Testing ain’t easy
“If you want to make God laugh, tell him about your plans.”
The UFC recently committed millions of dollars to random, comprehensive, out-of-competition testing for performance enhancing drugs. Further, UFC president Dana White and CEO & chairman Lorenzo Fertitta pointed out that the penalties are insufficient – at nine months suspension and 30% of purse, the fighter makes more money than he or she would in losing, and only functionally sits out an extra 90 days.
PED use was jeopardizing mixed martial arts as a viable, acceptable sport. Two bald, tattooed guys climbing into a cage to fight each other until one quits is extreme. Add PEDs, and a tipping point is reached, where is it not acceptable to the general public. Combat sports are dangerous. A number of fighters have died, and more are going to die. While the deaths in MMA are nothing compared to say distance running, if a death came at the hands of steroid fueled fighter, what sponsor would touch it?
The UFC has set July 1 as the deadline for implementation. This giant, multi-million-dollar step is needed. It will not be easy.
In his latest Combat Sports Law blog, British Columbia litigation lawyer, combat sports law consultant, and deeply appreciated UGer Erik Magraken broke down some of the legal and logistical problems that the UFC faces.
Zuffa needs new contracts to make this program a reality. They can start incorporating the needed terms in all new contracts going forward but given that most of the UFC roster is under present contract these need to be renegotiated to make the plans a reality. Here are some of the terms that will need to be addressed:
•To truly be able to test athletes at random, testers must be able to contact fighters on short notice. This means fighters will have to agree to notify Zuffa or the testing agency of their whereabouts on an on-going, year round basis. Programs such as this exist and complying with this is not particularly onerous but forced compliance must be contractually agreed.
•An agreement will need to be reached about the potential range of penalties a fighter can be exposed to for failing to cooperate with the program, be it by not cooperating with providing test samples or for failing a test. These are matters which are normally collectively bargained in major sporting organizations but here, with no fighters association, these terms need to be individually, and uniformly, agreed upon.
•If Zuffa intends to share sample results with Athletic Commissions for them to administer punishment fighters will need to consent to this disclosure of their otherwise private information.
•If Zuffa intents to act as judge jury and executioner for violations of the program due process rights will need to be established allowing fighters to challenge the evidence against them. As a practical matter it would make sense for the parties to agree to some sort of formal arbitration process using the rules that are already in place with the Nevada Athletic Commission as this is the default rule-set Zuffa and Fighters agree to where the UFC self regulates events. Whatever the process, it will need to be contractually addressed.
•If the test results are intended to be released to the public the fighters will need to agree to this as well.
It is in the sport’s long term interests for all parties to cooperate in making the needed concessions to make a meaningful out of competition testing program a reality.
“I think it’s a great step for the UFC,” said Pennsylvania State Athletic Commission Executive Director Greg Sirb. “You’ve got to give them some credit for jumping ahead and doing something on an issue as serious as this. At least they’re being proactive on this, which is good. But each commission has its own state or tribal laws and regulations. So whatever the UFC comes up with, they’re going to have to have it adopted by every state commission. That’s the hard part.”
“My thought would be that the suspension would go to the MMA database as well as the national boxing database, so when that fighter’s name comes up for a card, that’s good information for the commission. I like the idea of them putting that information out there, telling us who tested positive, for what and when. We may not want to license him.”
In California, state athletic commission executive director Andy Foster saw similar challenges, as well as a lot of gray areas that have yet to be filled in. It’s one thing for the UFC to snap its fingers and announce a major change, he said.
“When you make policy shifts, it’s good to do it in incremental steps,” Foster said. “The UFC has a lot of good ideas for further down the field, but we might want to move the ball before we throw a big pass.”
“I know the USADA guys and I have confidence in them, but is that even something we can legally cede control of as a commission? I don’t know yet.”
While UFC officials said they would commit “millions” of dollars to work with a third-party testing agency, they didn’t specify which agency, or who it would report to.
“Whoever this third-party testing entity is, would they report to an athletic commission if it is for a fight?” said New Jersey State Athletic Control Board counsel Nick Lembo. “Or, if it’s not for a fight, would they report it to the (Association of Boxing Commissions), and then ask the ABC to recommend it? It still has to be worked out.”
One potential solution floated by several directors was to route the third-party agency findings through the ABC, which is, at the moment, the closest thing to a national governing body for combat sports that the U.S. has. Even then, cautioned Sirb, “The ABC has no legal authority over any commission.”
When ZUFFA took over the UFC, the sport was nearly dead. Tens of millions of dollars were spent on reviving it, and they failed. A final Hail Mary step was taken. It involved financing a reality show you may have heard of called The Ultimate Fighter. That did pretty well, and in the final event, Forrest Griffin and Stephan Bonnar put on the fight that made the sport. If each of those two had lost in the semis, it would have been Sam Hoger fighting Mike Swick, and the sport might be in a markedly different place.
Saving MMA from PEDs is a far easier fix.
Firstly, the problem has to be defined rationally. The problem in MMA is performance enhancing drugs, not recreational drugs. Nick Diaz smoking pot is not going to tear down the fabric of the sport. Anderson Silva testing positive twice is. From the outset, the focus and testing has to be on PEDs and diuretics, not on recreational drugs. If recreational drugs are wrapped into the solution, it could become a joke. North America is undergoing a sea change on drug use, particularly marijuana. If the sport gets on the wrong side of history, the testing could become a joke, and be buried.
Second, much of this should be done contractually, between the fighter and the UFC. Fighters should agree as a condition of their contract, to testing and suspension guidelines.
Third, in order for the new policy to be implemented, the UFC should mandate licensing by Nevada for all contracted fighters, at all times. Initially, the entire process should be run by Nevada. The NAC can move quickly to increase the penalties from the laughable nine months to something like Federal sentencing guidelines, from perhaps one year to four years, depending upon severity.
When a fighter tests positive, the suspension should not come from a private employer like the UFC; that is a non starter. The suspension should not come from an independent non-profit drug testing corporation; that is problematic. The suspension should come from a government agency, and initially, that government agency should be the NAC, which gets the results directly from the agency hired to administer the testing.
In time, the other leading commissions can change their rules and procedures sufficiently to discourage PED users, and could join a pool of commissions that UFC fighters are contractually mandated to be licensed by.
Fourth, Bellator MMA should adopt an identical policy, with whatever improvements they determine are merited. Viacom does not want to be on the wrong side of the PED issue. Given how widespread use of PEDs is in the sport (passing a piss test for PEDs on a known date is an IQ test), if you are not part of the solution, you are part of the problem. Viacom does not want to be disgraced, the Lance Armstrong of combat sports. And Viacom is in a position as well to do something about PEDs in boxing and kickboxing, something the UFC is not.
Fifth, a multi-layered approach should be undertaken to make sure the suspensions are honored.
Commissions generally honor each other's suspensions, particularly of the suspension is from a leading AC, and particularly if it is for PEDs. In cases where they don't, the UFC should make it abundantly clear that a fighter who commission shops will never fight in the UFC again, ever.
Further, the other leading promotions need to get behind the effort. They need to implement similar testing, as they financially able to. The UFC is going to subject all title fight participants to random, comprehensive, out of competition testing, plus a some random selection of athletes. Other leading promotions should test a percentage of fighters that is economically feasible.
Even more importantly, the other leading promoters have to honor the suspensions. If a fighter tests positive and is suspended for say three years, the other leading promotions worldwide should publicly agree to honor it.
If a fighter knows that once caught, for years there will be no financially significant promotion to turn to, and no chance of ever returning to the UFC, then it will no longer be worth it to use PEDs. And once one fighter feels that way, then his opponent will not feel like he has to juice too.
And thus will the PED problem in mixed martial arts be defeated.