PED’s in combat sports are in the spotlight again this week with GSP pointing the finger to the UFC’s lack of support of enhanced PED testing as one reason why he stepped away from the sport. The UFC was quick to deflect criticism noting that MMA fighters are tested by the government and that “we have not only agreed to pay when the commission has said it wants to do enhanced testing, we’ve encouraged it. We have no problem with testing. “.

Appreciating some reliance is placed on Athletic Commissions to weed out cheaters (and leaving aside for the moment the question of promoter and PED user liability), can Commissions be exposed to civil liability if they fail to meaningfully protect athletes with proper PED testing? Depending on the jurisdiction the answer may be yes.

The skeleton of a civil lawsuit in negligence is as follows: The Defendant owes a duty to a Plaintiff, the Defendant fails to meet the standard of care, and lastly this failure causes the Plaintiff damages. When you apply inadequate PED testing to this framework a case for liability can be argued.

A Duty of Care

Athletic commissions exist for participant safety. This relationship creates proximity between commissions and licensed athletes such that a duty of care exists.

To take one jurisdiction as an example, the Ontario Government describes ensuring “maximum safety to participants” as a core function of their Athletics Commissioners responsibilities. Given this core function there is little argument that there is a duty of care owed to participants.

The Standard of Care: Reasonably Effective Testing

What standard does an Athletic Commission need to meet to “ensure maximum safety” with respect to PED’s? In the world of negligence Courts don’t require perfection. Instead they ask that individuals take reasonable steps to meet their standard of care. Most Commissions have the ability to test for PED’s. The reason is to weed out cheaters and to minimize the chance of combatants facing a drug enhanced opponent.

Most commissions do, at least occasionally, use their testing powers. This is where things get interesting. Both the timing and types of tests can then be scrutinized. Commissions with the statutory right to test combatants are generally not limited only to drug tests after a bout. These tests can usually take place at any time during a period of licencing. As the Alistair Overeem experience demonstrated out of competition testing can be a successful tactic.

Appreciating that one goal of PED testing is to “ensure maximum safety to participants” it makes sense to catch PED abusers before a bout takes place, not after when the clean combatant is exposed to the dangers of an uneven playing field.

Next, the type of tests employed by Commissions is worth examining as well. Most commissions elect urine tests as opposed to blood tests. However blood testing is more effective in identifying PED’s as Dr. Benjamin explained to MMAJunkie:

“urine testing is cheaper, less invasive (no needle stick required) and has fewer potential complications…than blood testing.

Blood screening is more sensitive (more likely to detect a banned substance), detects more banned substances, and is more difficult to beat through “masking” methods. Blood screening is the current standard for detecting abnormally elevated levels of synthetic human growth hormone (HGH).”

So blood testing is more effective but costs more. In Canada when governments are sued Courts engage a policy analysis and look to budgetary realities. If something is better but costs more it may be reasonable to choose the cheaper option. When it comes to PED testing this likely does not apply as the costs of PED tests are passed on to the promoter so choosing the cheaper option may not be a reasonable excuse.

Absent a strong explanation for restricting PED tests to post contest urine screening the standard of care is arguably not met.

Damages:

Assuming the first two hurdles are cleared damages must be proven. How can a combatant who suffered injury at the hands of a PED using athlete prove damages were caused by the drugs, not simply being outclassed? While this seems like a complex challenge the legal analysis may be surprisingly simple. Fraud vitiates consent. If a combatant would not have fought knowing their opponent was using PED’s their consent was fraudulently obtained and if reasonable commission testing methods would have revealed the PED use prior to competition damages can be linked to this negligence.

Fraud also can stall the clock on limitation periods which can leave the door open to far reaching litigation. If you want to see a real world example of this look no further than the Reasoned Decision of the USADA on Disqualificaiton and Ineligibility of Lance Armstrong which held as follows with respect to fraud and limitation periods:

A recent American Arbitration Association decision in a

doping case addressed both the general principle that an athlete who fraudulently conceals

doping cannot profit from that fraud by claiming that the statute of limitations has run, and the

specific situation where the panel suspended the statute of limitation because the athlete denied

under oath that he had doped. (USADA v Hellebuyck, AAA Case No. 77 190 168 11, Jan 30,

2012) Similarly, under U.S. law, Armstrong should not be allowed to claim the benefit of a

statute of limitation where his doping has been concealed, and the judicial process subverted, by

his lying under oath and other affirmative actions which precluded the earlier discovery of his

doping by USADA.

Statutory Immunity:

Some Athletic Commissions enjoy statutory immunity from negligence claims but not all do.

Surprisingly the issue of commission negligence has rarely been judicially tested and the legal analysis varies from jurisdiction to jurisdiction. One case where Commission immunity was tested and upheld was Moss v. Pete Suazo Utah Athletic Commission where the Defendant Commission licensed a fighter who lost 26 consecutive bouts, suffered a TKO less than two months prior and was allegedly under medical suspension in neighboring Nevada. The Commission licensed him despite this and he “died in the ring from heart failure“. The Supreme Court of Utah upheld a summary dismissal of the claim finding that the State’s government immunity legislation shielded the Commission from legal action.

Not all jurisdictions enjoy similar government immunity protections. Despite the relatively scarce judicial comments on this topic, one need look no further than the Government of Ontario’s Factor Report (CSC 075) providing the official duties of their athletic commissioner. The document acknowledges that “failure to properly administrate events could result in serious injury or death to a participant which could lead to a sizable liability suit” not to mention “strict, high profile negative attention from the media“.

The PED situation in combat sports is complicated and if the perfect storm ever forms litigators will set their targets far and wide. This will include scrutiny of Commission standards.