By Zach Arnold | June 25, 2015
- California State Athletic Commission leveled four separate charges against Alexander Shlemenko, including a violation of a drug test (50-to-1 testosterone-to-epitestosterone ratio) and not properly/accurately filling out paperwork at Bellator event in Fresno
- Each charge against Shlemenko carried a 9 month suspension and $2,500 fine
- The commission hammered Shlemenko with a combined 3 year suspension and $10,000
- Shlemenko’s attorney, Howard Jacobs, did not focus on the science but rather the process and precisely interrogated witnesses
- California State Athletic Commission admitted that they do not do split drug testing samples (A & B samples) any longer due to inconvenience
- Jacobs challenged both the State and the doctor heading UCLA’s drug lab as to why the State does not collect A & B samples now despite a contract between UCLA & CSAC allegedly stating that A & B samples should be collected according to Federal guidelines
- UCLA lab head claims that since CSAC is not a WADA signatory that therefore they are not legally bound to collect A & B samples but rather can run their drug testing collection protocols as they see fit
- An argument was made that since there is nothing in the California Code of Regulations regarding the collection of drug testing samples that therefore there are no guidelines regarding A & B samples
- Jacobs countered that past clients he has represented in front of the Athletic Commission from 2007 to 2012 have had A & B samples taken for drug testing
- The director general of WADA recently argued that B sample drug testing should end
- The 7 members of the Athletic Commission board chastised Jacobs for attacking the process and for not giving Mr. Shlemenko time to answer questions and offer testimony
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.