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By Zach Arnold | March 28, 2016

… is USADA drug testing as effective at catching cheaters as Nevada’s out-of-competition drug testing policy?

Answer: Yes and no.

If you follow MMA betting wizard Luca Fury on Twitter, you know that the game has changed for real since the implementation of USADA’s drug testing program. Since the implementation of USADA testing, it is now smarter and more profitable to side with the underdogs than the favorites. You used to hit on an occasional 3-to-1 underdog here and there but now your chances of making money simply with underdogs is greater than ever before. It’s not a coincidence. When you have a sport with doping problems comparable to horse racing, any threat of out-of-competition drug testing immediately creates more randomness for success in a sport that was already way more random and harder to predict than other sports to bet on.

And yet, Larry Pepe on Pro MMA Radio recently made an extremely compelling argument about how much USADA’s drug testing program is more or less about public relations first rather than a drug testing program with actual teeth. The “more bark than bite” argument.

If you support USADA’s UFC drug testing efforts, you simply can point out the obvious. Given that MMA fighters make less money than athletes in other sports, they’re not as likely to get the high-end designer performance-enhancing drugs. And if there’s anything history has taught us over the last 15 years, especially during the Testosterone Replacement Therapy era, it’s that MMA fighters are notoriously sloppy at cheating. They’re just not as good at it as their athletic counterparts in other major sports.

USADA’s UFC drug testing program may be working but the underlying fundamental doping problems in MMA still flagrantly exist

The mere threat of: 1) out-of-competition drug testing combined with 2) harsher suspensions is having a real impact, not only on the increased randomness of fight results in UFC but also on physical appearances of certain fighters and their ability to not recover as quickly from injury.

That doesn’t mean, however, that USADA’s current drug testing program in the UFC is as impactful as it should be. This is the persuasive argument that Larry Pepe made on his 50-minute radio show yesterday.

Larry’s argument is this: In the last six months of 2015, USADA oversaw 353 drug tests. Of those 353 drug tests, 213 were in-competition and 140 were out-of-competition. The in-competition drug tests cover an approximate 36-hour time period from weigh-ins to fight night. Most athletic competitions do standard pre-fight and post-fight drug testing as well.

Are the in-competition drug tests administered by USADA any more effective at catching doping than the current standard in-competition far we see from athletic commissions? Only 140 out-of-competition USADA drug tests in six months. That’s less than 25 tests a month. The UFC roster has hundreds of fighters.

Larry’s argument is that the whole point of a third-party drug testing program was to focus on out-of-competition drug testing. If only 40% of your current testing program deals with out-of-competition drug testing, what’s the point? If only 5 UFC fighters have gotten caught so far, now we know why.

Larry argues that the hybrid out-of-competition drug testing we saw from Nevada’s state athletic commission in which UFC paid the bill was actually just as impactful, if not more so. Remember the “enhanced” drug testing implemented after the Testosterone hall pass era?

First conclusion: Even if you believe that USADA’s current drug testing program in the UFC is impactful and changing the game, Larry is making the prospective argument that fighters & gyms are going to start looking at the hard data of USADA’s out-of-competition drug testing and realize that it’s not as toothy as it’s been marketed. Either USADA decreases in-competition drug testing and focuses on the long game or else the athletes are going to adjust to the system and be one step of ahead.

In 2016, USADA claims to have administered 430 drug tests. If you use a 40% ratio for out-of-competition drug testing, that means 170 out-of-competition drug tests so far. That would signify a bump up from 2015 OOC testing numbers but still a far cry from what athletes were led to believe.

783 USADA UFC drug tests… over the span of 9 months… and 5 fighters have gotten caught. A success rate of 0.006%. Barely half of 1%.

Addendum: Excellent reader comment here says throw out the first three months of six month 2015 period due to information gathering of fighter addresses. The comment also has a Google Docs spreadsheet and suggests the OOC testing rate is higher than 40%.

What about the state athletic commissions?

Larry Pepe argues that state athletic commission “enhanced” drug testing is just as good at catching doping as USADA’s currently program is. Perhaps one could make a plausible argument about Nevada’s commission in catching cheaters, but it’s hard to argue other major commissions have that ability. Right?

He pointed out two major test failures recently in Texas — Texas! — for Kimbo Slice & Ken Shamrock. Of course, they got caught allegedly & sloppily cheating. And those guys knew they were going to be drug tested!

In other words, the real impact on the USADA UFC drug testing program is not the actual testing itself. It’s the marketing and hype of the possibility of out-of-competition drug testing rather than the actual testing results itself. Larry’s arguing that the athletes & gyms will start to cut through the spin and find ways to beat USADA because of the 40% ratio of out-of-competition drug testing, no matter how invasive the policy itself is for 24/7 athlete availability. Mind games.

What about the gyms and the journalists?

In presenting his argument that USADA is more marketing and less substance, Larry Pepe asked why there hasn’t been harsh scrutiny on specific gyms where a higher percentage of fighters are getting busted for doping than other fighters from other gyms. He specificly pointed the finger at American Top Team and Black House. Larry’s argument is that “gym culture breeds more (drug) use.”

Kimbo Slice, Yoel Romero, Gleison Tibau, Hector Lombard (pre-USADA), King Mo, Bigfoot Silva, etc.

Brian Ortega, Kevin Casey, Anderson Silva.

“To not raise the issue is irresponsible from a journalistic standpoint. … Journalists have to raise the questions when patterns emerge.”

Let’s address the two elephants in the room as to why journalists are gun-shy about targeting gyms: 1) news access and 2) lawsuits. The first is self-explanatory. The second is partially self-explanatory but should be fleshed out as a chance to educate you as to why it’s… challenging… to write about Florida residents.

Florida has the most plaintiff-friendly libel & slander laws in America. The Hulk Hogan trial against Gawker highlighted this for the public-at-large but you didn’t need Hulk Hogan to prove that speech & public participation is not necessarily protected in Florida like it is in California, Oregon, Nevada, or Texas.

Hulk Hogan sued Gawker in Florida state court, not Federal court for invasion of privacy. Normally, this goes against all traditional legal boundaries. If you sue someone from out-of-state and the damages are more than $75,000 — you file in Federal court. Speech and public participation is afforded certain protections established by case law on the Federal level. Florida state laws don’t afford such protection.

So how does someone get around suing an out-of-state defendant in Federal court? Take advantage of Florida’s long-arm statute. In 2010, the Florida State Supreme Court interpreted their 70s-era long arm statute to apply to the Internet as well, thus (largely) nuking an important affirmative defense: lack of minimum contacts. To sue on the state level in Florida, a Florida resident can sue another Florida resident for libel or slander but that lawsuit has to be filed in the county where the defendant published the remarks. If a Florida resident sues someone from out-of-state, they have to argue that the defendant has some sort of contact with the state of Florida — property, sources, something tangible.

That changed in 2010 with the Florida State Supreme Court. FSSC established case law stating that it’s up to the state Legislature to modify the state’s long-arm statute regarding material published on the Internet. Otherwise, anything published on the Internet that can be read by one Florida resident establishes minimum contacts with the state. This is why Hulk Hogan sued Gawker in Florida state court. The home field advantage in state court versus Federal court was incredibly chilling. A jury of six people in Florida, as opposed to California which has an anti-SLAPP statute and trials requiring 9 out of 12 jurors to find a defendant liable.

Once Gawker attacks the state court verdict in appeals on the Federal level, where they have had way more success in the courts, the ball game changes. The problem is that appealing the state court ruling required them to put up at least $50 million dollars in bond just to put up a fight. If a company like Gawker is near financial death from a Florida state trial, how on earth do you think a combat sports writer is going to amount any sort of fight? They can’t. Just because a significant amount of writers are judgment proof does not mean that they want a (largely) non-dischargeable debt that would require a bankruptcy filing in Federal court. Most writers aren’t going to be able to cough up the cash to hire a speech attorney like Marc Randazza on retainer to fight for them in Florida.

The net result is that journalists shut up on controversial matters, especially if the investigation deals with someone in Florida. On a macro-level, most analysts looking at the Hogan/Gawker case view Hogan’s win as a narrow one on the issue of invasion of privacy. The larger, much more critical issue at play is that Hogan & his legal team exposed to the world how to go after out-of-state defendants by abusing Florida’s long-arm statute in state, not Federal court.

This is how you silence the press. There isn’t significant money to be made in the combat sports journalism game unless you work for a promoter or television outlet. Without money and attorneys, writers are simply not going to freely speak their mind about controversial subjects involving Florida residents without fear of bankruptcy. A large chunk of the MMA community has ties to Florida. Put two and two together.

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