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A Change Is Gonna Come: An in-depth look at drug testing in California

Where regulating bodies oversee athletic competition, athletes, in order to be licensed, agree to be bound by the rules and regulations of that state’s commission. However, disputes arise and professions are injured when rules lack clarity and are applied arbitrarily.

Citing the California State Athletic Commission (CSAC), as of 10/31/07 their doping guidelines follow the World Anti-Doping Agency (WADA). Section 3.1, “The [regulator] shall have the burden of establishing that an anti-doping rule violation has occurred…to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.”

While a ruling against the athlete, whether justified or not, has no adverse consequence to the regulating body, the athlete may be forced to surrender championships and forfeit competitions, costing the aggrieved among other things, pride, market value, fines and other legal fees possibly into the hundreds of thousands of dollars. The ambiguity of the WADA code creates a confusion between the athletes and the commission which will always prejudice the athlete.

To date, there is no readily available case of an athlete who passed his anti-doping test while using a banned substance. Obvious financial and social injury aside, less obviously, no such case may exist because the athlete doesn’t know of the violation until the commission tells him so since, the commission alone makes that ruling. A thorough search of the CSAC and WADA website, including all published codes and regulations yields no definitive answers on unacceptable levels of substances. Thus, the CSAC appears to have absolute authority and discretion to determine unacceptability because they have neither a higher authority to which they answer, nor a published code by which they abide. Confusion therefore, predictably arises when the athletes have no way to know the rules.

If there is no overseeing authority, does that make the regulating body’s authority absolute? In the case of Sean Sherk, it would appear so. Although the CSAC has unconditional power to determine whether any level of substance is too high; still they provide an illusory appeals process.

What are my rights when I am being tested?”

You have the right to:

1. Bring a representative with you during the test.

2. Have the Commission representative explain any procedure that you do not understand.

3. Provide feedback.

4. Document any portion of the test that may not feel right to you.”

Summarily stated, “(2) The CSAC will explain only if you ask, but even though (1) you may have someone witness and (4) document misconduct, the CSAC has no obligation to impartiality (3) but you may provide feedback.” This begs the question, “if a falsely accused athlete’s career has been irreparably damaged or terminated as a direct result of misconduct by the CSAC, can the CSAC be held accountable and do athletes have any means of protecting themselves?”

Sherk was accused, according to statements published by ESPN/Sherdog on 7/17/07, “after testing both ‘A’ and ‘B’ samples of the urine specimen provided by Sherk the day before the fight, the UFC former champion’s Nandrolone level was certified by the Director of Science and Technology at the lab conducting the tests at 12 ng/ml, two times higher than the threshold allowed by the CSAC.”

“The Muscle Shark” responded by going through the appeals process where he asserted that the Quest Diagnostics was negligent with his samples. Citing Yves Reznik et al., The Journal of Clinical Endocrinology and Metabolism, concentrations could be raised by as much as a four-times-multiplier without a correction for the decrease in volume dieresis. Without taking proper precautions, as Sherk had suspected, his Nandrolone levels could have been within the accepted threshold. Sherk presented stronger evidence of misconduct when, in a subsequent visit to Quest Diagnostics, a “water blank” was also shown to test positive for Nandrolone. Still, the CSAC was adamant in refusing to acknowledge contradicting evidence.

Disturbingly, the CSAC doesn’t actually hold themselves to the WADA rules section 3.1, “Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability…where the Athlete must satisfy a higher burden of proof.”

Sherk’s discovery, documentation and evidence of testing misconduct should have at minimum prompted an investigation by the CSAC as the balance of probability shifted drastically away from Quest Diagnostics’ findings. However, public statements by the CSAC showed only a stubborn instance on guilt without “bearing in mind the seriousness of the allegation which is made.”

As more of these cases pile up, it is becoming irrefutably clear that the CSAC cannot be allowed absolute authority.

Here’s to hoping that recent developments with Josh Barnett help us move towards a solution.

6 COMMENTS
  • Really, random testing should be the norm.

    If you are licensed to fight in a state, that state reserves the right to ask for a piss test at any time.

    It seems pretty obvious that Barnett was using a steroid he knew would flush out of his system by fight time and he got caught red handed.

    And it’s not unreasonable to think that a high majority of fighters do the same thing.

  • metalmulisha says:

    There should be an In Depth look into the CSAC themselves.

    There has always been whispers of corruption in the CSAC as long as I’ve been watching combat sports MMA & Boxing and just look at all the dirt that came out about Armando Garcia before and after he resigned. The man was a crook and a disgrace and he was in charge of the commission.

    Allowed an HIV positive fighter to fighter, suspended Josh Thomson because Thompson wore a t-shirt calling Frank Shamrock a bitch, cancelling fights literally at the last second, and completely screwing up the Sherk and Baroni failed test results all because the man was inept.
    Not to mention his sexual harassment scandal. And this guy was in charge for years.

  • David Andrest says:

    “Really, random testing should be the norm.”-Sergio Hernandez

    Simple as that!

  • Bill J. says:

    The prudent thing for CSAC to do would be to follow the lead of the US Antidoping Agency and contract the hearings out to an independent organization. USADA uses the American Arbitration Association. Both USADA and the athlete make their case to a panel of 1 or 3 arbitrators and the arbitrators decide the case based on the WADA regulations.

    The downside to CSAC doing this is cost. CSAC would be forced to pay for lawyers to present their case and for the cost of the arbitrator(s) and hearing.

    CSAC should be commended for not using Quest Diagnostics anymore. Now the samples are tested by the UCLA WADA lab which is one of the best in the world.

  • I agree with random testing and think it is the next step towards cleaning up the drug problem in MMA. The only thing I don’t like is seeing fighters busted for smoking weed when they are not training for a fight. To classify it as a performance enhancer is laughable. If a fighter has a prescription I believe the CSAC should let it be.

  • mu_shin says:

    I have no background in organic chemistry, but have read extensively on steroids and performance enhancing substances.

    I had to read this article twice to make some sense of it. Perhaps Mr. Whitaker has a legal background, as he writes like a lawyer…

    My postulation is this: blood and urine testing for steroids usually consist of detecting metabolites of the drug being used, meaning they don’t test for the drug itself, they test for the byproducts the body manufactures after processing the drug. Nandrolone and other anabolic/androgenic steroids are close chemical copies of testosterone, distinguishable in various chemical assays from naturally occuring testosterone. Is there an acceptable level of nandrolone metabolites in an athlete’s system, if nandrolone is a banned substance? Isn’t nandrolone an exogenous anabolic steroid, and not a naturally occuring sustance in the body? Isn’t any level of a banned substance cause for failing the drug test? Is Sherk’s argument that he used acceptable levels of nandrolone, but not enough to break the nebulous rules cited above? What if he tested positive for heroin? Would he argue his sample was mishandled, and the levels of heroin in his system were concentrated in his sample due to incompetent lab work, but he had used acceptable levels of heroin?

    In reading about bodybuilding, cycling, and combat sports, and in my own experience as a martial artist and long time weightlifter, I know that Sherk could have failed the drug test having used pro-hormone supplements that were legal in the US, and that are known to metabolize in a manner consistent with nandrolone. A professional athlete has to accept responsibility for what goes in his body, and accept the consequences if his awareness and education are incomplete or limited.

    Mr. Whitaker’s final point would seem well taken, in that the rules by which the California State Athletic Commission oversee drug testing seem vague and inexact, not to mention unintelligible to the average lay person. If there have been technical problems with lab work as alleged by Mr. Sherk, this obviously needs to be addressed, but before samples even get collected, the rules regarding banned substances need to be clearly elucidated.

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