Sunday, September 19, 2010

What's Next For Sonnen with the California State Athletic Commission -- A Look at the Relevant Law and Rules

As reported by Sherdog in an article, "CSAC: Sonnen Positive for PEDs at UFC 117," the California State Athletic Commission has alleged that Chael Sonnen failed his drug test in connection with his fight with Anderson Silva last month.

Specifically, Sherdog reports as follows:
According to California State Athletic Commission Executive Officer George Dodd, Chael Sonnen has been notified that he failed post-fight drug screening following his loss to Anderson Silva at UFC 117, which was held Aug. 7 at the Oracle Arena in Oakland, Calif. '[Sonnen] received his notice yesterday,' Dodd told Sherdog.com shortly after the Shane Mosley-Sergio Mora boxing match ended Saturday night in Los Angeles.
According to Sports Illustrated reporter Josh Gross via Twitter, "Chael has option to respond, request hearing. Calif. attorney then will lay out case in front of CSAC. Chael presents his case. Takes time."

I don't have much (or anything) to add to the substance of the CSAC allegation, but I did want to provide readers with the relevant procedural rules and statutes that will govern next steps in the process.

At 10,000 feet, the CSAC will likely issue a temporary suspension while it conducts an investigation and Sonnen will have 30 days to request a hearing. If, after the investigation, the CSAC revokes Sonnen's license, he will need to wait a year to seek reinstatement or apply for another license.

Note, if the CSAC does suspend or revoke Sonnen's license, Sonnen has the ability to appeal to the Superior Court only as to whether the CSAC committed an error in the law, i.e. Sonnen does NOT have the right to appeal the factual determinations of the CSAC, which means any appeal to the Superior Court in this context would be a waste of time because, as set forth below, the CSAC has a tremendous amount of discretion under the relevant law.

As you may recall and for comparative purposes, a similar temporary suspension was put in place after the Margarito Mosley fight where the CSAC investigated the "plaster like substance" on Margarito's gloves before the fight.

First, Section 303 of the CSAC "Professional Boxing Rules," which is applicable to the CSAC "Professional Full-Contact Martial Arts and Kickboxing Rules," because it is not excluded under Section 502 (see CA BPC Article 9, Section 18761 "Rules and regulations of the commission relating to professional boxing shall apply to kickboxing and martial arts, except where specifically excluded by the commission's regulations"), provides as follows:
The administration or use of any drugs, alcohol or stimulants, or injections in any part of the body, either before or during a match, to or by any boxer is prohibited.
The FAQ portion of the CSAC website provides more information concerning the testing procedures and substances tested for:
Q. What kinds of substances may be tested for at an event?
A. The following is a list of substances for which the Commission tests:
Stimulants
Narcotics
Cannabinoids (Marijuana)
Anabolic Agents (both Exogenous and Endogenous)
Peptide Hormones
Masking Agents
Diuretics
Glucocorticosteroids (Requires medical exemption)
Beta-2 Agonists (Asthma Medications)
Agents with Anti-Estrogenic Activity
Q. Is it okay to use dietary supplements?
A. The Commission’s policy is one of ‘strict liability’. This means YOU are responsible for anything that you put in your body. If you take supplements, and you are later found to be positive, it is your responsibility.
Be aware that the supplement industry is poorly regulated. Don’t put anything in your body that may negatively affect your health and safety and career.
If a prohibited substance is detected in your sample – even if it was unintentional – it will result in a violation of Rule 303.
Be aware that a wide range of products are considered dietary supplements, including vitamins, minerals, amino acids, herbs, botanicals, and more. The Commission warns contestants that some of these products have a negative effect on performance.
Moreover, there are some studies (prior to 2004) that found that some supplements were contaminated with steroids.
Q. What if I need to take medicine for my health?
A. The Commission understands that some athletes may need to take prescribed medicine for symptoms diagnosed by physicians. However, don’t attempt to use a medical prescription as an excuse to circumvent the anti-doping testing procedure or policy.
You must inform the Commission well before your bout if you are taking any kind of medicine. You will then need to be fully cleared by a Commission Physician. This may take time. Plan ahead. Many prescription and over-the-counter medicines can lead to a positive doping test, such as ADHD medicine, asthma inhalers, cold medicines, etc.
Call the USADA (Anti Doping Agency) Drug Reference Line (1-800-233-0393) to check any substance. You may apply to have medications containing prohibited substances approved for health conditions.
If you are taking a prescribed medicine, you must contact the Commission for instructions on how to apply for an exemption. This process needs to be completed well before the competition.
[. . .]
.If a prohibited substance or method is detected in your sample – even if it was prescribed and the Commission was not informed in a timely and clear manner – it may result in a violation of Rule 303.
Second, Section 390 of the Rules, "Violations of Laws or Rules," provides as follows:

Any licensee who violates the laws of the State of California, with the exception of minor traffic violations, or the rules of the Athletic Commission, or who fails or refuses to comply with a valid order of a commission representative, or who conducts himself or herself at any time or place in a manner which is deemed by the commission to reflect discredit to boxing, may have his or her license revoked, or may be fined, suspended or otherwise disciplined in such manner as the commission may direct.
Third, Section 399 of the Rules, "Procedure when License Denied or Revoked," provides in relevant part as follows:
Anyone who has had his license revoked may not petition for reinstatement or apply for a new license until one year after the date of such revocation. Any petition for reinstatement filed within the one year period may be denied without the necessity of a hearing.
Also, the relevant statute, Section 18842 of the California BUSINESS AND PROFESSIONS CODE, Article 14, Administration and Enforcement, provides the framework for challenging a temporary suspension by the CSAC for a Code or Rule violation:
18842. The commission, the executive officer and other employees duly authorized by the executive officer, shall have the power to suspend temporarily, any license until final determination by the commission when, in his or her opinion, the action is necessary to protect the public welfare or is in the best interest of boxing or martial arts. The suspension may be without advance hearing, but the suspended licensee may apply to the commission for a hearing on the matter to determine if the suspension should be modified or set aside. The application for a hearing shall be in writing and shall be received by the commission within 30 days after the date of suspension. Upon receipt of such written request, the commission shall set the matter for hearing within 30 days.
Finally, Section 18841 provides that a license may be suspended or revoked for "any violation or attempted violation of this chapter, any rule or regulation adopted pursuant thereto" and provides the method for appeal to the superior court.

Specifically, Section 18841 provides as follows:
18841. Notwithstanding any other provision of this code, licenses issued under this chapter may be revoked, suspended, or placed on probation under terms and conditions including, but not limited to, the making of restitution, for any violation or attempted violation of this chapter, any rule or regulation adopted pursuant thereto, or for any cause for which a license may be denied. Such action shall be final, except that the propriety of such action is subject to review, upon questions of law only, by the superior court. The action of the commission shall stand unless and until reversed by the court.
Fight Lawyer