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A Change Is Gonna Come: An in-depth look at drug testing in California

Where regulating bodies oversee athletic competition, athletes, in order to be licensed, agree to be bound by the rules and regulations of that state’s commission. However, disputes arise and professions are injured when rules lack clarity and are applied arbitrarily.

Citing the California State Athletic Commission (CSAC), as of 10/31/07 their doping guidelines follow the World Anti-Doping Agency (WADA). Section 3.1, “The [regulator] shall have the burden of establishing that an anti-doping rule violation has occurred…to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made. This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.”

While a ruling against the athlete, whether justified or not, has no adverse consequence to the regulating body, the athlete may be forced to surrender championships and forfeit competitions, costing the aggrieved among other things, pride, market value, fines and other legal fees possibly into the hundreds of thousands of dollars. The ambiguity of the WADA code creates a confusion between the athletes and the commission which will always prejudice the athlete.

To date, there is no readily available case of an athlete who passed his anti-doping test while using a banned substance. Obvious financial and social injury aside, less obviously, no such case may exist because the athlete doesn’t know of the violation until the commission tells him so since, the commission alone makes that ruling. A thorough search of the CSAC and WADA website, including all published codes and regulations yields no definitive answers on unacceptable levels of substances. Thus, the CSAC appears to have absolute authority and discretion to determine unacceptability because they have neither a higher authority to which they answer, nor a published code by which they abide. Confusion therefore, predictably arises when the athletes have no way to know the rules.

If there is no overseeing authority, does that make the regulating body’s authority absolute? In the case of Sean Sherk, it would appear so. Although the CSAC has unconditional power to determine whether any level of substance is too high; still they provide an illusory appeals process.

What are my rights when I am being tested?”

You have the right to:

1. Bring a representative with you during the test.

2. Have the Commission representative explain any procedure that you do not understand.

3. Provide feedback.

4. Document any portion of the test that may not feel right to you.”

Summarily stated, “(2) The CSAC will explain only if you ask, but even though (1) you may have someone witness and (4) document misconduct, the CSAC has no obligation to impartiality (3) but you may provide feedback.” This begs the question, “if a falsely accused athlete’s career has been irreparably damaged or terminated as a direct result of misconduct by the CSAC, can the CSAC be held accountable and do athletes have any means of protecting themselves?”

Sherk was accused, according to statements published by ESPN/Sherdog on 7/17/07, “after testing both ‘A’ and ‘B’ samples of the urine specimen provided by Sherk the day before the fight, the UFC former champion’s Nandrolone level was certified by the Director of Science and Technology at the lab conducting the tests at 12 ng/ml, two times higher than the threshold allowed by the CSAC.”

“The Muscle Shark” responded by going through the appeals process where he asserted that the Quest Diagnostics was negligent with his samples. Citing Yves Reznik et al., The Journal of Clinical Endocrinology and Metabolism, concentrations could be raised by as much as a four-times-multiplier without a correction for the decrease in volume dieresis. Without taking proper precautions, as Sherk had suspected, his Nandrolone levels could have been within the accepted threshold. Sherk presented stronger evidence of misconduct when, in a subsequent visit to Quest Diagnostics, a “water blank” was also shown to test positive for Nandrolone. Still, the CSAC was adamant in refusing to acknowledge contradicting evidence.

Disturbingly, the CSAC doesn’t actually hold themselves to the WADA rules section 3.1, “Where the Code places the burden of proof upon the Athlete or other Person alleged to have committed an anti-doping rule violation to rebut a presumption or establish specified facts or circumstances, the standard of proof shall be by a balance of probability…where the Athlete must satisfy a higher burden of proof.”

Sherk’s discovery, documentation and evidence of testing misconduct should have at minimum prompted an investigation by the CSAC as the balance of probability shifted drastically away from Quest Diagnostics’ findings. However, public statements by the CSAC showed only a stubborn instance on guilt without “bearing in mind the seriousness of the allegation which is made.”

As more of these cases pile up, it is becoming irrefutably clear that the CSAC cannot be allowed absolute authority.

Here’s to hoping that recent developments with Josh Barnett help us move towards a solution.

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