By Zach Arnold | November 14, 2015
Prohibited association. Get used to hearing more of this phrase in the coming months and years as long as UFC has a relationship with USADA.
Prohibited association is a policy pushed by WADA & USADA to name-and-shame those caught doping by isolating them completely from any active or passive involvement in sport. The policy says that no fighter can associate with any fighter who fails a drug test. Valerie Letourneau was warned by UFC that Hector Lombard could not be in her corner because of his recently failed drug test. This means no fighter under UFC contract can associate with any fighter in or out of the cage if the person they want to be around has failed a drug test.
The fighters did not collectively bargain on this matter. UFC simply told them to accept it as part of doing business or else not fight in the UFC. Ramsey Nijem is no longer fighting in the UFC. Other fighters are protesting the scope of the USADA policy.
This new policy is ripe for two different kinds of challenge: a court challenge and a regulatory challenge.
The USADA policy attacks freedom of association and penalizes fighters not guilty of an administrative offense for associating with fighters who have failed drug tests. This is the kind of policy you see police forces use against banks or TV outlets or other businesses in Japan who have done business with known yakuza entities in the past. Tackling organized crime is, well, a criminal matter. Using steroids as a fighter while battering your opponent is justifiably assault & battery but how many UFC fighters have been convicted of such offenses in the criminal justice system?
What would UFC’s legal defense be? I would expect them to fall upon cases like this, where the LAPD’s prohibited association policy was deemed Constitutional.
The Los Angeles Sheriff’s Department has a prohibited-association policy which bars employees from maintaining a “personal association with persons who are under criminal investigation or indictment and/or who have an open and notorious reputation in the community for criminal activity, where such association would be detrimental to the image of the Department, unless express written permission is received from the member’s unit commander.”
This was a ruling from a California court of appeals, not a ruling from the 9th District federal court of appeals. The state court did not consider Federal civil rights issues raised. In searching case law on “prohibited association,” the majority of cases involve individuals convicted of sexual crimes who have terms of prohibited association as part of probationary terms. Or, in a matter of consent decrees with groups like the Teamsters in 1988, prohibited association agreements to not associate with members of La Cosa Nostra.
The much more complicated challenge is with the various state athletic commissions. If an athletic commission like California or New Jersey licenses a fighter to be a second or trainer, who has jurisdiction over whether or not a fighter has the right to be in another’s corner while suspended for a failed drug test — the state regulatory body or USADA? USADA has no official governmental power. They simply work as a third-party to fighters and promoters. California recently signed a deal with USADA to help collect doping samples at events — and I am trying to get a copy of that contract — but USADA itself does not have the ability to criminally charge or supersede the authority of a state athletic commission.
Just how broad is this pseudo-policing power for USADA? Read what Mike Coughlin wrote about the case of Gilbert Melendez and how any fighter who has trained with Gilbert Melendez is, theoretically, eligible for suspension and punishment. Guilt by association.
This opens up a huge can of worms. And it’s a can of worms I expect any fighter punished by the policy to challenge in Federal court. The issue of freedom of association. The issue of guilt by association and whether or not such a contractual clause is unconscionable & adhesive. The issue of excessive punishment. According to USADA, any suspended fighter who helps out another fighter risks getting their original suspension doubled. Not by an athletic commission but by USADA, an agency with zero governmental authority. So much for due process. And none of this addresses the accurate or inaccurate nature of the drug tests used or issues arising from the sample collecting process that may result in errors.
Another legal challenge that I expect to arise from USADA’s tactics: the issue of disparate treatment. How can USADA prove that they enforcing punishments with 100% accuracy? Hire private investigators to spy on gyms to see which fighters are “associating” with suspended fighters?
If you have not read the 21-page USADA agreement, go read it now. Start learning what’s in the policy because I expect future court cases to arise from it.
The policy not only applies to fighters, it applies to: managers, coaches, trainers, seconds, agents, officials, and doctors. Furthermore, the policy says that the burden of proof is not on USADA but on any person served by USADA with a warning letter regarding association with a suspended or convicted fighter over a drug test (page 4 of policy).
Here is WADA director general David Howman talking about the new prohibitive association policy in regards to cycling. In cycling, doctors have been targeted for assisting in doping. We have yet to see police authorities target mark doctors in MMA for such activity.
You’re not alone in questioning the broad scope of power granted to USADA & WADA over prohibited association. Read this Australian Greesn’ Senators dissenting report regarding a 2014 Australian anti-doping authority bill. It attacked the policy as “broad and ill-defined.”
Unless amendments are made, the Bill as it stands may punish the wrong people as penalties for inadvertent breaches will double and athletes rather than prohibited persons may be penalised.
Although the intent of the Bill is to protect athletes, as submitters from the legal profession and athletes’ representatives noted, while there is universal support for anti-doping legislation, the Bill is drafted in ways that may punish innocent athletes and not those responsible for anti-doping infringements.
There are a lot of challenges ahead USADA in enforcing this policy and defending it in court. UFC fighters did not collectively bargain for this. USADA itself is not a governmental agency and there is no state or federal law in the States regarding prohibitive association. Perhaps that will change in the near future if UFC lobbies various state athletic commissions to write new rules & regulations implementing such policy. Issues regarding due process, adhesiveness, and disparate treatment are ripe. There will undoubtedly be attempts to keep lawsuits from being filed by forcing arbitration. Nonetheless, I expect declaratory & injunctive relief petitions to be filed by fighters who are given written notices by USADA to stop associating with suspended individuals.
I also expect some fighters to simply walk away from the sport or fight outside of the UFC.
- Mike Chiappetta: USADA’s prohibited association clause unjust
- Ben Fowlkes: Why USADA’s prohibited association rule could be a square peg in a round hole
- Swimswam: USA Swimming sends out reminder communication about WADA’s new prohibited association rules