Mara Borella’s drug trafficking suspension and the UFC-USADA policy

Friday, September 14, 2018

MMA-Today reports that the UFC’s Mara Borella was just handed a 26-year ban by the National Anti Doping Agency of Italy for the distribution and sale of cannabis and cocaine.

So what does this mean under the UFC’s custom-tailored, anti-doping policy? Perhaps nothing. As the Jon Jones case illustrated, cocaine use or possession out of competition is generally not a combat sports violation.  The same can be said for cannabis.

Both Cannabis and Cocaine are not banned out of competition under the UFC/USADA Anti-Doping Policy (the “ADP”). There is also nothing in the policy that automatically forces the UFC/USADA to recognize a ban from another organization.

Section 15.1 of the ADP notes that the UFC should respect anti-doping decisions from other organizations however this requirement is not ironclad.  The section reads as follows:

Testing, hearing results or other final adjudications of any Athletic Commission or other Anti-Doping Organization which are consistent with this Anti-Doping Policy and are within that party’s authority shall be
recognized and respected by UFC.

The key is the other organization’s decision has to be “consistent” with the ADP.  The ADP does not prohibit trafficking drugs that are only banned in-competition except in limited circumstances.   The ADP has the following definition of trafficking –

Trafficking: Selling, giving, transporting, sending, delivering or distributing (or Possessing for any such purpose) a Prohibited Substance or Prohibited Method (either physically or by any electronic or other means) by an Athlete, Athlete Support Person or any other Person subject to the jurisdiction of an Anti-Doping Organization to any third party; provided, however, this definition shall not include the actions of “bona fide” medical personnel involving a Prohibited Substance used for genuine and legal therapeutic purposes or other acceptable justification, and shall not include actions involving Prohibited Substances which are not prohibited in Out-of-Competition Testing unless the circumstances as a whole demonstrate such Prohibited Substances are intended to enhance sport performance and not for genuine and legal therapeutic purposes.

If USADA wished to recognize the Italian suspension Borella could argue that selling cocaine/cannabis does not amount to ‘trafficking‘ under the ADP unless there is proof that the sale of the drugs was “intended to enhance sport performance” of the people purchasing. Absent proof of this specific requirement the ADP’s definition of trafficking is not met.

If the UFC wish to take action they would have likely have to use powers outside of the ADP such as potentially cutting her for coming off of a loss or otherwise take action based on their Code of Conduct. If they try to rely on the language of the ADP efforts to sanction may fall short.

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Author Erik Magraken is a British Columbia litigation lawyer, combat sports law consultant, founder of the Combat Law Sports Blog, and profoundly appreciated UGer.