More on Cung Le’s pending arbitration

MMA Fighting reports on the looming arbitration that will decide Cung Le’s suspension from a drug test which found elevated levels of hGH in his system.  The arbitration will be governed by the American Arbitration Association and procedures related to Olympic sport doping disputes.

According to MMA Fighting’s article, one arbitrator would be named although the parties could field three.  It appears that the arbitrators would be selected from the AAA Court of Arbitration for Sport panel. The panel is experienced in doping arbitrations which we may assume arise from Olympic drug testing disputes.

As was previously reported, it was confirmed by the UFC that Le would have a right to an appeal and it would be through AAA.  The description of the AAA arbitration process is similar in nature to that of a trial.  There would be a pre-hearing conference and then an “evidentiary hearing” (as described by the MMA Fighting article) which would determine the evidence submitted by both parties.  After this is decided, the arbitration will take place.  After the arbitration, the panel will make a decision within 30 days from the hearing.  Their decision will be binding.

It should be noted that one of the contention’s Le has made was that the laboratory that gathered the samples were following World Anti-Doping Agency (WADA) rules but was not a WADA-approved lab.  According to a law review piece by law professor Maureen Weston at Pepperdine University’s School of Law, under WADA rules, the doping report, conducted by a WADA-accredited lab, is presumed valid.  In citing the World Anti-Doping Code, the burden would be on the athlete to come forward with evidence that rebuts the presumption of doping, by showing the laboratory’s practice departed from international standards.  In Le’s case, the question is whether this presumption holds true for non-accredited lab if they followed the WADA protocol.

Payout Perspective:

This arbitration process may expose the UFC’s shortcomings when it comes to its drug testing policies especially in situations like these where it must act as its own regulator.  As we previously noted, the actual process for appealing the drug suspension was in question and we might infer, is not explicit in Le’s contract.  We state this because if an appeals process was clear, Le’s manager would have come out an indicated as much in their initial response to the UFC suspension.  Regardless, the process for the arbitration may reveal that the UFC was not prepared to drug test its fighters for this event.  Even if the reason was that the organization decided to conduct such testing on short notice, it should have had a system in place where it would have complied with WADA rules.  We will have to wait and see.