VADA Mess!

VADA Mess!

A Quick Look at the Legal and Regulatory Issues Raised by the Cancellations of Khan-Peterson II and Berto-Ortiz II Following Positive Drug Tests

In one famously bad month for top-level professional boxing, two highly anticipated rematches of 2011 “Fights of the Year” were aced as a result of participants testing positive for banned substances. The unfortunate news began in early May, when it was disclosed that unified junior welterweight champion Lamont (Havoc) Peterson tested positive for synthetic testosterone in advance of his May 12, 2012 rematch with Amir (King) Khan. It continued about a week later when it was disclosed that the June 23, 2012 welterweight rematch between Andre Berto and “Vicious” Victor Ortiz was canceled after Berto tested positive for noandrosterone, a banned steroid. Both positive tests came during random testing administered by the Voluntary Anti-Doping Association (“VADA”) and agreed to by the contestants in their bout contracts. In the wake of these positive tests, what once looked like an outstanding device for making certain that professional boxers did not seek unfair advantages behind closed doors during their pre-fight preparations has now become the flashlight that illuminated what may be a long-time practice in professional boxing. What can be taken away from Peterson’s and Berto’s positive tests? A quick look follows.


Be Careful What You Contract For

A majority of athletic commissions do not compel random drug testing in the weeks and months leading up to a given fight card. Instead, they have a list of banned substances and if a boxer tests positive for one when it comes time for testing, the bout is either canceled (if the testing was done beforehand) or has its result changed (if performed afterward). The random testing by VADA is thus an animal that is born by contract. In the case of Berto-Ortiz II, it was Berto who sought random drug testing following widespread, but unsubstantiated, allegations that Ortiz might have used banned substances in his preparation for their first bout. Peterson requested a similar provision, as he “wanted to shine the light” on the subject of doping in boxing according to a recent interview with Boxing Talk. The lesson here: Be careful what you contract for. While Berto has claimed thus far that he did not knowingly use any steroids or banned substances, and former BALCO head Victor Conte, who was working with Berto, suggested that trace contamination might be to blame, Berto would not have necessarily been in this situation when it came time for drug testing had he not sought random drug testing for the Ortiz rematch. Nor necessarily would have Peterson, if the synthetic testosterone that he purportedly took due to low natural levels of testosterone would not have turned up in an official pre-fight drug test.

While it is easy to say that one should simply not agree to random drug testing in a bout contract, however, the reality is that now that VADA offers such a service, professional boxers and their teams may be hard-pressed to refuse to enter into an agreement that provides for it. Indeed, the implication of refusing to submit to random drug testing carries the hint of impropriety. If you have nothing to hide, why not submit to testing? If you do have something to hide, do you really want to raise that red flag by refusing to submit to it?


Could Positive Tests be Waived by the Participants?

So what would happen if Ortiz and Khan told their respective promoters to simply guarantee them more money in exchange for allowing their respective bouts to go on despite the positive tests? Odds are the bouts would have been cancelled by the Nevada State Athletic Commission anyway. While there are many aspects of a professional boxing match that can be manipulated by contract, such as catch weights, ring sizes, and glove sizes, the use of banned substances is not one such aspect. Rather, once a positive test for a banned substance is revealed an athletic commission has virtually no choice than to deny a given boxer a license to participate in his scheduled bout.
Could an athletic commission decide to simply see if the substance turns up in a boxer’s system when it is officially time for pre-fight testing? Perhaps, but that would not make for good policy, as such an allowance would do little more than encourage boxers to stop their usage of banned substances in time for them to not show up in testing. Whispers about such cycling have been made for many years in boxing. The only difference now is that if random drug testing is contracted for, one will never know when to stop using a banned substance in advance of a possible test.

Would the Therapeutic Use Exception Have Saved Either Bout?

According to VADA’s official “Therapeutic Use Exception” policy, an athlete will be granted the privilege of using otherwise prohibited substances for therapeutic purposes only in “strict accordance with the following criteria:

a. The athletic would experience significant health impairment if the method or substance were withheld in the course of training or competition.
b. The therapeutic use of the prohibited substance or method will not produce any additional enhancement or provide the Athlete with an unfair advantage or disadvantage other than that which might be anticipated by a legitimate medical condition that will maintain the Athlete’s normal health.
c. There is no reasonable therapeutic alternative other than the prohibited substance or method.”

Further, an athlete seeking the benefit of the “Therapeutic Use Exception” must submit the application for same “as soon as possible, in most cases no less than twenty-one (21) days before he/she needs approval (for instance, when registered as a VADA Athlete).” An application will not be considered for retroactive approval “except in extremely rare cases where:

a. Emergency treatment or treatment of an acute medical condition was necessary, or
b. Due to exceptional circumstances, there was insufficient time or opportunity for an applicant to submit, or VADA to consider, an application prior to doping control.”

Peterson claims that he began taking synthetic testosterone after it was discovered that he had low testosterone levels following repeated bouts of fatigue during his preparation for the first Khan fight. If that continued to be the case going into the rematch, however, Peterson should have sought use of the Therapeutic Use Exception both in the bout contract with Khan and through VADA employing the above-quoted procedure. If Peterson were to apply for it now, he would be compelled to shoe-horn his purported deficiency into the “emergency treatment” category or the “exceptional circumstances” category, neither of which is a slam-dunk given the circumstances. Berto’s situation is more clean-cut; he is denying that he knowingly used any banned substances in the first instance, so the Therapeutic Use Exception would never have come up in his negotiations with Ortiz. Parenthetically, Berto suffered a biceps injury in January which resulted in a postponement of the Ortiz rematch. James (Lights Out) Toney tested positive for a banned substance following his 2005 heavyweight bout with John (The Quiet Man) Ruiz and blamed the treatment of a biceps injury for same at the time. It would thus not be without historical precedent if the same thing happened with Berto seven years later.


Is There a Duty to Disclose the Use of Such Substances in the Absence of Random Drug Testing?

In almost every written contract, there are implied duties of good faith and fair dealing. Additionally, there is the lingering possibility that one can later turn around and assert that they would have not entered into a given contract in the first instance had they known about one fact or another and thus seek to get out of it. One would hope that a professional boxer would act in good faith and deal fairly with his prospective opponent and not use banned substances in his preparations for their bout. Similarly, one would hope that a material fact such as the therapeutic use of a banned substance would be freely exchanged with the opposing party. In reality, however, there is a tremendous dilemma that would arise if a boxer made such a disclosure. This is because even if the parties agree to go forward with the bout despite the usage, if the usage is expressly addressed in the bout contract as part of a random drug testing provision, odds are the athletic commission approving the bout will find out about it and perhaps decide to cancel it. Should there thus be an unofficial willful ignorance or don’t ask, don’t tell policy governing the topic of banned substances during bout negotiations? Standing 8 Court defers to the ethics and good judgment of the boxing community’s managers, promoters, and attorneys to do their own soul-searching on that question.

As to whether there is an affirmative duty to disclose the use of banned substances to a given athletic commission or sanctioning body, the answer is: do so or do not at your own peril. If you disclose it based on purported therapeutic use, be sure you are educated on how a given commission or sanctioning body will handle such a situation under its rules and regulations. If you do not disclose the use of a banned substance, it is a certainty that you will either be denied a license or have it suspended and that your bout will be canceled if you are caught during the commission’s mandatory testing or that you may be stripped of your title or be declared ineligible to fight for one by a sanctioning body.

Boxing fans would be fooling themselves to believe that banned substances have not been quietly employed by professional boxers for generations. It just so happens that May 2012 became the month where their use came under heightened scrutiny following the cancellations of Berto-Ortiz II and Khan-Peterson II. The cancellations were the end result of a movement toward contracted random drug testing prior to big fights in the era after the negotiations between Floyd Mayweather, Jr. and Manny Pacquiao fell apart over Mayweather’s demand for random drug testing. The random drug tests may be a tremendous step towards closing the gaps in drug testing requirements between different athletic commissions and making sure that the playing field remains level, but VADA mess they have created this month!

Originally published on May 24, 2012 on 8 Count

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