With PED test failures recently being pushed into the forefront of UFC news, the timing of this announcement hardly comes as a surprise. The range of responses has encompassed the gamut from skepticism (and downright derision) to applause and support. In some sense, depending on the critic, the UFC was in a no-win situation. Sitting on their hands would only bring increased criticism, while announcing changes would bring cries of hypocrisy, suspicion, and "too little, too late."
While it may or may not be the UFC's responsibility to eradicate PED use in their sport, they do stand to benefit the most by the perception of clean fighters. They are also possibly the only organization with the financial resources to undertake such a large problem (Bellator may as well, but they've been largely silent on the issue).
In an ideal world, the commissions would be able to handle all comprehensive testing. We've seen the problems that can arise when the UFC tries to manage their own program (see Cung Le). That said, for many logistical reasons, the parent organization handling the testing of their own fighters makes much more sense.
So what did the UFC's announcement mean exactly? Starting July 1, the UFC's entire roster will be subject to random, out-of-competition PED testing. They are engaged with numerous global testing organizations to create a random drug testing protocol. The testing will be handled by a third party. The wording here is somewhat ambiguous as to whether one company will be handling all testing, or whether it will be several. Given the practical matter of having one company covering international drug testing, it would seem unlikely that this is the case.
Consistency is going to be the key here. Whichever third parties handle the testing, it's important that it be uniform all around. While the fighters are likely subject to whatever testing provisions the UFC implements due to the UFC Fighter Code of Conduct, it's hard to imagine that there won't be some sort of appeal process. In an effort to avoid another Le-like situation, the UFC has to make sure that adequate protocol is not only developed, but also followed to the letter.
The UFC is also advocating for longer suspensions and harsher penalties issued by commissions, with both two and four year suspensions for first-time PED offenders tossed out there as potential terms. This type of deterrent makes a strong public statement that the UFC is serious about stopping PED abuse in MMA. This is, however, a statement, and not one the UFC can likely enforce on its own. A suggestion to the NAC and other commissions makes the public statement that the UFC wants to be tough on PEDs, and absolves them of responsibility if it does not happen.
UFC fighters are under contract to ply their trade solely with the UFC. If a fighter were to fail a UFC mandated test and be subsequently suspended by the UFC, he or she would be theoretically unable to work. While an employer is generally well within their right to suspend an employee, at will employees can always quit their jobs and go work somewhere else if they're not willing to accept the suspension. Because UFC fighters are under contract to fight only for the UFC, a suspension would result in an inability to work (as a fighter) at all. The fighter can't fight for the UFC because the UFC has suspended them, and the fighter can't fight for anyone else because their contract mandates they solely perform for the UFC.
This is a huge problem in which the UFC might be forced to rescind any suspension, or even more problematic for them, release said fighter from their contract altogether. This is the very reason that the UFC is advocating for the commissions to suspend the fighters for such lengthy time periods, as opposed to just doing it themselves. A suspension by a state athletic commission would prevent a fighter from fighting for any organization while suspended. Because other states and fighting organizations typically respect and enforce another commission's suspension, the UFC's problem is solved as long as the commissions are the ones that are handing out the suspension.
This does raise another very interesting jurisdictional issue: If random UFC fighter fails random, year-round drug test, who is able to suspend them? If the fighter fails and has an upcoming fight scheduled, or is already licensed in a certain state to fight, it might lend some clarity to the issue. But if fighter with no fights scheduled whatsoever fails a test, who has the authority to suspend them? Wanderlei Silva is making a similar jurisdictional argument, stating because he wasn't licensed at the time he fled from his drug test that the Nevada Athletic Commission doesn't have the proper jurisdiction to suspend him.
In this instance, at least Silva had an upcoming fight in Nevada. The situation where random fighter subjected to a random UFC-mandated test who has no fights scheduled whatsoever is even more removed. There's an even stronger argument to say that any athletic commission would have the authority to suspend said fighter. While we may have some clarity when the Silva situation is resolved, there's a lot for the UFC to get done before July 1, and a lot of potential legal challenges that are looming as a result of whatever they institute.
Henderson is right, but it's only to the extent that he's right until a commission says he's wrong. A look at the Nevada Administrative Code (I realize Henderson's last fight was in Colorado, but the majority of states have laws derivative of Nevada's and they tend to be the default authority in the world of MMA) yields some insight as to how Henderson could be violating the rules and/or punished.
NAC 467.7962 Acts constituting fouls. (NRS 467.030) The following acts constitute fouls in a contest or exhibition of mixed martial arts:
32. Applying any foreign substance to the hair, body, clothing or gloves immediately prior to or during a contest or exhibition that could result in an unfair advantage.
While it may be a bit of a stretch that toothpick in mouth results in an unfair advantage for Henderson, the code only says could result in an unfair advantage. An argument with a germ of logic would likely pass the relatively low threshold here.
NAC 467.885 Grounds for disciplinary action. (NRS 467.030) The Commission may suspend or revoke the license of, otherwise discipline or take any combination of such actions against a licensee who has, in the judgment of the Commission:
4. Failed or refused to comply with a valid order of a representative of the Commission; 5. Conducted himself or herself at any time or place in a manner which is deemed by the Commission to reflect discredit to unarmed combat;
According to NAC 467.855.4, the NAC would just have to tell Henderson to stop having a toothpick in his mouth during fights. Continuing to fight with one would subject Henderson to pretty much whatever discipline the NAC saw fit.
In the event they wanted to punish him right away, they could likely refer to NAC 467.885.5 and discipline Henderson for conducting himself in a manner that discredits unarmed combat. Note that the Commission determines what discredits unarmed combat here, so it's not really like they can be wrong, although their ruling would be subject to appeal.
And, as far as Henderson's statement that "It's as dangerous for me to have a toothpick in your mouth as it is to have a 200-pound man punch me in the face hard or try to kick me in the face," he may be right. This is not an apt comparison in the slightest, though, as one of the goals of MMA is punching or kicking your opponent in the face, not choking to death on a toothpick foolishly in your mouth.
Just a couple brief notes on the latest from the developments from the PED mess that has been in the headlines lately. As expected, Silva, Diaz, and Lombard were issued temporary suspensions following their failed tests. This further explains why the NAC asked that Silva be removed from the Ultimate Fighter: Brazil tapings. According to NAC 467.890, "A person who is licensed by the Commission shall not have any dealings related to unarmed combat with any person whose license has been suspended or revoked by the Commission." Additionally, NAC 467.886 states "A person licensed by the Commission shall not engage in any activity that will bring disrepute to unarmed combat, including, but not limited to, associating with any person or entity if such an association brings disrepute to unarmed combat."
Between these two administrative rules, the NAC has plenty of ammunition to request that Silva be removed from the tapings. Likewise, they would have grounds to suspend or deny licenses to any of the fighters on the show if Silva were to continue coaching. While this does again raise the jurisdictional argument for non-licensed fighters being subject to discipline, it's once again an issue we're going to have to find out more about when Wanderlei Silva's suit is heard.
Results of Anderson Silva's fight night drug test indicated Oxazepam and Temazepam in his system. The findings of such also constitute a drug test failure for Silva. While neither of these substances are banned out-of-competition, the NAC requires that ALL substances taken, even those not banned, be disclosed. The simple reason for this is as opposed to making a long list of things that are okay, not okay, and maybe okay, the NAC just made a bright-line rule. If you're taking it, you need to tell them.
Oxazepam and Temazepam are commonly used to combat anxiety and insomnia. These are issues that many people face, and don't raise any red flags on their own, but this is another failing on the part of Silva or his management team. If Silva was taking these drugs, and not telling his management team, he messed up. If Silva's management team knew he was taking them, and didn't advise him to disclose or disclose to the NAC, then they messed up. If Silva had no idea these things were in his system, then that's a colossal screw up on the part of a lot of people.
The UFC will often extend their fighters contracts when they are down to one fight left on their current deal. In some cases, the fighter will "bet on themselves" and let their last fight play out. The thought is that a win will give them more leverage to negotiate a higher pay rate. An exciting win may help even more. Obviously, this move can backfire.
We don't know if Davis' lack of a new deal was due to failed negotiations or the UFC just not offering him a new deal. Along the lines of Jake Shields and Jon Fitch, Davis is just not a very exciting fighter. His striking has not advanced much in the past couple of years, and his strategy for winning involves taking a fighter down and subjecting him to "lay and pray" vs. the much more exciting "ground and pound."
The UFC has matching rights for their free agent fighters. If a promotion like Bellator were to offer Davis a deal and he were to sign it, the UFC has a limited time period to retain Davis' services by matching the deal. Perhaps Davis didn't like what the UFC offered, and the UFC decided to let him see what the market had for him. If so, it signifies that the UFC is content to let Davis solicit offers and match them if they find them reasonable, or just let Davis go if the dollar amount is deemed too high.
Davis was once thought to be a young up and coming fighter who would soon have the physical tools and skills to potentially fight Jon Jones. At this stage of his career, Davis hasn't shown much growth in his skills, and isn't likely to challenge for a title in the UFC's Light Heavyweight division. He's also not going to move the needle or put fans in seats for any of his fights. Because of this, we have an example of the UFC using both their contractual rights and the free market to keep them from overpaying for talent.
Michael Bane is an attorney and MMA enthusiast working out of Chicago, Illinois.
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