-competition urine test on April 25, 2018.

As his first offense, Werdum was given a 2-year period of ineligibility.  It is the standard sanction for a non-Specified Substance.  Trenbolone is an androgen and anabolic steroid of the nandrolone group.  The use of the prohibited substance allows for rapidly building muscle.

The 41-year-old’s suspension began on May 22, 2018 and will be able to return to the UFC on May 22, 2020.

Payout Perspective:

The penalty almost forces Werdum into retirement from action as he will be 43 years old when he is eligible to return.  Obviously, with 44-year-old Mark Hunt fighting this week, it’s not out of the question for Werdum to return after suspension but his age will definitely be a factor.  It’s surprising that Werdum did not appeal the decision or seek some sort of mitigating factor which one may conclude that he was guilty of the infraction.

With USADA suspension almost over, UFC releases Tom Lawlor

August 13, 2018

The UFC has released Tom Lawlor from his UFC contract.  Lawlor, who is serving a 2-year UFC Anti-Doping Policy drug suspension is currently working as a pro wrestler.

Lawlor accepted a 2-year suspension after he failed a test for Ostarine on October 10, 2016.  Despite an exhaustive look into what may have caused the test, Lawlor decided not to make a formal appeal.

Lawlor will be off of suspension on October 10, 2018.  However, since he’s been away from MMA, he’s embarked on a pro wrestling career to keep him busy.

According to the report on F4Wonline.com, where Lawlor also is a co-host of a weekly show, he had asked for his release when being suspended but the company refused until today.

In addition to news of Lawlor being released, the UFC released Gleison Tibau.  He was the second UFC athlete to be put on provisional suspension as a result of the UFC’s anti-doping policy.

Payout Perspective:

Perhaps if there is any good news for Lawlor is that he’s been able to focus on his wrestling career and travel the country doing shows and making an income.  It might be the best situation if he wanted to be a UFC champion, but it elevated his name in the world of pro wrestling.  We will see if Lawlor will seek out Bellator or another promotion to continue his MMA career.

Ferreira files lawsuit against supplement makers and supplier for allegedly causing USADA suspension

July 29, 2018

Carlos Diego Ferreira Neves has filed a lawsuit against supplement vendors, manufacturers and suppliers which resulted in the lightweight being suspended for 17 months.

The lawsuit filed last month In the District Court of Hidalgo County, Texas states that Defendants spiked “360 Lean, a “dietary nutritional supplement” with ostarine while also misleadingly adding a prohibited substance known as 7-Keto® DHEA, causing Plaintiff to suffer severe injuries after being banned from the UFC.”

Ferreira notes that the label of 360Lean did not accurately list 7-Keto® DHEA and later changed its description in subsequent batches. The lawsuit states, “[R]epresenting that the supplement contained, 7-Keto®, without indicating the product contained a hormone was wholly deceptive, misleading, and fraudulent.”

7-Keto® DHEA and Ostarine are banned substances and 360Lean was placed on the USADA High Risk List in Februar 2017 “after testing of Lot Number 9004637 revealed the presence of 7-Keto® DHEA and ostarine.

In September 2016, a sealed unopened bottle of 360Lean was sent to a WADA accredited lab where Plaintiff discovered that he had unknowingly and through no fault of his own ingested ostarine from the product 360Lean.  Ferreira was charged with a UFC Anti-Doping Violation in November 2016.

Ferreira is suing Zinpro and Impact Labs as the developers, manufacturers, marketers and distributors of 360Lean.  Vitamin Shack & Shakes sold the 360Lean product.

The lawsuit states a variety of causes of action including negligence, breach of express warranty, breach of implied warrantied and fraud against Zinpro Corporation and Impact Labs.  Ferreira also claims that the Defendants are guilty under the theory of strict liability for products liability.

Ferreira First Amended Petition by JASONCRUZ206 on Scribd

The store where Ferreira purchased 360Lean has filed a cross-claim against the Zinpro and Impact Labs for allegedly misleading consumers with its label.

Payout Perspective:

This is the fourth lawsuit since the UFC Anti-Doping policy was implemented where a fighter has sued a supplement maker, manufacture and distributor.  Josh Barnett, Yoel Romero and Lyman Good also filed lawsuits against supplement makers and the places where they purchased the alleged tainted goods which caused them to receive suspensions as a result of the findings.

In products liability cases (lawsuits where the claim is that a product is defective), there is a higher standard on the manufacturer or seller to ensure that the user is not harmed.  In this instance, one could argue Ferreira was not harmed in the sense of physical injury.  He was harmed since he had to ensure he did not ingest a banned substance per the UFC Anti-Doping Policy.  The question will be whether the Defendants knowingly misled consumers with the amendment of its description on the label.  This will make a very interesting case as it continues.  MMA Payout will continue to follow.

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