Augusto Mendes is released by UFC, signs with ACB despite pending anti-doping violation

June 9, 2018

The UFC has granted Augusto Mendes his release according to MMA Fighting.  Mendes was flagged back in March for a potential UFC anti-doping violation.  Mendes has signed with Absolute Championship Berkut of Russia.

Mendes claimed that he would appeal the drug test administered by USADA.  However, with one fight left on his UFC deal, he is no longer with promotion.

It is not clear whether he will compete before his USADA case is resolved.

Payout Perspective:

This signing has gone under the radar and may be something to track considering if ACB decides to honor the potential suspension.  One might infer that they will not considering the signing during this time.  Moreover, the UFC’s willingness to let him out of his contract may mean that it will no longer pursue disciplinary action against him but place the burden on other regulatory bodies to decide.  This is a similar situation to the Cro Cop/Bellator issue where a fighter finds alternative ways around the USADA suspension.  We will see what happens and if going to an organization that does not honor an anti-doping violation in another promotion, this may be a strategy by some that will look to circumvent the process.

Deontay Wilder and Alexander Povetkin head to appeal

May 25, 2018

The Deontay Wilder-Alexander Povetkin legal drama will not end.  The parties have given notice that they are appeal the federal district court’s decision.

Letter From Wilder 05.25.18 Appeal by JASONCRUZ206 on Scribd

The Southern District Court of New York has had a trial and summary judgment motions in this contentious lawsuit over whether Povetkin’s failed drug test for Meldonium was a breach of the fight contract between the parties or whether Wilder not heading to Russia, where the fight took place, was a breach of the contract.

Thus far, a jury found that Povetkin ingested Meldonium post-January 1, 2016.  The Court affirmed the jury decision after a Motion for Reconsideration and/or New Trial  by Povetkin (and his promoters at World of Boxing)was denied.  Yet, in litigating the other causes of action, the court determined on Summary Judgment that Povetkin did not breach the Bout Agreement although a jury trial determined that Povetkin ingested Meldonium and concluded that a VADA test on April 27, 2016 showed Meldonium in his system.  The court deferred to the WBC’s discretion to rule on culpability for its anti-doping program.  As such, the court concluded that since the WBC believed that Povetkin did not violate the Bout Agreement.

From our previous post on this issue:

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.

The District Court ordered the release of the money held in escrow of over $7.1 million dollars.

A cause of action by Povetkin for defamation against Wilder was not litigated, but its likely that this will be determined after the appeal.

Payout Perspective:

It only makes sense that this case was going to be appealed.  Both sides are appealing ruling from the court.  Wilder is appealing the Summary Judgment ruling which essentially overturned a trial court decision that Povetkin took Meldonium.  Povetkin might be seeking to go after Wilder for breach of the Bout Agreement and obtain a $2.5 million liquidated damages award that is a part of the escrow agreement.  The legal drama shall continue and MMA Payout will follow.

Werdum flagged by USADA for anti-doping violation

May 22, 2018

The UFC announced on Tuesday that Fabricio Werdum has been notified of a potential anti-doping violation by USADA.  The flagged test is from an out-of-competition test taken on April 25th.

Werdum’s last fight was a knockout loss to Alexander Volkov at UFC Fight Night 127.  Werdum took to social media to proclaim his innocence stating that he’s always been careful with everything he takes.

Werdum’s flagged test comes just a day after he was announced to fight in the UFC’s debut in Moscow this September at UFC Fight Night 136.  With the adjudication process for USADA, it’s unlikely he will be cleared in time.

Payout Perspective:

Werdum’s claim that there was some error in the testing and that he’s always been careful brings into question how much fighter’s detail what types of supplements they are taking and where they are from.  The two-year penalty for the 40-year-old Werdum might spell the end of his career.

Wilder and Povetkin/World of Boxing legal drama not over yet

May 2, 2018

The Deontay Wilder-Alexander Povetkin legal drama continues despite a Motion for Summary Judgment motion that seemingly answered all the questions left in the lawsuit.  All, except for when World of Boxing (“WOB”), Povetkin’s promoters might recoup the money that has remained in escrow since the start of this dispute.

We’ve covered the exhaustive background of this case since the lawsuit was filed.  For background from beginning, check this post and for the most recent filing you can look here.

On April 25th, the court entered an Order which relied on a U.S. Supreme Court case, Hall v. Hall, which determined whether consolidated cases under the Federal Rules of Civil Procedure are “immediately appealable upon an order disposing of that case.”  In this case, the World of Boxing has a claim for defamation which was stayed pending resolution of the rest of the claims.  The Court is concerned that the parties have not litigated this portion in the lawsuit assuming no final judgment would be filed.

Order dated 4.25.18 by JASONCRUZ206 on Scribd

However, the World of Boxing presented a Notice of Presentment of Proposed Final Judgment last week for the Court to sign which would have allowed for WOB to present to the escrow agent and disburse funds back to WOB.

A telephone conference originally set for April 26th has been moved back to May 10th.  The parties are expected to address the situation.

Ahead of their teleconference, the parties were offered to address the issue in letter form to the court.

Wilder sent a letter dated April 24, 2018 to the court:

Letter From Deontay Wilder 4.24.18 by JASONCRUZ206 on Scribd

The biggest argument in the letter was that the Court’s April 19, 2018 Opinion and Order granting in part and denying in part the parties’ motions for summary judgment, had the effect of dismissing “all claims” except the defamation claim.  WOB’s attorneys noted, “Judge Gorenstein concluded that the Bout Agreement granted complete discretion to the WBC to decide any doping question in this case, which had the effect of overruling the jury’s verdict that Povetkin ingested meldonium when it was banned.  It also pointed out that the Opinion and Order did not direct entry of a final judgment.

In its letter, it argues that consolidated cases retain their separate identity “to the extent that final decision in one is immediately appealable by the losing party.”  Here, WOB cites the U.S. Supreme Court in Hall v. Hall.

On the same day, WOB responded:

Letter From WOB 4.24.18 by JASONCRUZ206 on Scribd

Wilder argued that the Hall case differed from the instant case.  Wilder’s attorneys argued, “[I]t would make no sense and ill-serve judicial economy to grant Defendants’ request for entry of two separate judgment on the same claims in two different cases.  To the contrary, such a result would sow serious confusion before this Court and on the appellate level, and there is no precedent to support that outcome.”

Payout Perspective:

 From WOB’s perspective, the argument by Wilder is seemingly a way to prolong the litigation to prevent WOB from receiving the millions of dollars kept in escrow.  The fundamental legal argument is whether the defamation claim is separate from the other claims made by the parties.  The U.S. Supreme Court case has varied interpretations by the parties.  Wilder believes that there should be one entry of judgment while WOB believes that there could be two judgments made for the one case.  Once again, it appears that the Court was not clear in its ruling as its Order deciding the Motions for Summary Judgment could have outlined the issue or gave guidance as to whether an entry of judgment should occur or pending the litigation of the defamation claim.  The question one might ask, is whether dismissing the claim would allow for this case to end barring appeal.  We will see May 10th.

What was the court thinking in Povetkin-Wilder?

April 26, 2018

The ruling in the Alexander Povetkin-Deontay Wilder case last week was a surprise for many that have been following the case.

Opinion and Order by JASONCRUZ206 on Scribd


The lawsuit was based upon a drug test which Povetkin failed in lead-up to a fight with Wilder in Russia.  Wilder did not travel to Russia after learning of the failed drug test.  Wilder first sued Povetkin and his promoter World of Boxing as a result of Povetkin’s failed test.  Povetkin filed counterclaims against Wilder for failing to go to Russia 7 days prior to the bout date to which Povetkin claims was a breach of the Bout Agreement.  He also filed defamation claims against Wilder for bad-mouthing the heavyweight after drug test results revealed he took Meldonium.

The Court opinion deciding the Summary Judgment motions relied on the Bout Agreement which was subject to the World Boxing Council’s Rules and Regulations.  It cited language in the Agreement which stated that “any dispute or controversy” would be bound by the Rules and Regulations of the WBC.

Another layer of this dispute revolves around purse money placed in escrow for the fight.  Wilder had written the escrow company to hold the money until a court decided the outcome.  Povetkin and World of Boxing objected to this and sued claiming a violation of the duty of good faith and fair dealing.  In addition, they claimed that Wilder had violated the terms of the Bout Agreement and should be subject to a liquidated damages clause of $2.5 million.  Wilder was due $4.5 million to fight Povetkin while Povetkin was due $1.9 million.  In addition, there was a $715,000 bonus for the winner.

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.

This ruling seems ripe for an appeal.  The jury verdict seems to fly in the face of the Court’s ruling last week which seemed to defer to the WBC’s handling of the Povetkin matter.  Wilder’s side may just put this case behind them unless Povetkin is allowed to pursue its defamation claim.

USADA open to explaining UFC anti-doping cases

April 26, 2018

USADA has indicated that it may be open to “reasoned decisions” when it comes to resolution of cases with a UFC fighter.

USADA CEO Travis Tygart told MMA Junkie that the agency would be open to providing the underlying facts of a case and provide context for how and why an agency makes the decision.  This would address questions about the reasons behind a resolution of a matter as well as acceptance of a suspension.  Currently, the standard procedure under the UFC Anti-Doping Policy is for USADA to provide a short press release confirming basic facts, a summary of the evidence (e.g., a failed urine test) and the sanction imposed.

The potential to provide more information would provide transparency behind the program and alleviate concern from fighters about USADA.  Of course, the new process would mean more time and resources spent to author these reports.  Also, the UFC has not chimed in on this either.

Payout Perspective:

If “reasoned decisions” would make fighters more willing to work with USADA and feel less threatened about the process, it should happen.  Of course, the time and resources spent to do this would mean additional costs borne upon Zuffa.  This would likely cut into the operational expenses of the company and one might infer you’d see this recouped in other ways.  But, the USADA policy is not going away and anyway to alleviate any concerns with fighters should be looked into.

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.

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.

Exonerated after USADA arbitration, Barnett sues supplement maker

April 10, 2018

Josh Barnett has sued the supplement maker that he took which led to a finding of a banned substance by USADA. Barnett prevailed at arbitration with USADA which did not suspend the UFC Heavyweight any amount of time.

Barnett has sued BIOKOR, LLC, which does business as GENKOR, N101, Inc. and owners Mark Wilcox and Alex Lasbroas individually in the Superior Court of Los Angeles.

Despite proving that he did not knowingly take a banned substance, it took over a year for the process of investigation to take place.  The arbitration took place in early March.  Barnett was suspended for a December 9, 2016 infraction which was determined to be ostarine.

Fortunately for Barnett, he kept a detailed accounting of supplements which led to the finding that a supplement by the name of Tributestin purchased at a store in Los Angeles contained ostarine although it was not labeled on the product.

Barnett has sued for Negligence, Strict Products Liability, Breach of Implied Warranty and Breach of Express Warranty.

Payout Perspective:

Lyman Good, Yoel Romero and now Josh Barnett have sued supplement makers after they were flagged by USADA for findings of banned substances.  The claim is that the supplements were tainted and did not contained the banned substance on their label.  These lawsuits will be interesting to keep track of as this may be defense for a fighter flagged by USADA.

Nick Diaz accepts one-year USADA ban…which ends next week

April 9, 2018

USADA announced that Nick Diaz has accepted a one-year sanction for Whereabouts Failures reporting pursuant to the UFC Anti-Doping Policy.  The suspension is retroactive to April 19th of last year and thus he will be available to fight by next week.

Via USADA release:

USADA announced today that Nick Diaz, of Stockton, Calif., has accepted a one-year sanction for a violation of the UFC® Anti-Doping Policy resulting from three unsuccessful test attempts during a 12-month period.

Like all UFC athletes, Diaz, 34, is a member of the UFC Registered Testing Pool and is therefore subject to certain Whereabouts responsibilities, which allow him to be located for out-of-competition testing. Diaz failed to be available for three tests at the locations provided in his Whereabouts Filings. The first two failures occurred in the second and third quarters of 2016, while the third occurred in the first quarter of 2017. Under the UFC Anti-Doping Policy, the accumulation of three Whereabouts Failures within a 12-month period constitutes an anti-doping policy violation.

Payout Perspective:

The announcement could be due to the timing of the investigation and speaking with Diaz’s representatives on the matter.  If not, this sort of announcement is a mockery of the UFC Anti-Doping Policy as the announcement almost coincides with his ability to get back to active status with the UFC.  While its clear that Diaz could not take a fight since he did not report his Whereabouts on three separate occasions in as 12-month span, the length of time it took for the decision seems lengthy.  If it was not due to a delay in fact-finding, one has to wonder why the investigation process and determination of penalty is taking so long.

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