Update February 21, 2017 – Today Ryan Madden, Communications Manager for USADA, was kind enough to reply to both questions posed below. He elaborated on the retroactive TUE standard in place for USADA and further confirmed that Justino did not initially disclose her use of Spironolactone to USADA’s doping control official when collecting her sample.

The legal significance of this is it suggests that failing to disclose a medication you are taking to USADA upon sample collection, even if it is a prohibited substance absent TUE, is not in and of itself a policy violation so long as you are using the substance for “legitimate medical purposes“.

Below is Madden’s full reply:

Her use of the medication was not initially disclosed; but more importantly, once contacted by USADA, she immediately identified the medication as the source of her positive test, submitted all necessary medical information and demonstrated that it was being used for legitimate medical purposes without enhancing her performance. Those are the primary considerations when reviewing any TUE application.”

On background: The criteria for application above is specific to the Olympic side. For UFC athletes, retroactive TUEs will only be considered where the use of a prohibited substance or method is medically justified. However, this is the just the criteria that an athlete has to meet in order for their application to be considered. Once that is determined to have been met, the athlete is then subject to the same TUE protocols as all other athletes. This is a comprehensive process that includes submitting extensive medical documentation that is reviewed by a committee of medical professionals from across the country. This therapeutic use exemption committee (TUEC) is made up of over 20 members, and at least two members review each TUE application — unless there is a split-decision in which case a third member is brought in. Athletes must prove there is a legitimate clinical need for the substance, prove the substance is only being used to return them to normal state of health, and that there are no alternative, non-prohibited medications available.

USADA encourages all athletes to apply for a TUE prior to the use of any prohibited substance or method to ensure they are not at risk for an anti-doping policy violation.

For information on the UFC TUE guidelines, visit our website here.

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Last week the United States Anti Doping Agency published a press release noting they were providing Cristiane “Cyborg” Justino a retroactive therapeutic use exemption (“TUE”) after she tested positive for a prohibited substance in December of 2016.

The substance in question was Spironolactone, a prohibited diuretic and masking agent. The drug has legitimate medical applications and Cyborg clearly persuaded USADA that her use of the product was above board.

While there is nothing controversial about granting a TUE when a drug is legitimately needed (whether immediately or retroactively) two questions arise from the Cyborg case

If Cyborg failed to disclosed the drug’s use at the time of sample collection could that not be a stand alone violation? What standards do USADA use when granting a UFC fighter a retroactive exemption and do these differ from standards for other athletes?

On the first point, standard protocol when a urine sample is collected by USADA is for an athlete to reveal all drugs and supplements they are ingesting. For reference see the 4 minute 15 second mark of the below USADA video.

USADA’s press release make no mention of Spironolactone disclosure until after the positive test came back. Assuming this is the case should the omission be its own violation?

Section 2.5 of the custom tailored UFC/USADA anti doping policy notes that it is a violation to tamper with doping control. Tampering includes “providing fraudulent information to UFC or USADA“.

Failing to disclose the use of a prohibited substance could meet this definition however the key is the word ‘fraudulently‘. Fraud requires intent and this standard provides some legal wiggle room.

The UFC/USADA standard can be contrasted with that of many athletic commissions. As was learned from the Nick Diaz saga, commissions often require drug disclosure to be made under penalty of perjury and omission can be legally fatal.

I have written to USADA for clarification on why (assuming Cyborg failed to disclose the substance at the time of collection) this did not amount to its own violation. Presumably the answer is intent. I will publish their response if/when they reply.

Regarding the second point, the USADA press release does not make it clear what standard Cyborg had to meet to obtain her retroactive TUE. While the test for a TUE itself remains identical whether applied for immediately or retroactively, athletes generally have to meet a further legal test when they fail to apply for one promptly.

USADA’s website publishes the following standards for a retroactive TUE

An application for a TUE will only be considered for retroactive approval where:

a. Emergency treatment or treatment of an acute medical condition was necessary; or

b. Due to other exceptional circumstances, there was insufficient time or opportunity for the Athlete to submit, or for the TUEC to consider, an application for the TUE prior to Sample collection; or

c. It is agreed, by WADA and by the Anti-Doping Organization to whom the application for a retroactive TUE is or would be made, that fairness requires the grant of a retroactive TUE.

Cyborg admitted to using Spironolactone since September 2016 and apparently did not disclose this to USADA until some time after December. Given this it is hard to understand how she meets the above test.

This test is not expressly referenced in the UFC/USADA custom tailored anti-doping policy. I have written to USADA for clarity on whether this or another test applies and will update this article if/when they reply.