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:

 

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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.

6 month USADA sanction for UFC flyweight

January 15, 2019

UFC flyweight Jennifer Maia accepted a six-month sanction for violation of the UFC Anti-Doping Policy after she tested positive for a contaminated dietary supplement.

Per the UFC Anti-Doping Policy:

Maia, 30, tested positive for furosemide, hydrochlorothiazide, chlorothiazide, and the thiazide metabolite 4-amino-6-chloro-1,3-benzenedisulfonamide (ACB), following an out-of-competition test conducted on August 16, 2018. These substances are Specified Substances in the class of Diuretics and Masking Agents and are prohibited at all times under the UFC Anti-Doping Policy, which has adopted the World Anti-Doping Agency (WADA) Prohibited List.

During an investigation into the circumstances of her case, opened and sealed containers of a dietary supplement she was using at the time of the August 16, 2018 sample collection, and that she declared on her doping control form, were sent to the WADA-accredited laboratory in Brazil for analysis. Although no prohibited substances were listed on the supplement label, the analysis revealed that both contained the prohibited substances for which Maia tested positive. Accordingly, this product has been added to the High Risk List of supplements maintained on USADA’s online dietary supplement safety education and awareness resource – Supplement 411 (www.Supplement411.org). Further, USADA reminds athletes that dietary supplement products marketed for weight loss carry significant risk to contain prohibited prescription medications, such as diuretics.

Under the UFC Anti-Doping Policy, as well as the World Anti-Doping Code, the determination that an athlete’s positive test was caused by a contaminated product may result in a reduced sanction. The sanction for a doping offense resulting from the use of a contaminated product ranges from a reprimand and no period of ineligibility to a two-year period of ineligibility.

Maia’s period of ineligibility began on August 31, 2018.  Maia has had just one fight in the UFC, a loss to Liz Carmouche in July 2018 in Boise.  Prior t that, she was the Invicta FC Flyweight Champion.

Payout Perspective:

This is another situation where a contaminated supplement yields a sanction despite the fact the fighter had been forthcoming with the information for USADA.  It was clear based on the investigation that the supplement she took was contaminated.  Moreover, the supplement was not on the “high risk” list of supplements.  And while her suspension was reduced from two years to six months, it would seem that she would not have to serve any penalty based on the facts.

 

Silva lobbies for return of testosterone therapy

January 12, 2019

Anderson Silva is in favor of USADA drug testing in the UFC despite being flagged for testing positive for a banned substance.  In a recent interview, Silva is advocating for the return of testosterone replacement therapy.

Silva also tested positive for a banned substance at UFC 183 in February 2015.

In an interview with a Brazilian outlet, Silva advocated for the use of “hormonal replacement” therapy.  He stated, “I think, if USADA regulated that, we’d have the sport at a high level, with athletes who have stopped fighting.”

Silva stated that USADA’s presence in testing was a good thing but he believes that the organization needs to review its rules to tailor the testing to the needs of the fighters.

Silva meets Israel Adesanya at UFC 234.

Payout Perspective:

It appears that Silva is advocating for the return of testosterone replacement therapy.  This practice was allowed by commissions if an athlete was able to prove that they suffered from low testosterone.  Athletes would be able to receive hormonal replacement.  But, with the older you get, naturally the more testosterone you would lose.  So athletes would be able to find an end around on this issue and be able to take advantage.  Silva does talk about older fighters able to prolong their careers based on this.  But you have to weigh the practicality of the need versus those that are gaming the system.  While Silva advocating for ways to keep himself going, it would be a detriment to others.

Paying $250K NAC fine still on list of things to do before Brock Lesnar returns to UFC

January 8, 2019

Will Brock Lesnar be returning to the UFC this year?  If so, he’ll need to pay his $250,000 fine assessed by the Nevada Athletic Commission for two failed drug tests from his participation at UFC 200 in July 2016.

Lesnar re-entered the USADA testing pool in July 2018 and after a period of ineligibility per USADA rules, he would be able to return to the Octagon by January 8th to compete.  Of course, Lesnar is not scheduled to fight on a card in the first half of the UFC year, but its anticipated that he’ll return in the heavyweight division at some point.

But the Nevada Athletic Commission is holding him on an indefinite suspension for the failed tests and unpaid fine.  In order for Lesnar to apply for a license to fight, he’ll need to pay the fine as well as submit clean drug tests at certain benchmarks prior to his next fight.

Lesnar last fought Mark Hunt at UFC 200 in July 2016.  An in-competition test revealed the banned substance clomiphene in Lesnar’s USADA tests.  The WWE superstar retired from the UFC in December 2016 but then returned to the USADA pool in July 2018.

Payout Perspective:

Probably nothing to worry about here since Lesnar will need to adhere to drug tests, etc. prior to returning to the UFC.  One may think that a July 2019 showdown against Daniel Cormier take place during International Fight Week.  Another alternative could see him face Jon Jones if the new light heavyweight champion decides to move up a weight class.  Regardless, when Lesnar returns to action, he’ll need to pay his fine to obtain his NAC license. And, of course, pass his USADA drug tests.

Drug maker in Lyman Good lawsuit moves to dismiss case for alleged destruction of evidence

January 5, 2019

The supplement company that UFC fighter Lyman Good has sued for allegedly causing him to fail a USADA drug test is now moving for his case to be dismissed because the evidence is no longer available.

Defendatns Gaspari Nutrition, Inc. and Hi-Tech Pharmaceuticals filed the Motion to Dismiss on December 14th claiming that Good or his lawyer intentionally destroyed the supplement that was the cause of his flagged drug test.  Good faced a two-year ban for violation of the UFC Anti-Doping Policy but it was reduced to six months as he was able to pinpoint the source of the failed test.

Good tested positive for a banned substance in an October 14, 2016 out-of-competition test.

According to legal filings, Good was able to deduce that he had added two supplements since his last USADA test which came up negative for any banned substances.  One of these was Anavite sold by Gaspari Nutrition and made for Gaspari Nutrition by Hi-Tech.

Attorneys for Gaspari Nutrition and Hi-Tech Pharmaceuticals claim that Good did not name Anavite as one of the thirteen substances that he was ingesting at the time of his failed USADA test.   They also cite that the bottle of Anavite that he used which failed the drug test is gone.  He first claimed he gave it to his attorney but his attorney later denied this.

Dismissing the case is a sanction premised upon the spoliation of evidence.  It is not a necessity that the Court dismiss the case, but it’s the defendant’s contention that either Good knowingly destroyed the bottle of Anavite, gave it to his attorney who claims he no longer has it and/or misplaced the evidence.

Defendants identify issues with Good’s previous Complaints which had factual errors as reasons which bring his reputation and veracity into question.  They note that after he failed the October 2016 USADA test, he had a duty to preserve the bottle of Anavite as evidence.

Payout Perspective:

In Good’s Opposition Brief due January 18, 2019, his attorney (and manager) David Fish, will have to address why he should not be disqualified as Good’s lawyer in this case.  Fish represented Good when working with USADA to determine the reasons for the flagged drug test.  Since Good indicated that he gave the bottle to his attorney but he stated he does not have it, the question of what happened to it is being raised by Defendants.  While this is a clear case of shifting the blame and issue, Defendants may have a viable argument since the attorney might have to be called as a witness.  As an attorney and officer of the court, if he had the bottle, he would have to provide it to the other side.  Good states that the bottle of Anavite was tainted with the banned substance.  Defendants want to access the bottle to determine for themselves.

The Court does not have to dismiss the case if the bottle of Anavite is not present, but they could choose another sanction in lieu of this if it is determined that the destruction was done on purpose or negligently.

MMA Payout will keep you updated.

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