Human Growth Hormone testing was in the news again recently when it was reported that UFC middleweight Cung Le, aged 42, was given a year-long suspension from competing in MMA Fighting due to a positive HGH test. The UFC yesterday rescinded their suspension due to flaws discovered in their testing process. The UFC becomes the latest professional sports league to have one of its stars test positive for performance enhancing drugs while also having its drug testing procedures challenged.
Le stated “I have been informed that there are many possible reasons for a level of HGH to exceed what is allowed unknowingly and my doctors are researching those possibilities, which may include a much more serious health concern. I have also been informed about the unreliability of the current HGH testing that exists and its high rate of inaccuracy.” He went on to say, “I want to reiterate to my fans and the fans of mixed martial arts everywhere that I did not take any performance-enhancing drugs or anything that would cause my natural level of HGH to exceed normal levels.”
The decision to rescind the suspension was based on the discovery that the testing facility utilized by the UFC, the Hong Kong Functional Medical Testing Center, was not approved by the World Anti-Doping Agency (WADA) and that the blood sample had been taken just minutes after the conclusion of his fight, which raised questions about the levels of HGH produced naturally.
Although the suspension has been rescinded, this challenge illustrates that the UFC needs to develop a fair procedure for testing, especially for fights that take place outside of territory that is regulated. According to a report by ESPN, Le was tested following his bout with Michael Bisping in Macau, China in August 2014 in which he suffered a fourth-round TKO. Unlike with an event held in the United States, since this event was held in a territory that does not have any established regulatory oversight, the UFC self-regulated the event. It seemed that Le had no opportunity to seek out an appeals process and had no choice but to accept the ruling.
Last week UFC officials decided that Le would be granted an arbitration hearing with the American Arbitration Association (AAA) to challenge his positive HGH test. Rescinding the suspension nullifies the need for arbitration in this case. Going forward, according to AAA Vice President Michael Clark, once the AAA is given permission to work on the case – something either specified in existing contracts or agreed upon after the fact – the process will move forward. Once the AAA is given permission to manage the case, one arbitrator will be named. The UFC or the fighter will have the right to request up to three arbitrators. The panel will be chosen from experienced arbitrators from the AAA/CAS (Court of Arbitration for Sport) Panel. After preparation for the appeal has been completed, the parties involved will hold an “evidentiary hearing” before the panel. After hearing the evidence from both sides, the panel will come to a decision within thirty days from the date the hearings are finalized. The decision rendered is both final and legally binding.
While it is not known which way the panel would rule, the UFC has been shown that positive tests will be appealed, especially in situations where there is not a regulatory body established. In the future, The AAA panel’s decisions will be watched closely to see if the decisions are in favor of the fighter. A favorable decision could cause other fighters to challenge their positive tests. Fighters rarely challenge performance enhancing drug suspensions in territories which are regulated, such as the United States, because rarely are the decisions overturned.