Attorneys battle over experts in Povetkin-Wilder case

February 10, 2017

This week Deontay Wilder and Alexander Povetkin went to trial to determine whose fault it was that cancelled their fight in Russia this past May.

The sole issue to be decided at trial is whether Povetkin took Meldonium after January 1, 2016, the date that it was banned by WADA.

The trial is a battle of the experts with each side arguing about the admissibility of testimony and evidence.  The science of determining Meldonium in the system is key.  Povetkin admits to taking Meldonium in 2015 as prescribed by a physician.  However, he denies taking it after 2016.  WADA banned the substance on January 1, 2016.

Four VADA tests by Povetkin leading up to their anticipated fight in April 2017 occurred.  Povetkin’s VADA tests on April 7, 8 and 11, 2017 came up negative.  However, an April 27, 2017 test showed Meldonium.  World of Boxing claims that the Meldonium are traces from his 2015 use.

Trial began this past Monday.

Per a pretrial order dated January 31, 2017, the parties included specifics related to trial including experts.  The experts were to have submitted reports, the basis of their testimony, prior to the start of trial.  The Wilder legal team retained Anthony Butch, Ph.D. to testify about the testing of banned substances and the result of Povetkin’s tests as it relates to detection of Meldonium.  Essentially, Povetkin’s test results reveal he took Meldonium some time between April 11 and his last VADA test of April 27, 2016.  They also named Daniel Eichner, Ph.D. as a possible expert to testify regarding the positive test results.  He was added after World of Boxing added Dr. Douwe de Boer.

The World of Boxing team included several experts regarding the detection of Meldonium with the conclusion that Povetkin did not take the drug post-January 1, 2016.  This included Dr. Boris Simkhovich and Dr. de Boer.  Notably, Dr. de Boer was a late addition to the expert list and submitted a report which Wilder’s attorneys opposed.

On Thursday night, attorneys for Deontay Wilder requested to call Dr. Anthony Butch as a “very brief rebuttal witness” as it relates to World of Boxing’s expert, Dr. de Boer.  The claim to use Dr. Butch is that Dr. de Boer disclosed an “entirely new theory of the case” during his trial testimony.  Additionally, Wilder’s attorneys wanted to call Dr. Boris Simkhovich as a rebuttal witness.  However, Dr. Simkohovich was a designated expert of World of Boxing but was not called by the World of Boxing when they put on its case.

The new revelation addresses, according to Wilder’s attorneys, the reasons why Povetkin’s April 7, 8 and 11, 2016 urine samples had no detection of Meldonium but there was detection of Meldonium in his April 27, 2016 test: ion suppression.

Dr. de Boer was a late add as an expert by Wilder’s legal team.  The presiding magistrate, Judge Gabriel Gorenstein allowed Dr. de Boer to testify however he would have to submit to a deposition prior to trial as well as having an expert rebut the report.

The testimony from Dr. de Boer suggests due to ion suppression, Meldonium was not detected in the first three tests of April because the method of analyzing (mass spectrometer) did not pick up the Meldonium due to a competing molecule suppressing the Meldonium molecules.  But, the April 27th test contained residual Meldonium which it was able to pick up.

The claim is that Dr. de Boer’s theory is based on the late production of Dr. Butch’s raw data.  Despite submitting to a deposition, Dr. de Boer was precluded from answering questions about the report at his deposition per instruction from the Magistrate as the two sides butted heads over the issue.

They also wanted to call Dr. Simkhovich as a witness as Wilder’s side believed that his testimony was contrary to that of Dr. de Boer’s testimony which would seemingly show a flaw in World of Boxing’s case.

Attorneys for World of Boxing argue that Wilder’s problems are his own as the Court gave Wilder an option of deposing Dr. de Boer on Feb 1 or 2 or postpone the trial.  Wilder opted to go to trial and depose Dr. de Boer.  They also argue that Dr. de Boer’s report and data were provided to Wilder’s side prior to the deposition and they could have asked questions about it.  They also argue that Dr. Simkhovich cannot be used as a witness as he was not called by World of Boxing and would be inadmissible.

Payout Perspective:

The legal fights over inclusion of expert testimony occurs a lot and certainly each side wants to preserve their right to an appeal if needed.  The credibility of the experts will be key and the efforts to rebut testimony is a way for the legal teams to get the last say before a jury.

USADA declares “no fault” finding for fighter’s use of meldonium

February 6, 2017

Daniel Omielańczuk has agreed to a “no fault” finding of his positive test for Meldonium this past July.  The result is based on a January 2016 out-of-competition test.  But, due to the change in WADA policy, he was kept on his last fight in July 2016.

A portion of the USADA news release reads:

Omielanczuk, 34, tested positive for meldonium as the result of an out-of-competition urine sample he provided on January 21, 2016. Meldonium is a non-specified substance that was added to the WADA Prohibited List in 2016. It is in the category of Hormone and Metabolic Modulators and is prohibited at all times under the UFC Anti-Doping Policy, which has adopted the WADA Prohibited List.

During USADA’s investigation of the case, Omielanczuk presented evidence establishing that his use of meldonium was limited to a three-week span, from mid-August to early September 2015. Omielanczuk and his advisors confirmed that Omielanczuk did not resume his use of the substance after September 2015 because they became aware that the substance would be added to the WADA Prohibited List in 2016, and subsequently banned under the UFC Anti-Doping Program.

After a thorough review of the case, USADA concluded that the extremely low meldonium concentration in the athlete’s urine sample, combined with the available documentary evidence and the athlete’s explanation of use, was consistent with ingestion prior to the substance being officially prohibited on January 1, 2016. Accordingly, based on the results management guidance offered by WADA for cases involving meldonium, Omielanczuk will not face a period of ineligibility for his positive test.

Payout Perspective:

Perhaps coincidence, but the Wilder-Povetkin case we’ve been following suggests that Povetkin used Meldonium for a two-week period in August-September 2015.  As that case starts, it’s clear to see that the substance is hard to regulate.  Fortunately, for Omielańczuk, it looks like he won’t miss any time off from the UFC.

Povetkin attorneys submit rebuttal report explaining VADA tests

February 6, 2017

World of Boxing has submitted a rebuttal expert to address the additional “raw data” supplied by the UCLA Olympic Analytical Laboratory.

The report is from Biochemist Dr. Douwe de Boer. Dr. de Boer reviewed the information including the rebuttal expert report from Wilder’s expert. Importantly, it includes review of Povetkin’s VADA urine drug tests from April 8,9, 10 and 27th.

The sole issue at trial is whether Alexander Povetkin took Meldonium post-January 1, 2016.  Wilder claims he did.  Povetkin argues that the finding of Meldonium occurred in 2015 prior to the WADA ban.

The anticipated theory of the case is that the negative drug tests of April 8-10 and the positive drug test of April 27th for Meldonium show that Povetkin took the drug after his April 10 test.

However, Dr. de Boer concludes that “the so-called “negative” results for Meldonium in some of the urine samples collected does not mean that no Meldonium is present.” He asserts that a possible concentration was “sometimes below” the limit to detect it. He claims that some of the samples were “not negative,” but merely “not adverse.” He concludes that based on the low values “of a logical pharmacokinetic profile, its unlikely Povetkin took Meldonium post-April 11.

Expert Findings on Behalf of Povetkin by JASONCRUZ206 on Scribd

Payout Perspective:

So, it will be a battle of experts at trial. Dr. de Boer suggests that Povetkin had Meldonium in his system from his physician prescribed use prior to the WADA ban. But, the tests that revealed it to be negative actually had Meldonium in them. Thus, Povetkin’s expert argues that there would be no inconsistency in the tests as the Meldonium that showed up in the April 27 test was not new. We should see how this theory plays out this week.

Wilder claims non-produced email key to case

February 4, 2017

Meldonium is the key issue when attorneys for boxer Deontay Wilder and his promoter Lou DiBella square off against Alexander Povetkin and his promoter World of Boxing. In the latest filings, Wilder’s attorneys claim that Povetkin’s side withheld a damaging email it sent to VADA regarding Povetkin’s testing.

Now, Wilder’s attorneys are seeking to introduce the evidence to reveal that in production of documents an email was withheld.

The crux of the issue that will go to trial next week is whether Alexander Povetkin took Meldonium after the official WADA ban on the substance January 1, 2016. Wilder’s attorneys claim Povetkin took the banned substance after January 1 thus the reason the heavyweight pulled out of an anticipated fight in Russian in May 2016. Povetkin’s claim is that he took the drug prior to January 1, 2016 as prescribed by his physician and prior to the ban. They plan to introduce evidence and testimony that Meldonium can take time to leave the system.

One of the big issues will be a series of VADA drug tests on Povetkin. Tests in April 2016 reveal Povetkin had negative tests from April 7, 8 and 11 but a latter test on April 27 detected Meldonium.

Wilder’s attorney provided the court with a supplemental expert report which analyzed raw data from the tests. Povetkin’s attorneys are fighting to include a rebuttal expert report which suggests that the raw data analyzed shows that Povetkin may have had Meldonium in his system during the April 7, 8 and 11 tests.

The anticipated working theory is that Wilder will argue that the negative tests in early April plus the April 27 test show that Povetkin took the drug post April 11, 2016.

Povetkin rebuts this theory with the argument that the negative tests actually show the possibility that the fighter had Meldonium in his system at the time.

Perhaps damaging the Povetkin side is the withheld email which is purportedly from a representative of the World of Boxing, Dmitry Ivanov, to VADA’s Margaret Goodman which reads:

I would like to discuss with you about tests. In Spain it were t[h]ree times tests. It is too much. ***Recently I wrote about our best time table for.
Cause you know it will be very important fight in our career and we need have the best preparation and limit tests in order not to negative result.
We are really can’t have a tests every other days.

Hope you understand me in this issue. * * * Help to us make preparation in the good regime. * * *

p.s. I am sorry about my English. Hope you understand me right.

 

Wilder’s attorney claim that this email shows that World of Boxing is trying to conceal something by requesting that Povetkin’s drug tests are limited.

Povetkin’s attorneys have yet to respond.

Payout Perspective:

If there is such thing as a hot document, Wilder believes that this is one that fits its theory of the case “like a glove” as it wrote to the court on Thursday of last week.  It’s likely we’ll see the introduction of more dueling expert reports and rebuttals.  How much will the court allow before the trial starts will be up to the court.

 

Abreu retires from MMA after second flagged test

February 3, 2017

UFC middleweight Ricardo Abreu has retired from MMA after receiving another notice of a possible violation of the UFC Anti-Doping Policy.  Abreau, already serving a 2-year ban, admits that he’ll probably fail this test and is leaving the sport.  He cites depression as one of the reasons for his downfall.

A portion of the UFC statement on Abreu’s second flagged test reads:

The UFC organization was formally notified today that the U.S. Anti-Doping Agency (USADA) has informed Ricardo Abreu of a potential Anti-Doping Policy violation stemming from an out-of-competition sample collection taken on December 21, 2016.

Abreu is currently serving a two-year suspension under the UFC Anti-Doping Program, after the anabolic steroid metabolites 19-norandrosterone (19-NA) and 19-noretiocholanolone were detected in a sample collected from Abreu on June 3, 2016. Under his current suspension, Abreu is not eligible to return to competition until July 1, 2018.

According to MMA Fighting, Abreu suffered from depression and his decision to retire is to focus on his health and his family.

Payout Perspective:

Based on the backstory, it appears that Abreu was going through some financial uncertainty as well as career issues.  This might be the excuse for the reason he took PEDs.  Still, that should be no excuse as he put himself and others in danger by taking them.

Ledet notified of possible anti-doping violation

February 2, 2017

UFC Heavyweight Justin Ledet has been notified of a potential UFC Anti-Doping Policy violation. Ledet’s fight this Saturday at UFC Fight Night 103 had been taken off the event.

The UFC statement on Justin Ledet:

The UFC organization was formally notified today that the U.S. Anti-Doping Agency (USADA) has informed Justin Ledet of a potential Anti-Doping Policy violation stemming from an out-of-competition sample collection on January 12, 2017.

USADA, the independent administrator of the UFC Anti-Doping Policy, will handle the results management and appropriate adjudication of this case. It is important to note that, under the UFC Anti-Doping Policy, there is a full fair legal review process that is afforded to all athletes before any sanctions are imposed.

Consistent with all previous potential anti-doping violations, additional information or UFC statements will be provided at the appropriate time as the process moves forward.

Ledet was 2-0 in the UFC.

Povetkin asks court for rebuttal expert in Meldonium testing dispute

February 2, 2017

As trial in the Deontay Wilder-Alexander Povetkin is ready to go next week, the attorneys for each side are fighting over expert data.

The sole issue to be determined at trial is whether Povetkin ingested Meldonium after January 1, 2016.  Povetkin took Meldonium as recommended by his physician in August and September 2015 prior to its ban by the World Anti-Doping Agency (WADA).  Meldonium remains in the system for many months after its use.  WADA provided a notice on June 30, 2016 regarding Meldonium’s inclusion on the Prohibited List and excretion studies related to when the substance would leave the system.

The law firm of Arnold & Porter, the attorneys for Povetkin and his promoter World of Boxing are requesting the court to submit a rebuttal expert in light of a supplemental report provided by Wilder.  Arnold & Porter claim that Wilder’s attorneys, Judd & Burstein, provided additional biological data from the UCLA Olympic Analytical Laboratory concerning Povetkin’s test results.  The supplemental expert report included information from the data.  The discovery deadline was in December so the parties are at an impasse regarding the inclusion of the information in evidence.  Of course, Wilder’s attorneys would object to the inclusion of the new expert from Povetkin at this time since they did not have time to depose the expert on their opinion.

In all likelihood, the court will grant the new expert and a report, if any, but grant Wilder’s attorneys to depose him prior to his in court testimony.

Arnold Porter Letter 01.25.17 by JASONCRUZ206 on Scribd

From Povetkin attorney’s standpoint, they claim that Wilder’s side will present evidence that Povetkin took Meldonium after the April 11th VADA test (urine collection) but before the April 27 VADA test.   The evidence, Arnold & Porter suggests, are negative tests for Meldonium on April 7, 8 and 11 but an April 27 test that yielded a positive result.  But, Povetkin’s attorneys argue that the newly provided data and supplemental expert report show that “Meldonium had washed out by April 11.”  Essentially, the argument is that the “raw data” may show trace amounts of Meldonium in the previous tests thought to be negative.

Supplemental Expert Report – Wilder by JASONCRUZ206 on Scribd

WADA Notice re Meldonium by JASONCRUZ206 on Scribd

To break this argument down, Povetkin’s attorney want to explain the reasons for the “raw data” and supplemental expert report.  Thus, they want to have their own expert to render an opinion on the results and Wilder’s expert report.  One would assume that they would claim that the data suggests that one cannot conclude that Povetkin took Meldonium after January 1, 2016 despite the “negative tests.”

MMA Payout will continue to follow.

Prior to his return from ban, Sullivan flagged for potential USADA violation

January 27, 2017

UFC lightweight George Sullivan became the first fighter to potentially become a two-time offender of the UFC Anti-Doping Policy.  He was flagged for a potential banned substance from an out-of-competition test on January 14, 2017.

At the time, Sullivan was serving a one-year ban due to declaring he took a prohibited substance prior to his fight at UFC on Fox 20 in July, 2016.  He was given a provisional suspension. He professed his innocence in a Facebook post.  Prior to his test of January 14th, he had never tested positive for a banned substance.

In another Facebook post, he stated that he was taking a male fertility drug and that was the reason for the flagged test.  Sullivan claims that he is having his doctor provide the necessary information to USADA.

A portion of the UFC’s statement regarding Sullivan reads:

Sullivan is currently serving a one year suspension under the UFC Anti-Doping Program, for his use of a product containing the prohibited substance Insulin Growth Factor -1 (IGF-1).  Sullivan was due to end his current suspension on January 31, 2017, and compete on the UFC 208 card in Brooklyn, New York, against Randy Brown.  However, USADA has provisionally suspended Sullivan based on the new potential anti-doping violation, and the UFC has removed Sullivan from the UFC 208 card.  The UFC is currently seeking a replacement to face Randy Brown.

Payout Perspective:

Bad timing for Sullivan since he was due to get off of his one year ban and was scheduled to fight.  This would be the second time that he’s prepared for a fight and then been pulled.  Dependent on the prohibited substance, Sullivan’s transparency could mitigate some time from any suspension he may serve from this new finding.  Regardless of what substance it may be, I don’t foresee USADA allowing this test to pass without another suspension.  The question is whether this second suspension would carry a longer time away from the octagon.

Arbtitration yields 2 year suspension for UFC’s Felipe Olivieri

January 25, 2017

In its second arbitration since the institution of the UFC Anti-Doping Policy,UFC Fighter Felipe Olivieri was handed a two year suspension after he was provisionally suspended for an Anti-Doping Policy Violation on March 10, 2016.

The decision can be found here.

The suspension is due to a failed out of competition test on January 11, 2016 while he was training Brazil.  Notably, Olivieri’s brother died 5 days prior to the test occurring.  Also of note, the test results were not discovered until after his January 30, 2016 fight against Tony Martin in which he lost by 3rd Round TKO.  He took an in-competition test that night and those results were negative.

On March 4, 2016, the results of the A sample from the January 11th test came up positive for the presence of methyltestosterone metabolites, 5alpha-tetrahydromethyltestosterne and 5betatetrahydromethyltestosterne.  On March 29, 2016, the B sample came back positive for 5alpha-tetrahydromethyltestosterne and 5betatetrahydromethyltestosterne.

Among his defenses, Olivieri challenged the accreditation of the lab that analyzed the tests as on June 24, 2016, WADA issued a press release announcing that it had suspended the accreditation of the Rio Laboratory “due to a non-conformity with the International Standard for Laboratories. Olivieri’s legal counsel argued that the samples had been mishandled by the lab staff and the chain of custody had been compromised citing the WADA suspension.

Under objections from Olivieri’s attorney, a Utah lab confirmed the results from the Rio Lab.  Of course, Olivieri’s attorney claimed that the samples were already compromised and they could not render a conclusive result.

The arbitration panel stated that the fact that the suspension occurred in June 2016 and the results of the test happening on March 2016 does not negate the results.  The panel noted the Utah lab had confirmed the Rio Lab’s results.

In the end the arbitrators determined Olivieri had failed to provide an acceptable explanation of why there was a positive result for testosterone.  There were no mitigating circumstances and thus the “appropriate sanction” per the arbitrator was a 2 year suspension which will end on March 9, 2018.

Payout Perspective:

This is the second arbitration result that yielded a result favorable to USADA.  While Olivieri’s attorneys had procedural arguments to the reasons for his drug tests, they did not provide the ultimate answer for the arbitrator which was why Olivieri had the presence of testosterone androgens in his system.  Perhaps his attorney was seeking a possible reduction of a two year suspension for the 31 year old fighter.  Unfortunately for Olivieri, not only will he have to serve a suspension, he is out of pocket the legal fees necessary to challenge his Anti-Doping Policy Violation.

Lesnar recieves 1 year suspension from USADA

January 4, 2017

Brock Lesnar was issued a one year suspension by USADA for failing an out of competition and in-competition drug test for UFC 200.  Lesnar will be reinstated on July 15, 2017.

A portion of the USADA press release announcing the sanction reads:

Lesnar, 39, tested positive for clomiphene and its metabolite, 4-hydroxyclomiphene, following an out-of-competition urine test conducted on June 28, 2016, and an in-competition urine test conducted on July 9, 2016, at UFC 200 in Las Vegas, Nev. Clomiphene is a prohibited substance in the category of Hormone and Metabolic Modulators and is prohibited at all times under the UFC Anti-Doping Policy, which has adopted the WADA Prohibited List.

Last month, Lesnar entered into a settlement with the Nevada State Athletic Commission regarding the same drug test failure.  He received a one-year sentence and $250,000 fine.

The drug has the ability to double testosterone levels.  It is generally used as a fertility drug that causes the pituitary gland to release hormones.  Notably, Lyoto Machida’s suspension of 18 months was for 7-keto-DHEA which helps burn fat.

Payout Perspective:

The suspension was more or less expected after Lesnar settled with the NSAC.  Of course, the disparity in suspensions we mention with Lyoto Machida have to be frustrating.  The drug taken by Lesnar could aid him in fighting and I’m sure Mark Hunt its upset about this suspension.  On the other hand, Machida’s banned substance helps burn fat so that you can make weight.  The suspension reflect the issues with the UFC anti-doping policy overseen by USADA.

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