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The proposed legal argument against California’s 3-year drug suspension of Alexander Shlemenko

By Zach Arnold | June 25, 2015

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It’s entirely possible that Alexander Shlemenko is guilty as sin for failing a California State Athletic Commission drug test with a 50-to-1 Testosterone-to-Epitestosterone ratio. And it is possible that the three year suspension levied against Shlemenko by the Athletic Commission board will get reduced by a state judge when Shlemenko’s attorney, Howard Jacobs, files a writ of mandate seeking an appeal of what happened on Tuesday in Los Angeles.

Starting at the 1 hour and 20 minute time mark in the embedded video, you can witness a two-hour long hearing regarding the suspension of Alexander Shlemenko.

“There is no room for discretion and leniency when it comes to a legitimate violation of the drug policy,” exclaimed CSAC Chairman John Carvelli. He and other members of the Athletic Commission were in no mood for excuses. And they overtly demonstrated how pissed they were at the legal arguments that Howard Jacobs made in defense of his client.

Jacobs surgically defended his client in the only way he possibly could — he attacked the process. He didn’t attack the science.

Understanding what a CSAC appeals hearing is and isn’t

In California, boards & agencies have the option of either running their own disciplinary hearings or outsourcing it to Administrative Law judges who oversee such matters. No matter what you call it, it is a legal tribunal.

If a licensee loses a hearing in front of an Administrative Law judge or in front of a board/agency panel, they have the right to appeal any decisions by petitioning a state court for what’s called a writ of mandate. Asking a judge to make a government employee and/or entity follow the law. This is not about the evidence.

In Alexander Shlemenko’s case, his attorney Howard Jacobs has an interesting case regarding a writ of mandate on behalf of his client to challenge the three year drug suspension.

First, there’s the argument of disparate treatment. Shlemenko got the book thrown at him for four separate violations. I’ve never seen this Athletic Commission ever do that before and stack each punishment on top of each other. Compared to other fighters suspended for similar violations, the punishment can be argued as unreasonable.

Second, there is a major argument to be made regarding due process. Jacobs argued on Tuesday that he and his client had only been notified of the State pursuing a three year suspension 5 days before the Athletic Commission meeting. Jacobs stated that the State did not lay this out in their notice of violations and that it was not laid out in a proper format.

Third, Jacobs exposed the Athletic Commission for collecting only an A sample for drug testing as opposed to A & B samples which previous clients of his gave when they were drug tested. Jacobs stated that this was in violation of a contract that the California State Athletic Commission signed with the UCLA anti-doping lab in which UCLA would analyze samples given to them by CSAC as long as the collection process allegedly followed Federal guidelines. UCLA’s lab doctor argued that since CSAC isn’t a signatory to WADA that they are not legally bound to collect A & B samples for drug testing.

This is a critical argument for Jacobs to make in court when he files for a writ of mandate. If he presents a copy of that UCLA/CSAC contract in front of a judge, the State is going to be backed in a corner when asked why they are not following allegedly established practice in the past when fighters had both A & B samples collected for testing.

The State argued that Shlemenko should be suspended for violating Rule 303 regarding PEDs based on the theory of strict liability, which is that a violation is a violation no matter what the extenuating circumstances are. State brought up the Antonio Margarito hearing from 2009 regarding his illegal hand-wraps and how he was suspended based on the issue of strict liability regardless as to whether or not he did or did not know illegal substances were used on hand-wraps that his trainer wrapped.

Jacobs argued that if you’re going to apply strict liability to violating Rule 303, you have to apply strict liability against the State for violating their contract with the UCLA lab in not collecting a B sample on the drug test.

When asked to discuss why the Athletic Commission inspectors are not currently collecting A & B samples, Andy Foster said the split samples are not collected due to practical reasons. He argued that Rule 303 explicitly states that an athletic inspector collects a specimen, not an A & B sample.

“There’s more of a practical reason as to why inspectors don’t always split urine in the back room. Locker rooms can be hectic. … It’s not impossible, but it’s just logistically tough.”

Deputy Attorney General Jim Ledakis argued that having inspectors do A & B samples presented a biohazard danger while in a busy locker room. (2 hour, 42 minute time mark of embedded video.)

The three-ring circus

The two-hour hearing was brutal to watch. It was obvious how disorganized the Athletic Commission panel was in terms of process. They had senior Department of Consumer Affairs lawyer Gary Duke helping lay out the guidelines but he was not really running the show. The show was being ran by John Carvelli and he lost control from the start.

Howard Jacobs aggressively went first in defending his client before the State, under San Diego deputy Attorney General Jim Ledakis, presented their case. There was fighting over presentation order. There was fighting over lines of questioning. The UCLA lab doctor argued that guidelines that Jacobs presented were meant for drugs of abuse and not performance-enhancing drugs. As the hearing reached the one hour mark, Jacobs smelled blood in the water and pounced on the UCLA lab doctor in cross-examination. The doctor knew his science but he was on the ropes when talking about process, procedure, and legal issues. Jacobs did his best to raise some legitimate doubt. The problem for Jacobs is that the level of evidence needed to suspend his client was only a preponderance of the evidence, not beyond reasonable doubt.

As Jacobs interrogated the UCLA lab doctor, CSAC Chairman John Carvelli stepped in.

“If you don’t feel answering questions without an attorney, please don’t feel badgered.” He was trying to save the witness. Any image of not being biased was thrown out the window. At the 2 hour 30 minute mark of the video, Carvelli got pissed about Jacobs doing all the talking for Shlemenko. The other commissioners started complaining about Jacobs and his attacking of the process.

“Mr. Jacobs went on for a very long time and I think you should be cognizant of taking time from your client because he does need his time today to talk,” complained attorney & Andy Foster/Big John McCarthy consigliere Martha Shen-Urquidez. “Maybe we should take a lunch break because I’m dying…”

Former CSAC Chairman John Frierson, who rarely spoke at the meeting, railed against attorneys. “You can go on and on…” He stated that his mind was made up.

The only commissioner who bought into the process arguments was a new commissioner named Luis Ayala, who noticed that only four of the five drug testing samples taken from the Bellator Fresno event showed up at the UCLA anti-doping lab. The lead athletic inspector for that event was Northern California inspector Mike Guzman.

John Carvelli noted that Nevada is now implementing 4 year drug suspensions. What he didn’t say is that Nevada put their new suspension policies on the books, whereas that is not the case in California.

Martha Shen-Urquidez argued that other jurisdictions do not use A & B drug samples. The commission unanimously voted to uphold the three-year suspension against Shlemenko.

“The commission has upheld the violations and the ruling of our Executive Officer. You did not come and ask to work with us. You did not come and present any mitigating circumstances or information for us to consider. You chose to have an attorney come and lay down a bunch of conclusions and accusations and propositions on processes and missing samples. Perhaps it may have not been the best, and I’m giving you my subjective analysis now, best way to approach this body. You certainly have your rights in a court in law. I wish you all the best.

“I want to say this to you, though: 50-to-1 ratio is something extremely serious. As a matter of fact, what occurred to me when I first heard that is when is it assault? When is it no longer a competition? When is it an assault on a fighter? I’m not asking you to respond. So, thank you gentlemen, let’s move on to the next agenda item.”

It was obvious that Carvelli knew that Jacobs was ready to go to court seeking a writ of mandate and that Tuesday’s hearing was merely a procedural charade.

Topics: Bellator, CSAC, MMA, Media, Zach Arnold | 14 Comments » | Permalink | Trackback |

14 Responses to “The proposed legal argument against California’s 3-year drug suspension of Alexander Shlemenko”


    1. Shlemenko was juiced to the gills for that fight. Having watched him since his start, he was never that ripped even then! He cheated, the lab tests prove it.

    2. Shlemenko’s trust has been violated by the csac as they are “secretly” no longer testing B samples.
    And then in some half assed attempt to “make an example” of the “russian guy” they give him 3 years? Guess we won’t be seeing him fight in the USA again.

    3. csac is a joke. Why not just hire all brand new employees from the work training center and start from scratch?

    “50-to-1 ratio is something extremely serious, when is it assault?”
    …when your fighting someone OTHER than Manhoof.

  2. Safari_Punch says:

    This begs the question, “how did Manhoef pass his test?”

  3. 45 Huddle says:

    3 years is excessive. It should be 18 months for the first positive test. 3 years for the second. A lifetime ban for the 3rd.

    And in that scenario… the 3 year for a 2nd positive test is almost like a lifetime ban anyways since it is so long. But to give 3 years to somebody on their first offense is too much.

    • rst says:

      “3 years is excessive. It should be 18 months for the first positive test. 3 years for the second. A lifetime ban for the 3rd. ”

      I agree its excessive.

      And although I hate cheating, I’d even knock those down a bit. People make mistakes. Especially young people under the kind of pressure that fighting for a living and your job security based on winning must involve.

      1st: 1 year.
      2nd: 18 months.
      3rd: Lifetime.

      It seems like a jump from 18 to lifetime, but by the 3rd time its apparent that you have no intention of learning from your mistakes or playing by the rules.

      • JSB JR says:

        “People make mistakes.”

        Mistakes? Choosing to cheat isn’t “making a mistake”.

        Making a mistake is taking a wrong turn into a bad area because you read a map wrong, or thinking someone said one thing when they said another. That is a mistake.

        Making a conscious decision to do something you KNOW is wrong or illegal is far from “making a mistake”.

        Mistake: an error in action, calculation, opinion, or judgment caused by poor reasoning, carelessness, insufficient knowledge.

        I absolutely hate that “mistake” excuse. I hear it all the time from public educators and social activists when trying to explain a persons actions that were criminal. Those people knew what they were doing was wrong. No mistake about it.

  4. 45 Huddle says:

    The Jose Aldo injury thing seems extremely fishy to me.

    Now they are saying that another doctor thinks the rib is cracked.

    Here is my opinion…. Aldo is injured and isn’t going to fight. The UFC doesn’t want to lose the record gate so they won’t announce it until the last second and have the Athletic Commission be the ones to cancel the fight.

    This way, they don’t have to give as many ticket refunds.

    • Safari_Punch says:

      Or it is mind games against betters and his opponents camp.

      I’m not sure why anyone really cares about either of these fighters? Can someone explain it to me?

  5. Nepal says:

    Chael Sonnen said it best. Aldo has never reached the PPV threshold to make PPV dollars…ever. This fight could do 1 million buys, that translates to $3.5M to Aldo. That’s way more than he’s ever made in the UFC in his career. He can’t walk away from this. He has to fight injured and probably lose but make the money. If he can’t fight and Medes beats Conner, this payday is off the table.

  6. david m says:

    Aldo is a disgrace. He better pray to God that Conor wins. People saying that Mendes is a worse style matchup for Conor could have a point, but we really don’t know much about Conor’s wrestling so it is hard to say. What we do know is that Conor is much taller and has an 8 inch reach advantage. I would be shocked if he doesn’t KO Mendes.

    • DIAZ'S PACKED BOWL says:

      Tom Lawlor

      No offense but if anyone pays $95 for a shirt with my name on the back you’re an idiot.
      10:01 AM – 30 Jun 2015

      • 45 Huddle says:

        Why would he say that?

        Those are HIGH PERFORMANCE athletic wear! lol

        What garbage the uniforms turned into…

        • DIAZ'S PACKED BOWL says:

          They are pathetic in many ways, like how the ufc logo is heading down, just like their popularity. Without a doubt a complete fail on this fiasco!

          I imagine reebok isn’t happy. I wonder if the ufc put this phoney “interim title fight” label on a number one contender match in order to satisfy contractual obligations to reebok. UFC agrees to deliver at a title fight main event starring either #1 Jon Jones #2 RR, or #3 McGregor


    I knew this fight was doomed when the ufc unveiled their fancy aldo vs mc gregor “coming to town” promo, while pretty much ignoring the OTHER title match on the card. Hearing dana and frattata say the fight would go on… just confirmed it.

    Edgar was also first in line, and actually held a title for a while, but ufc doesn’t promote him any more.

    Conner? 5 fight streak against non top ten opponents, but he’s got “it” so he’s what ufc wants. But to call this a title fight and keep it as the headline? Dana is a habitual liar, so no surprise.

    I doubt the original ppv would have done more than 800,000 so no ppv points for anyone anyway. Bruised rib is not that big of a deal, you show up for work and maybe do a crummy job that week, in aldos case maybe he looses? that sets up a healthy Aldo rematch for more money. So its not about the money, personally I think this new drug testing is what caused Aldo to bow out.

    Reebok uniforms? Ohh boy, the ufc blew this big time. First off they can’t provide a spell checked list of fighters, then hire jack in the box graphics firm to “bang out” a rush job with the shitty graphics, then the champion outfits are a dismal black. That’s what $70,000,000 gets? And a Josh krochet uniform? reeboks looking at a little lawsuit right off the bat.

    “When the UFC unveiled the Fight Kit uniforms on Tuesday, a Reebok shirt with Koschek’s name was initially available for purchase. That did not sit well with the 37-year-old New York native.”

    “I know that they did a Koscheck shirt. They don’t have that right. I had that apparel carved out of my contract when I was negotiating with the UFC,” he said. “I fight for Bellator now. I’ll probably give Bellator the right to do whatever they want in apparel, but I did not give the UFC that right. I believe that Reebok and them are going to be getting legal notices in the next day or so from my attorney to take that s–t down because it’s horrible. It’s not good for the fighters. Not at all.”

  8. [...] One year ago, the California State Athletic Commission in conjunction with the Department of Consumer Affairs and the Attorney General’s office (Jim Ledakis) administratively prosecuted Alexander Shlemenko on four different nine-month charges in order to construct a three-year steroid suspension. This suspension technique was unheard of for past California drug suspensions. [...]


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