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« | Home | »

Rafael Feijao: California State Athletic Commission inspector re-used a collection cup for my drug test

By Zach Arnold | October 6, 2012

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Ronald Reagan State Building – Auditorium
300 South Spring Street
Los Angeles, CA 90013

The California State Athletic Commission has a meeting scheduled for Monday at 9 AM in Los Angeles. I suppose the 9 AM start time is to keep interlopers away but that won’t work. There are some big happenings scheduled for the meeting. Although it’s not listed on the agenda, you can be assured that the Department of Consumer Affairs will have to hear about the mess they’ve created by backing deadbeat promoters who stiffed fighters out of cash at a canceled show in Oxnard.

Ed Soares, famous for being Anderson Silva’s mouthpiece of a manager, is applying for a promoter’s license at the meeting. What should be a smooth transaction for Ed could turn out to be very interesting because he will also be involved in another matter at the meeting — Rafael Feijao’s appeal of his positive drug test result for stanozolol.

CSAC, at the last minute, did a 130-page document dump of meeting materials for Monday’s session. There’s a lot of interesting items in the document, including CSAC’s budget affairs and an update on the boxer’s pension fund ($5.3 million dollars in the bank). Curiously enough, they never give out any sort of information regarding the neurological fund. The Neuro fund has become a political hot potato since promoters still have to pay taxes into the slush fund but nobody knows much information (publicly) about the actual bank account and who is managing it.

On page 100 of the document, there is a 7-page letter from Rafael Feijao’s doping attorney, Howard Jacobs, detailing his client’s upcoming appeal hearing on Monday. What the letter alleges is surprising but not entirely shocking given the drug testing follies for CSAC.

Here’s the text of the appeal letter written by Howard Jacobs:

RAFAEL CUSTODIO’S PRE-HEARING BRIEF AND EXHIBITS

I. INTRODUCTION

This matter arises from a report to a positive drug test for “stanozolol metabolites.” Rafael Custodio denies using any prohibited substances, and specifically denies using stanozolol or any other substance that could have caused this test result.

The CSAC and the UCLA Olympic Analytical Laboratory have reported that the sample at issue – CSAC 2639919/UCLA YID108 – was collected on May 18, 2012, at 5:26 pm. However, this is incorrect: the sample was actually collected on May 19, 2012, at approximately 4:00 p.m. The laboratory documentation does not mention anywhere that the sample was actually collected on May 19, 2012. Simply stated, there is a fatal defect in the chain of custody, such that the laboratory documents themselves cannot be relied upon.

Furthermore, the fatal chain of custody defect cannot be characterized as a technical or a paperwork violation. That is because the doping control officer started the sample collection process on May 18, 2012, and after determining that there was an insufficient volume of urine, directed that Mr. Custodio come back on May 19, 2012 to provide his urine sample. Rather than starting the sample collection over on May 19, 2012, the collector inexplicably poured out the urine collected on May 18, and used the same collection cup on May 19. While this may explain why the chain of custody documentation incorrectly states that the sample was collected on May 18, it also means that the collection cup used for the May 19 sample, which was the same cup used for the May 18 partial sample, was open and subject to possible tampering or contamination for a period of almost 24 hours. This means that the stanozolol metabolites that appeared in sample CSAC 2639919/UCLA YID108 could have come from anywhere.

The whole point of having a strict sample collection protocol, and using unused and previously unopened collection containers, is so that the possibility of tampering or contamination cannot be excluded. When a proper collection protocol is not followed, the test results are meaningless, because it cannot be established that the prohibited substance came from the fighter’s urine as opposed to coming from some external source. In this case, the sample collection process was so flawed, that the CSAC cannot establish that the stanozolol metabolites came from Rafael Custodio’s urine as opposed to coming from some other source. Therefore, the test results must be considered as invalid, and the fighter cannot be suspended or fined.

II. BURDEN OF PROOF

As previously stated by the California Attorney General, the burden of proof in a doping case brought by the CSAC is the “preponderance of the evidence” standard. This standard is defined by the California Jury Instructions applicable to civil proceedings as follows: “Preponderance of the evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”

In meeting its burden of proof, it is submitted that the CSAC must establish (1) a valid chain of custody; (2) that the urine sample could not have been tampered with; and (3) that the laboratory found a prohibited substance in the urine sample. Each of these three requirements is equally important, and the failure to prove any of these 3 elements must mean that the CSAC has failed to meet its burden of proof. Therefore, while Mr. Custodio does not contest that sample CSAC 2639919/UCLA YID108 contained “stanozolol metabolites,” this can only results in a fine and/or suspension if the CSAC can establish that the stanozolol metabolites in sample CSAC 2639919/UCLA YID108 could only have come from Mr. Custodio’s urine, as opposed to coming from some other source. This is the whole point of chain of custody, and in this context, it is easily understandable why chain of custody is so important.

(later on in the letter…)

III. THERE IS A FATAL DEFECT IN THE CHAIN OF CUSTODY, SUCH THAT THE CSAC CANNOT ESTABLISH THAT THE PROHIBITED SUBSTANCE CAME FROM RAFAEL CUSTODIO’S URINE

(later on in the letter…)

Failure to follow proper collection and chain of custody protocol has in other sports led to the dismissal of doping allegations. See, e.g., “Ryan Braun cleared, chain of custody is decisive” [attached as Exhibit 5].

Here, the collection protocol and the chain of custody is fatally flawed, in at least the following respects:

1. The collector disposed of the May 18, 2012 partial urine sample provided by Mr. Custodio, and then kept the open collection container to be reused on May 19, 2012;

2. The open collection container was subject to possible tampering and/or contamination for almost 24 hours before the actual sample that was tested was collected on May 19, 2012

3. The collector re-used an open collection container to collect Mr. Custodio’s May 19, 2012 urine sample, allowing for possible tampering and/or contamination in violation of sound collection procedures;

4. The chain of custody documentation for sample CSAC 2639919/UCLA YID108 incorrectly states that the sample was collected on May, 19, 2012;

5. The chain of custody documentation provides no information regarding the location of the open collection container between May 18, 2012 and May 19, 2012; and

6. The chain of custody documentation fails to reflect anywhere that sample CSAC 2639919/UCLA YID108 was collected on May 19, 2012.

Furthermore, the collection protocol and the chain of custody violates the WADA International Standard for Testing [attached as Exhibit 6], in at least the following respects:

“6.3.4 The ADO shall only use Sample Collection Equipment systems which, at a minimum, meet the following criteria. They shall … d) Ensure that all equipment is clean and sealed prior to use by the Athlete.”

Annex F – Urine Samples – Insufficient Volume

F.4.1 If the Sample collected is of insufficient volume, the DCO shall inform the Athlete that a further Sample shall be collected to meet the Suitable Volume of Urine for Analysis requirements.

F.4.2 The DCO shall instruct the Athlete to select partial Sample Collection Equipment in accordance with Clause D.4.4.

F.4.3 The DCO shall then instruct the Athlete to open the relevant equipment, pour the insufficient Sample into the container and seal it as directed by the DCO. The DCO shall check, in full view of the Athlete, that the container has been properly sealed.

F.4.4 The DCO and the Athlete shall check that the equipment code number and the volume and identity of the insufficient Sample are recorded accurately by the DCO. Either the Athlete or the DCO shall retain control of the sealed partial Sample.

F.4.5 While waiting to provide an additional Sample, the Athlete shall remain under continuous observation and be given the opportunity to hydrate.

F.4.6 When the Athlete is able to provide an additional Sample, the procedures for collection of the Sample shall be repeated as prescribed in Annex D — Collection of urine Samples until a sufficient volume of urine will be provided by combining the initial and additional Sample/s.

F.4.7 When the DCO is satisfied that the requirements for Suitable Volume of Urine for Analysis have been met, the DCO and Athlete shall check the integrity of the seal(s) on the partial Sample container(s) containing the previously provided insufficient Sample(s). Any irregularity with the integrity of the seal/s will be recorded by the DCO and investigated according to Annex A — Investigating a Possible Failure to Comply.

F.4.8 The DCO shall then direct the Athlete to break the seal/s and combine the Samples, ensuring that additional Samples are added sequentially to the first entire Sample collected until, as a minimum, the requirement for Suitable Volume of Urine for Analysis is met.”

The CSAC cannot establish that the prohibited substance found in sample CSAC 2639919/UCLA YID108 came from Mr. Custodio’s urine, as opposed to coming from some other source that introduced to the collection container (through contamination or tampering) during the 24 hour period that the collection container was open and unsealed (between May 18 and May 19). The documentation is utterly devoid of any mention of the actual collection date of May 19, 2012, and incorrectly states that the sample was collected the prior day. The documentation is also utterly devoid of any record of where or how the open and unsealed collection container was kept or stored between May 18 and May 19. For any and all of these reasons, the doping allegations must be dismissed, and it is submitted that Mr. Custodio cannot be suspended or fined.

IV. CONCLUSION

For all the foregoing reasons, it is submitted that the CSAC cannot meet its burden of proving, by a preponderance of the evidence, that the positive test was caused by the use of a banned substance. Therefore, it is submitted that the sanction and fine imposed on Mr. Custodio must be eliminated.

V. DESIGNATION OF WITNESSES

Rafael Custodio will testify regarding his background and experience as a mixed martial arts fight; his drug testing history; the circumstances surrounding the collection of his urine sample(s) on May 18, 2012 and May 19, 2012; and the fact that he has not used any prohibited substances.

Ed Soares will testify regarding the circumstances surrounding the collection of Rafael Custodio’s urine sample(s) on May 18, 2012 and May 19, 2012.

Paul Scott will testify regarding his attendance at the “B” sample testing, and the issue of chain of custody.

Rafael Custodio reserves the right to call additional witnesses during the Commission hearing on October 8, 2012.

Respectfully submitted,

Law offices of Howard L. Jacobs

Topics: CSAC, MMA, Media, StrikeForce, Zach Arnold | 29 Comments » | Permalink | Trackback |

29 Responses to “Rafael Feijao: California State Athletic Commission inspector re-used a collection cup for my drug test”

  1. RST says:

    “CSAC, at the last minute, did a 130-page document dump of meeting materials for Monday’s session.”

    Yup.
    california is as california does.

    I think the only thing keeping this place running at this point is manipulating the playing field, obscuring the goal posts and cooking the books any way they can.

  2. Steve4192 says:

    Two fighters ….. one cup

  3. Tomer says:

    Did the attorney forget to mention that that the NC should be reversed as well (since there is no basis for the NC if technically there is no proof of doping)?

  4. 45 Huddle says:

    I wouldnt be shocked if they reused a cup. But the fighter should be out of luck unless he has some crazy amount of proof.

    I would assume they knew about it when it happened. Which means the time to bring up the problem was the day of the testing and not months later.

    • Tomer says:

      “I wouldnt be shocked if they reused a cup. But the fighter should be out of luck unless he has some crazy amount of proof.”

      Nah, the burden of proof (preponderance of the evidence) is on the accuser (the CSAC), not the defense, so it’s actually up to the CSAC and if the defense can destroy the proof offered, the CSAC has to offer alternative proof or retract their claim.

      • 45 Huddle says:

        He pissed hot. Right there he is behind the eight ball. How will he ever prove he pissed into a dirty cup? There is almost no way to prove it. Which is why I said if he had a problem it should have been brought up at the time of the sample being taken.

        Besides you do realize he has already been found guilty. This is a sentencing hearing for him coming up unless he pulls something epic iut of his behind.

        • Tomer says:

          “He pissed hot. Right there he is behind the eight ball. How will he ever prove he pissed into a dirty cup? There is almost no way to prove it.”

          He doesn’t have to prove it since the CSAC specifies in their regulations the chain of custody and the standard is that if you fail to maintain the proper chain of custody, the piss test is void for legal purposes due to the legal concept of tainted evidence. All Feijao’s attorney has to do is prove that the chain of custody was broken and that evidence becomes inadmissible, therefore requiring the CSAC to either provide alternative evidence.

          “Besides you do realize he has already been found guilty.”

          He was unilaterally thrown a penalty, he did not have a formal administrative appeal hearing to challenge said sanctions – he was not ‘found guilty/liable’ as in a criminal or civil process since it automatically led to the NC/fine since there was no proper trial process (this is effectively the first step of a legal trial-type process), just like being given a fine ticket/summons is not an automatic guilty unless you either plead guilty and pay the ticket or contest the summons in court.

          I’m not really sure where you’re coming up with your odd beliefs of the US legal system because what you’re detailing sounds more like the East Asian (China and Japan, mainly) system than any US legal system I’ve ever heard of.

        • The Gaijin says:

          If you can’t prove chain of custody and the proper handling and testing of evidence then everything is out the window.

        • 45 Huddle says:

          They state that the inspector poured out urine and used i the next day.

          Either they say it happen didn’t protest it at the time…. Or they have no proof of it.

          Either way they are screwed.

          It’s like buying a piece of furniture, signing that everything is okay, and then two months later claiming their was a stain on it that came from the company.

          If you didn’t protest it at the time, you are out of luck.

        • Tomer says:

          “They state that the inspector poured out urine and used i the next day.

          Either they say it happen didn’t protest it at the time…. Or they have no proof of it.

          Either way they are screwed.”

          Yeah, you’re wrong. As long as they file the appeal/complaint against the charge of pissing hot before the deadline, it’s perfectly fine to wait. The onus isn’t on them to have complain about fuck-ups in the testing process, the onus is CSAC to not fuck-up in the first place, a nuance you seem to be ignoring for some reason.

          “It’s like buying a piece of furniture, signing that everything is okay, and then two months later claiming their was a stain on it that came from the company.”

          Yeah, it’s not a good analogy at all – the proper analogy is being given a speeding ticket and not contesting it until the court date.

          “If you didn’t protest it at the time, you are out of luck.”

          You’re wrong and it would be nice if you did some legal research into the topic before posting about it going forward.

  5. Zheroen says:

    If there’s suspicion that the only “smoking gun” was in fact inadvertently (or incompetently, as the case may be) placed at the scene by the investigators, then that would throw the entire prosecution case out the window. It’s not the fault of the accused that those making the accusations screwed up.

    Ever heard of due process? How are you this fucking dense, 45?

    • Zach Arnold says:

      I don’t think he’s dense. I think he understands the point you’re making. What he’s doing is taking the contrarian point of view, which is to say – Feijao claims the drug testing process was screwed up due to alleged incompetence and he claims he knows this by seeing that the cup was re-used. If he knew it was being re-used and didn’t speak up about it, then it was a potential license to cheat because even if he got caught the excuse was built-in to try to nullify the test result on appeal.

      In a sense, 45 is taking the cynical (yet a plausible) view here. I’m with you in terms of CSAC incompetence (how many times have I gotten trashed for covering Sacramento so much on this site?), but I totally understand where he’s coming from here.

      • Tomer says:

        “but I totally understand where he’s coming from here.”

        I don’t. Fruit of the poisonous tree is still fruit of the poisonous tree: if you screw up the collection of evidence in a murder or rape trial, it gets thrown out because it’s been tainted. The same thing is being claimed here, so unless he’s arguing that there shouldn’t be any fruit of the poisonous tree standard (which would be… interesting, to say the least) his argument is simply inane.

        To add on a bit more to my response, one would not reasonably expect someone accused of murder or rape to either advise detectives and DAs of potential screw ups in their evidence gathering process even if they knowingly committed the crime since the burden of proof is on said detectives and DAs and so if there is an evidence collection mess-up, it reflects on them and not the defendant, which is why such evidence gets struck down in court. It’s just silly to be arguing “Too bad!” when the prosecution (in this case CSAC) botches an investigation by trying to grant them some sort of exemption from the fruit of the poisonous tree standard because people can abuse it.

        Once again, the onus was on the CSAC and even if Feijao did actually use PEDs (which is not guaranteed despite 45 Huddle’s assertions given the apparent tainted nature of the evidence), the overturning of his suspension/NC/fine would still be warranted because the CSAC inspectors and staff, like detectives and DAs, have a certain legal obligation they are supposed to maintain in order to grant legal force to the commission with their suspensions and therefore fruit of the poisonous tree applies, which means “Too bad” to Feijao getting to possibly walk away from his suspension/NC/fine even if he was guilty as sin. They abrogated their duties, they pay the piper, simple as that.

        • 45 Huddle says:

          The onus is not on the AC to prove the cup with clean after the fighter went 3 months without telling anybody about it.

        • Tomer says:

          Actually, it is the CSAC’s onus to prove that they followed the proper chain of custody and if they can’t, then it will be deemed inadmissible which means they can’t use it against Feijao. Hope that helps.

        • 45 Huddle says:

          That is just wrong.

          When you get a speeding ticket is there anyway for you to prove that the radar gun got the wrong car? The police officer could have messed up but without any proof the word of the police officer is taken at greater value then the person who got the ticket.

          It is just the way the system works. If it didnt then nobody would ever be guilty of soeeding unless they video taped every single step of the process.

          The same principles happen here. The assumption is that the chain of command is correct. That is the default. It is going to be next to impossible to disprove that.

          Look a bunch if people took Nick Diaz’s side recently and gave me grief for saying he would still be suspended. I was right then adn I am right in this case too. You people always try and find some silly way to stick it to the AC’s and it basically never happens. The house almost always wins.

        • Chromium says:

          45 Huddle, just stop.
          When you get a speeding ticket is there anyway for you to prove that the radar gun got the wrong car? The police officer could have messed up but without any proof the word of the police officer is taken at greater value then the person who got the ticket.
          The equivalent to a tainted cup would be a miscalibrated radar gun. Usually evidence of either would be neatly covered up, but in the rare event that such a thing comes to light (like today), the charge goes right out the window. It’s actually incredible that an error of such magnitude managed to come to light but somehow it did. Not using a fresh cup for a urine sample is beyond incompetent.

          Look a bunch if people took Nick Diaz’s side recently and gave me grief for saying he would still be suspended.
          Nick Diaz was challenging the validity of the statute itself, as well as its enforceability. It was a creative maneuver and much better than simply relying on the B-sample, but his lawyer was trying to set a new legal precedent. That is completely different from tainted evidence, which if they can prove (and it appears to have already been proven), this is pretty open and shut. Feijao should be exonerated here.

          It is just the way the system works
          You clearly have no idea how the system works.

        • Tomer says:

          “That is just wrong.”

          If you say so, champ.

          “When you get a speeding ticket is there anyway for you to prove that the radar gun got the wrong car?”

          Sort of – you can prove that the radar gun was defective at the time used. I have a friend that went 3-0 versus the local police department because they failed to recalibrate their radar gun which meant that the evidence collected (that is, the speed measures) was inaccurate and therefore the magistrate had to toss out the evidence all three times as unreliable, which subsequently meant that the tickets were thrown out as the officer had no other evidence.

          “The police officer could have messed up but without any proof the word of the police officer is taken at greater value then the person who got the ticket.”

          Not in speeding since the officer can’t measure speeds (which are based on fixed limits), only violations of the traffic code (such as cutting lanes, etc) which they can rely on eye witnessing (which is typically backed up by camera footage anyway).

          “It is just the way the system works. If it didnt then nobody would ever be guilty of soeeding unless they video taped every single step of the process.”

          That’s how most traffic stops are run on, actually (filmed footage of the alleged crime and the subsequent stop)? Only speeding tickets can’t rely on the camera (as previously mentioned).

          “The same principles happen here. The assumption is that the chain of command is correct. That is the default. It is going to be next to impossible to disprove that.”

          No, the CSAC has to provide paper documentation of the chain of custody of the piss cup – if they fail to provide valid documentation showing it upon demand (such as in a legal hearing), they are screwed. Period. If they fail to maintain proper custody of the piss cup, the evidence becomes tainted like that screwed up radar gun and it will get tossed out even if the hearing chooses not to throw it out (as a proper administrative court judge will toss it out as a matter of law).

          “Look a bunch if people took Nick Diaz’s side recently and gave me grief for saying he would still be suspended. I was right then adn I am right in this case too. You people always try and find some silly way to stick it to the AC’s and it basically never happens. The house almost always wins.”

          You do realize that Diaz is still appealing his finding through the legal system and that the book on that case isn’t closed yet, right? The same thing might happen here and it wouldn’t prove anything beyond a commission covering its own ass (just most state and local agencies – I’ve worked for some and they tend do that unanimously). It’s when you get to administrative and higher courts that most of those screwed up decisions get overturned by judges, so I’m not seeing what you’re blabbing about.

    • 45 Huddle says:

      I fully believe th CSAC is a combination of corrupt and incompetent. And I actually believe they did re-use a cup. And I actually think he would have pissed hot anyways. He has always come across as a roider.

      I just think it is f#cking stupid for a fighter to see it happen and not speak up at the time. Because a few months after the fact gives him no legs to stand on.

      • Tomer says:

        “I just think it is f#cking stupid for a fighter to see it happen and not speak up at the time.”

        Why? It’s not up to Feijao to be in the stead of Che Guevara or the other senior management at the CSAC – it’s the CSAC’s duty on not shitting the bed when it comes to following proper procedure since that’s on the regulator’s end, not the fighter’s end. All Feijao has to do is raise a challenge, force them to provide proof that the sample met the chain of custody requirements and wasn’t sitting out exposed for the time allocated and they’re in the clear. If not, their case is screwed since the evidence is tainted and Feijao gets to walk from, regardless of whether or not he actually did use PEDs.

        “Because a few months after the fact gives him no legs to stand on.”

        It does, because the CSAC has to prove they followed the chain of custody at any point when challenged. Not sure where you’re getting this idea from…

        I wanted to also ask you to also provide proof to your claim that:

        “And I actually think he would have pissed hot anyways. He has always come across as a roider.”

        Since you’re making a positive assertion. Thanks.

        • 45 Huddle says:

          I have eyes. Just like anybody without blinders on could see Thiago Silva was roided up. Or Chael Sonnen had additional back acne. It is obvious he is on stuff based on his look.

          But that is my opinion. That varies greatly from what the AC’s do.

          You are still missing a previous point I made. This isnt a court of law. This is a sentencing hearing. The onus is never on the AC’s in these things.

        • Tomer says:

          “You are still missing a previous point I made. This isnt a court of law. This is a sentencing hearing. The onus is never on the AC’s in these things.”

          Actually, it legally is an administrative court of a state agency. So, yes, it actually is on the CSAC’s shoulders to provide proof that the advanced penalty is warranted and, should said proof get shot down, the CSAC’s attorneys would have to provide alternate proof or back off their claim.

        • Chromium says:

          Onus for what? I don’t think you realize what a “preponderance of evidence” is. It’s a threshold used all the time in civil courts. Normally that would mean that Cavalcante would have to come up with a case for his innocence that surpasses the CSAC’s testing procedure, which would be incredibly difficult. However, if it’s true that they threw out the first urine sample and then used the same cup again 24 hours later, then the CSAC botched the testing according to their own guidelines, and the testing should be wholly inadmissible here. Meaning that Feijao technically failed nothing and the CSAC has no case at all. The preponderance of evidence now is to prove that the CSAC’s test did not follow their own collection protocol and that is strongly apparent.

        • Tomer says:

          “Onus for what? I don’t think you realize what a “preponderance of evidence” is.”

          Actually, I do, and your explanation isn’t exactly correct. The CSAC (and the DCA/State of California by extension), as the plantiff agency in the administrative sanctioning case against Feijao have the legal onus of providing proof up to a particular legal threshold (in this case, the preponderance of the evidence) supporting their legal authority through the administrative law system (which gives them their enforcement powers to begin) to act against Feijao.

          One of the major pieces of evidence in this particular case is the piss cup, so if Feijao has documentary proof showing the chain of custody was botched, the original evidence becomes legally inadmissible which means that even if the CSAC decides not to chuck the evidence or otherwise provide alternative proof to keep their original judgment sticking, an administrative judge higher up in the legal chain is more-than-likely to throw it out (this is usually the case with state and local agencies since they aren’t fans of admitting screw-ups themselves).

        • Chromium says:

          @Tomer: Thank you for the clarification on the matter. My comment was specifically directed at Huddle 45 btw.

        • Tomer says:

          Chromium: No problem – sorry if I came off a bit snippy.

  6. Zach Arnold says:

    http://www.dca.ca.gov/publications/multimedia/webcast_schedule.shtml

    The 9 AM CSAC hearing from Los Angeles will be streamed live online. Good times.

  7. [...] to the appeal on Monday, which included a seven-page report by Feijao’s lawyer Howard Jacobs. You can read the whole thing over at FightOpinion. In a nutshell, Jacobs challenged the chain of custody due to the sample being collected the day [...]

  8. [...] Opinion has excellent coverage of the controversy surrounding Feijao’s drug test as well as all of the fiascos surrounding the embattled [...]

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