BANE’S LEGAL TAKE: On Jones’ UFC 152 accusations regarding Belfort, UFC’s awareness of PED use

By Michael Bane, MMATorch Contributor

Jon Jones (art credit Grant Gould © MMATorch)

Jon Jones dropped a bombshell on his employer in an interview with Ariel Helwani last week, accusing the UFC of putting Vitor Belfort into a title fight against him at UFC 152 with the knowledge that he was taking steroids at the time. There is little doubting that this is true, as Belfort was admittedly on Testosterone Replacement Therapy (TRT), and testosterone is an anabolic steroid.

TRT is a legitimate, albeit often debated, medical treatment designed to raise the testosterone levels in the body. The most common use for TRT is in treating the effects of hypogonadism, which is when the body’s natural testosterone production has been compromised. Another, and more controversial, use for TRT is to combat the effects of aging in men as their testosterone production naturally diminished.

TRT can be used in sporting competitions if the appropriate governing body grants a Therapeutic Use Exemption (TUE). Because of the obvious potential for abuse to gain competitive advantage, TUEs have rarely been granted in most sports. The anomaly has been MMA. In 2014 ESPN’s Outside the Lines did a study showing that TUEs were granted at a significantly higher rate than any other sport or sporting organized sporting competitions. For comparison, 11 of the approximate 1800 fighters under contract with Bellator and the UFC at the time had received TUEs, while exactly zero of the 5982 male athletes in the 2012 Olympic Games were granted one.

While having generally accepted medical uses, the abuse of TRT as a “legal” way to take PEDs for competitive purposes rose from a couple of factors. The first had to do with the way that MMA is regulated as a sport. Individuals states and foreign countries handle all rules and licensing for events in their respective jurisdictions. While some of these places adopt the same sets of guidelines, it has been far from uniform. Events held in places which don’t have frequent combat sporting events were even worse for this potential abuse, as they tended to be pretty lax, lacking the resources and financial motivation to establish and monitor effective testing systems. Because of this, and a general tendency to just look the other way, the process of getting a TUE was often not much more than someone applying for one, with any given doctor signing off on a supposed medical need.

I say “supposed” because hypogonadism, the condition that TRT most commonly treats is exceptionally rare among people around the ages that most fighters are. In 30-year-olds, it is found in less than 0.1% of the male population. Due to the disadvantage that it causes, those people rarely find themselves at the elite level of competitive sports. The number of TUEs grated in MMA, both when compared to other sports and the male population in general, is immediately suspicious.

It’s a fact that male testosterone production diminishes with age. It’s the grey area of what’s constituted “low testosterone” that adds to the abuse potential of TRT. If you compare a 33-year-old man to a 20-year-old man, his testosterone levels are going to be lower. If for some arbitrary reason we start considering levels of younger men to be “normal” it becomes very easy to issue a TUE to anyone as the standard becomes entirely relative. Medical need for the treatment was much too subjective of a thing during its time in MMA. This isn’t even taking into consideration the ability to legally use TRT to pump the body’s testosterone levels to high above natural while training.

It is important to note that in September of 2012, when UFC 152 took place in Toronto, that TRT was allowed in MMA. It wasn’t until February of 2014 that the Nevada Athletic Commission banned TRT for use for any reason in MMA. The above stated potentials for abuse were huge factors in coming to this decision. The UFC and other jurisdictions have followed suit. But when Vitor stepped on to the scale in 2012 for the UFC 152 weigh-ins, that Greek godlike physique he sported was largely due to a legal treatment at the time.

The Nevada Athletic Commission and other larger administrations have the wherewithal to monitor and conduct testing with the personnel and infrastructure they’ve established from putting on a multitude of events. This wasn’t the case with Ontario’s Athletic Commission (OAC). They turned the administration of testing, and the application of the rules of their jurisdiction, over to the UFC. This isn’t an uncommon thing at all, as we’ve seen the UFC handle drug testing and protocol on numerous occasions in countries like Brazil.

The UFC’s responsibility at UFC 152 was not only to administer the drug testing, but to act as the de facto commission in many respects. This included the granting of TUE exemptions for the event. This may seem like an inherent conflict of interest, but pragmatically speaking, having some oversight and testing is much better than having no oversight and testing. And having a sport oversee its own athletes for prohibited substances isn’t anything new. The NBA, MLB, NFL and NHL all set their own policies, handle their own testing protocols, and govern their sports.

In reality, Jones is not accusing the UFC of knowingly letting Belfort fight when he was on steroids. That was already known. He’s accusing the UFC of knowingly letting Belfort fight when he was abusing TRT to the point where his testosterone levels were abnormally high. The UFC had an obligation in their actions to uphold the standards set by the OAC. Per the OAC’s website, they adopt the rules of the State of New Jersey, which incorporates the World Anti-Doping Association’s list of banned substances. The UFC tested Belfort, and also issued him a TUE exemption for this event. While we can argue the validity of TRT, the UFC was within their rights to issue a TUE based on the rather lose medical criteria that was being used at the time.

What we cannot argue however is that if Belfort’s tests came back showing testosterone levels high enough to show abuse, the UFC should not have allowed him to fight. The results should have been disclosed to the OAC, and Belfort should have been suspended. Josh Gross’s Deadspin report doesn’t paint the UFC in a very favorable light. When the results of Belfort’s test were accidentally emailed to numerous unintended parties, the recipients of said email were shortly thereafter told to delete the results and that disclosure of said results to anyone could lead to a lawsuit. If you read between the lines, it isn’t hard to start thinking that the UFC was intentionally trying to cover up damning evidence that could put their event in jeopardy.

Up to this point, the UFC has been pretty quiet in responding to these statements. Why? It’s a damning accusation that Jones has made, not unlike the statements that Wanderlei Silva made about the UFC fixing fights. The UFC not only quickly denied doing such a thing in Silva’s case, they filed a defamation lawsuit against Silva for making untrue statements that would hurt their business. There’s little doubt that the statements Jones made are bad for business, but there’s a bunch of reasons that they may not want to sue him like they did with Silva.

For starters, Silva was an older, somewhat unstable, fighter who was on the tail end of his career and had fallen from the elite rankings over the past few years. Jones, on the other hand, is one of the premier fighters of his generation, and has the talent to be the greatest of all time. He’s young, has really never lost, and sells tickets. Jones is under contract to fight with the UFC, and they want him to fight. A lawsuit against Jones would put the brakes on that, and the Light Heavyweight Title would continue to be viewed as illegitimate until he takes it back or loses to the current holder.

But perhaps a far more compelling reason, and a rather scary one at that, is that truth is a complete defense to a defamation suit. The UFC can’t successfully sue Jones, if they did in fact do what he said. It would be much worse for them for a court to rule that the statements were indeed, true. Whether they did or they didn’t, their silence is not doing them any favors.

Jones has made no secret of his feelings on the matter. He’s gone so far as to call their actions a “hazard to his life.” While hardly a choirboy himself, it’s hard to argue with his feelings that he was wronged. Publicly outing your employer is a bold and somewhat surprising move, as much of his livelihood largely depends on the success of the UFC and their continued willingness to pay him money.

Much like the UFC isn’t going to sue Jones, it is unlikely Jones would take legal action against the UFC for this. It would probably make it hard for him to fight under their umbrella. There’s also the question of what standing he may or may not have had, as Belfort’s alleged testosterone abuse didn’t appear to do him any lasting harm, nor did he lose the fight. Rather, I think his public display of anger (real or feigned) about the issue is just a card he’s going to play when it comes to negotiation. The life of an MMA athlete can be a short one, and Jones has cost himself a lot of money with time off and the loss of two huge endorsement deals. I don’t expect this fight to last very long publicly between them, as they will eventually make nice, and Jones will be able to squeeze some extra dollars out of Zuffa by using this situation a bargaining chip.

It’s possible that the UFC faces some sort of fine or punishment to the OAC. If they knowingly withheld information or put a fighter into a contest when they should not have, they could be subject to discipline. The OAC has traditionally shown a pretty lax attitude toward PED abuse as a whole, so don’t expect much to come of this, if anything. There’s really no chance they ban the UFC, as that would only be hurting themselves financially. In the end, this will likely work out fine for everyone. Well, everyone except the UFC and their reputation. Sometimes the worst injuries are the self-inflicted ones.

Michael Bane is an MMA enthusiast and attorney practicing in Chicago, Illinois.

[Jon Jones art by Grant Gould (c)]


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