Judge sides with supplement maker in motion in Lyman Good’s lawsuit

September 6, 2019

The Court in the Lyman Good nutritional supplement lawsuit has granted the defendants’ motion to dismiss related to the issue of spoliation of evidence.  While the court will not outright dismiss the case, the order states that the jury may infer from the lack of evidence.  A trial date has yet to be set.

Order on Motion to Dismiss … by Jason Cruz on Scribd

The United States District Court for the Southern District of New York heard oral arguments on August 19th on the Motion to Dismiss from defendants Gaspari Nutrition and Hi-Tech Pharmaceuticals.  The Court make a quick ruling by granting in part defendants’ Motion to Dismiss on the same day.  Defendants had requested that the Court dismiss the case due to the spoliation of evidence – a missing bottle of Anavite which Good claims was contaminated and per defendants’ is the key piece of evidence in the lawsuit.  The request to dismiss the case is one of the potential penalties under the rules of civil procedure if a party does not provide evidence to another.  It is the most severe of the penalties. In addition, defendants originally requested the Good’s attorney, David Fish, recuse himself from the case since he could be a potential witness (i.e., Good claimed he gave the bottle to Fish but Fish stated that he no longer had it).  But defendants seemed to back off this claim.

 

Defendants also pointed out that the bottle in question was not listed in Good’s list of supplements he was taking to USADA.

Defendants’ Motion also shows its request to Good and his attorney for the bottle in question. The below correspondence which was attached to the Motion from defendants shows a bottle they received but not the subject Anavite.

There is no real opinion as to what the Court dismissed of the claims that Good set forth or whether this was a general granting that plaintiff and his counsel mishandled the evidence.  The ruling seems to imply that a jury could not side with Good based on the lack of evidence and/or the defendants would have a necessary advantage since they would be allowed to argue that a reasonable jury could not conclude that the product was contaminated because plaintiff does not have the product.

Payout Perspective:

This case shows that not every fighter that sues a supplement maker will receive $27 million dollars like Yoel Romero (or at least receive a judgment for that amount).  There is no trial date set but one would imagine that Good will look to settle or defendants will go for the kill here.  In speculating on the granting of defendants’ motion without a written opinion, one has to believe that the Judge does not believe that a jury will be able to find in favor of Good without the evidence.

Defendants’ Motion to D… by Jason Cruz on Scribd

Motion to Dismiss – Opposition by Jason Cruz on Scribd

Motion to Dismiss – Reply B… by Jason Cruz on Scribd

Dan Hardy getting ready for a comeback?

August 21, 2019

A lot has happened in the sport of MMA since 2012.  It was Dan Hardy’s last time in the Octagon.  Now, the current UFC commentator says he’s getting ready for a return to the Octagon.

Hardy announced on the Joe Rogan Podcast (via MMA Junkie) that he is entering the USADA testing protocol.  According to the rules, once he’s been in the random-testing pool for four months he’ll be able to fight in the UFC once again.

You may recall that Hardy was sidelined due to Wolff-Parkinson-White Syndrome.  The past several years Hardy has served as a commentator for the promotion mainly doing European events.

At 37, one has to conclude that Hardy misses the competition of MMA and believes that his health will not be a factor upon return.

Payout Perspective:

Hardy does a great job as a commentator but you have to believe that he thinks it was a ‘now or never’ situation on a return to the Octagon.  Nate Diaz’s return from a three-year hiatus may have motivated Hardy but his health situation is something to give pause upon return. With the UFC putting on weekly events all over the world, Hardy may be a name that might see a rebirth of a career if physicians allow it to happen.

UFC middleweight given 3 month sanction by USADA

July 18, 2019

USADA announced that Alen Amedovski has accepted a six-month sanction for the use of marijuana above the accepted range.  The native of Italy had his sanction reduced to just three months after completion of a USADA approved drug awareness and management program.

The UFC’s anti-doping partner on Thursday announced a three-month suspension for Amedovski.  An in-competition urine sample came in over the 150 ng/mL limit for Carboxy-THC for his octagon debut at UFC on ESPN+ 7. The event took place April 20 in Saint Petersburg, Russia.  His period of ineligibility ends Saturday.

Amedovski lost a decision to fellow middleweight Krzysztof Jotko in his debut with the UFC.  He was previously undefeated after coming off of two victories in Bellator.

Payout Perspective:

Amedovski’s infraction was exceeding the threshold for marijuana use at the time of the fight.  With the softening of regulations around the nation, it would be interesting to see if the UFC decides to lighten the restrictions for its use.  This might not be within WADA regulations, but would be something that could be done.  Obviously, the drug awareness program helped mitigate the already cut-down sanction against the 31 year old middleweight.

USADA issues 2 year ban for UFC light heavyweight

July 9, 2019

Former UFC light heavyweight Ivan Shtyrkov has accepted a two-year suspension from USADA for violation of the UFC anti-doping rules.  The Russian stated on social media that he tested positive for a banned substance and this was confirmed by USADA on Tuesday.

Despite accepting the suspension, Shtyrkov has signed with Rizin FF.

Shtyrkov accepted a fight against Devin Clark at UFC on ESPN +7 this past March but that fight was scrapped after USADA notified the UFC that two out-of-competition urine samples had returned an “atypical” result.  The samples contained the banned steroid boldenone and its metabolite 5β-androst-1-en-17β-ol-3-one.  Boldenone is a veterinarian drug used on horses but has been used by professional athletes.  Notably, Stephan Bonnar and Josh Barnett had tested positive for the banned substance.

Boldenone is a non-Specified Substance in the class of Anabolic Agents and prohibited at all times under the UFC Anti-Doping Policy, which has adopted the World Anti-Doping Agency (WADA) Prohibited List.

Shtyrkov is undefeated with 16 wins and one draw.  It was initially announced that he was “sick” and hospitalized as a reason from pulling out of his fight with Devin Clark.   Shtyrkov’s manager indicated that a USADA test came back with an abnormal reading and not a positive test for PEDs.

Payout Perspective: 

 Here’s a case where you can argue that the USADA tests were not conclusive for the banned substance.  Yet, evidence was clear enough to pull him from his UFC debut and we are brought back to the argument about how long a substance can remain in one’s system.  We’ve seen this with Jon Jones and this may have been another case.  Despite the ban, Shtyrkov has decided to continue his career with Rizin.

Sean O’Malley USADA tests come back positive from residual Ostarine levels

June 22, 2019

Sean O’Malley is out of his July 6 fight with Marlon Vera according to the bantamweight in an Instagram post.  Coming off of a six month suspension, O’Malley could be facing another USADA suspension as he stated that a recent test found Ostarine in his system.

O’Malley was coming off of a suspension for a finding of Ostarine in a contaminated supplement.

 

View this post on Instagram

 

Punished twice for doing nothing wrong. I have never taken anything illegal. I don’t know what’s going to happen, but I will continue to train and get better everyday. “You have power over your mind – not outside events. Realize this, and you will find strength” -Marcus Aurelius

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

He stated in his Instagram post that two recent tests have found Ostarine.  He claims that USADA believes that his tests are related to residual from last level and “the low level is not providing me with no performance advantage,” per O’Malley’s social media post.

A similar situation occurred with Jon Jones and Turinabol when USADA determined that the trace amounts would not give him an advantage.

Payout Perspective:

O’Malley seems upset with this outcome but one has to wonder if USADA and the UFC are now changing its standard when it comes to drug testing.  As it did with Jon Jones, it is now focusing on whether or not the banned substance in the system would give the athlete a “performance advantage” versus a zero-tolerance standard which would hold the athlete responsible for what they ingested.  Obviously, the issue of contaminated substances may be factored in to consideration which may be O’Malley’s argument.  Yet, it’s still seems like a shift on how USADA addresses drug test failures.

Yoel Romero just received a huge judgment. Will he ever see it?

May 28, 2019

Yoel Romero obtained a judgment against supplement maker Goldstar in state court in New Jersey.  At a hearing to determine damages, the Court issued an order granting him damages totaling $27 million.  Of course, the issue will be collecting on the amount.

Romero was suspended by the UFC for violating the UFC Anti-Doping Policy and was suspended for 6 months.  For working with USADA in determining the alleged tainted supplement, he received a lighter sentence that the guidelines.

Once the source of the alleged failed drug test was identified, Romero decided to sue the supplement company.  Romero used the product Shred Rx made by Goldstar Performance Products.  Despite filing the lawsuit, Goldstar Performance Products never responded to the lawsuit.

According to its web site, the company is based out of East Hanover, New Jersey and features a variety of supplements.  It was noted that the supplement contained Ibutamoren, a banned substance. The substance increases lean body mass to create bigger muscles.

As a penalty for not responding to the lawsuit, Romero moved for an order of default and default judgment.  This came to fruition this past December.

Yoel Romero Default by Jason Cruz on Scribd

In requesting this order from the Court, it essentially confirms that the allegations brought by Romero are true and that a hearing may be set to claim the damages.  On Tuesday, the hearing day came for Romero.  Howard Jacobs, the renowned doping lawyer from Southern California, made a special appearance before the Court to argue the damages for Romero.  It was announced that the Court awarded $27.45 million to Romero.

Of course, this is great.  But, with everything legal, you should leave it up to the lawyers.  Real lawyers.  Obtaining a judgment is one thing.  No doubt a success.  But collecting on the debt is another.

Most MMA fans probably don’t know that there must be another proceeding (a completely separate lawsuit) for Romero to realize on the judgment.  This might include having to pay to get the money from the defendant and even repossessing property to realize on the actual dollar amount.  Even then, it’s unlikely he’ll see that much money.  Moreover, in these situations where a company just flat out doesn’t respond to a lawsuit, the plaintiff is just holding a piece of paper.  Even if there were assets, they may be in line with more senior creditors trying to get money from them.  But most likely, they won’t get the amount the Court granted them.

In the event that Goldstar is still around, there can be several issues at hand.  First, they may be claiming no jurisdiction because they have no contacts with the state court in New Jersey.  This might be a little far-fetched based on its business address and the old “International Shoe” test for you lawyers out there.  Second, they might still appear in the lawsuit within a certain period of time. If so, they can ask the Court to ‘set aside’ the judgment.  There might be a monetary penalty if the Court thinks they were just being lazy, but not a $27.45M penalty.

In the end, the judgment looks great on paper.  But, unfortunately for Romero, it may be that all he’ll have is paper to hold the judgment.  MMA Payout will keep you posted.

Magny reveals reason for withdrawal from Luque fight

May 14, 2019

UFC middleweight Neil Magny revealed that the reason that he had to pull out of his scheduled bout this Saturday was due to notification from USADA that he was being flagged for a potential violation.

Magny announced via social media that he received an email from USADA that an “out of competition” test on May 5th revealed the banned substance of Di-Hydroxy-LGD-4033.  It is an investigational Selective Androgen Receptor Modulator (SARM) for treatment of conditions such as muscle wasting and osteoporosis.  Notably, University of Florida quarterback (at the time) Will Grier was suspended for testing positive for the substance.  NBA player (also UF alum) Joakim Noah was banned twenty games for testing positive for the use.

 

View this post on Instagram

 

As many of you know, I had to withdraw from my sceduled bout against Vicente Luque on Saturday, May 18th. I want to apologize to him, as I know how difficult it is to lose an opponent days out from a fight. Throughout my MMA career I have been very transparent. I am not afraid to admit when I am in the wrong. On Saturday, May 11, 2019, I recieved an email from USADA stating that I have failed an “out of competition drug test” due to the banned substance “Di-Hydroxy-LGD-4033”. I am fully cooperating with USADA to determine how this substance was found in the sample I provided them on May 5, 2019. I have always been an advocate for the strict drug testing in the UFC, even to the extent of opting for my collected samples to be used for research purposes by USADA. I know without a doubt that I have done everything according to the standards set by USADA. I have faith in USADA that this situation will resolved in a timely manner and that I will be cleared of any wrong doing. To all of my fans and supporters, thank you. I assure you that I have not let you down.

A post shared by Neil Magny (@neil_magny170) on

In the example of Noah, an article reporting on the finding claimed he had unintentional made a mistake and that certain dietary supplements may contain the banned substance.

Payout Perspective:

Due to the rule which precludes the announcement of flagged tests, it was not known why Magny pulled out of his co-main event fight against Vinente Luque.  Like other fighters in this position, Magny decided to make the announcement himself rather than let speculation continue over his status.  He is working with USADA so one would hope that if the finding is through a tainted supplement, he is given the benefit of the doubt like others before him.  Magny’s public reveal of this issue shows his transparency which makes him much more credible with USADA and the fans.

USADA cancels the rest of Amanda Ribas’ suspension for ostarine

May 3, 2019

In an interesting turn of events, USADA has granted a reduction of sanction of Amanda Ribas’ period of ineligibility due to a finding of ostarine in a drug test. She is now allowed to return to fight for the promotion.

Ribas tested positive for ostarine on June 7, 2017.  The Brazilian had been serving a two-year sanction.  But Friday’s news eliminates a further sanction for the women’s strawweight.

“USADA believes it is fair to allow Ribas to return to competition after serving the majority of her two-year sanction,” it announced in a standard release.

A key passage in USADA’s release states:

The termination of Ribas’ sanction reflects USADA’s recognition of the demonstrated prevalence of ostarine in a wide range of supplement products used by athletes (see USADA High Risk List for more than 70 products) and that ostarine has frequently been found as a product contaminant. The trace amounts of ostarine found in Ribas’ sample was made possible by sensitive laboratory detection capabilities and has been followed by four negative tests. As Ribas was unable to identify the source of her positive test, and taking into consideration the likelihood that her positive test was the result of an ostarine contaminated dietary supplement product, USADA believes it is fair to allow Ribas to return to competition after serving the majority of her two-year sanction.

Ribas’ reduction in sanction comes right after USADA reduced suspensions for tainted supplements of four fighters.

Payout Perspective:

This is a pretty big deal as USADA has never revisited a previous violation.  Also, this brings up the issue with prior fighter sanctions and whether reparations should be in order for those that have served suspensions without USADA revisiting their case.  The overarching standard is that the athlete is responsible for what they ingest.  Even if the athlete ingests a contaminated supplement, they are subject to the mandatory two-year suspension.  Recently, it appears that USADA is softening its stance on the hardline mandatory two-years with some, like Walt Harris receiving just 4 months.  Even Harris has threatened legal action due to the sanction as his test was due to a contaminated supplement.

It appears that UFC Anti-Doping Program is transitioning into assessing the issue with contaminated supplements.  While this may be an added improvement, the refrain from fighters scarred by the previous program will be a public relations issue.

Harris threatens lawsuit against supplement maker/distributor after serving USADA suspension

May 2, 2019

UFC Heavyweight Walt Harris states that he will take legal action against the maker and distributor of a supplement that caused him to be suspended per the UFC Anti-Doping Policy.

A win over Andrei Arlovski was overturned due to the failed USADA test.  It was discovered that a supplement he ingested was tainted with the anabolic agent LGD-4033.

Harris, speaking to reporters this week ahead of his upcoming fight against Sergey Spivak, he indicated that he was upset about his reputation being damaged.  Issues of jurisdiction remain a question prior to filing of Harris’ lawsuit according to his representatives.

In recent memory, Lyman Good and Tim Means have filed lawsuits against supplement makers and distributors based on their USADA suspensions.  Both cases are still pending New York and New Mexico respectively.

USADA had reduced its mandatory two-year sentence for a first offense to four months due to mitigating circumstances as Harris worked with USADA and was able to pinpoint the supplement which caused the issue. It was Harris’ first offense.

Payout Perspective:

While Harris may have viable claims, the question will be whether he will want to endure the time and cost it will take for him to go through a lawsuit.  Also, is he willing to disclose information about his earnings to recover damages and restore his name?  Harris received just a 4-month suspension and had his win reversed to a no-contest. Damages may be minimal as opposed to the legal costs involved.  MMA Payout will keep you posted.

USADA announces sanctions for four UFC fighters for Ostarine

April 23, 2019

USADA announced that four UFC athletes have accepted six-month sanctions for violating the UFC Anti-Doping Policy for trace amounts of ostarine “consistent with supplement contamination.”

Via USADA release:

USADA has resolved the following cases, after conducting a thorough investigation and finding no evidence of intentional use, consistent with other supplement contamination cases:

  • Augusto Mendes, 36, of Glendale, Ariz., tested positive for ostarine following an out-of-competition test conducted on March 7, 2018. He accepted a six-month period of ineligibility that began on March 20, 2018, the date he was provisionally suspended from competition.
  • Marvin Vettori, 25, of Mezzocorona, Italy, tested positive for ostarine following an out-of-competition test conducted on August 24, 2018. He accepted a six-month period of ineligibility that began on August 24, 2018, the date he was provisionally suspended from competition.
  • Sean O’Malley, 24, of Phoenix, Ariz., tested positive for ostarine following out-of-competition tests conducted on September 5, 2018 and December 8, 2018. His two positives were treated as a single, first violation because the amount of ostarine in both samples is consistent with ingestion prior to September 5, 2018. He accepted a six-month period of ineligibility that began on September 19, 2018, the date he was provisionally suspended from competition.
  • Nicco Montano, 30, of Albuquerque, N.M., tested positive for ostarine following an out-of-competition test conducted on October 25, 2018. She accepted a six-month period of ineligibility that began on November 15, 2018, the date she was provisionally suspended from competition.

Payout Perspective:

The blanket six-month sanction for these four fighters may bring into question of the use of ostraine and its contamination with other supplements.  It also brings back the controversial two year sanction for Tom Lawlor.  The former UFC fighter, now mostly pro wrestler had his career in the promotion come to an end because they could not pinpoint the ostarine that showed up on a failed USADA test.  These light sentences was blasted by Lawlor on social media.

Next Page »