Barring a last-minute settlement prior to Monday, former UFC light heavyweight champion Jon Jones will be the first athlete to participate in an arbitration with USADA as part of the UFC’s new Anti-Doping Policy.
Three days prior to UFC 200 on July 9th, results from a June 13th USADA out-of-competition test flagged Jones urine sample for a banned substance. As a result, Jones, who was to fight in the main event against Daniel Cormier for the light heavyweight title, was taken off the card. The UFC had to make last-minute changes to the card not to mention last minute alterations to its promotion of what was to be the biggest card in the company’s history.
Jones proclaimed his innocence but the test results later revealed the substances of hydroxy-clomiphone (or Clomid, a banned anti-estrogenic substance) and “traces of letrozole,” an aromatase inhibitor which are prohibited. Both Jones’ A and B samples revealed the substances. Clomid is a selective estrogen-receptor modulator (SERM) and is used by after taking steroids in a post-cycle therapy protocol. Letrozole is an anti-cancer drug, which lowers levels of estrogen. The drug blocks the conversion of testosterone to estrogen. While the findings are not conclusive that Jones took the supplement (or supplements) containing the banned substances as a regiment for taking some sort of performance enhancing drug, the question is what was the reason for taking a product without knowledge of its contents. While we may not get to the latter question, the hearing will hinge on the use of these banned substances.
Per the UFC Anti-Doping Policy, Jones appealed the test results which dictates that he must submit to arbitration. The arbitration will be heard by McClaren Global Sports Solutions, Inc. of Toronto, Canada.
Jones retained attorney Howard Jacobs to represent him at arbitration. The name should sound familiar to some as he represented cyclist Floyd Landis and track athlete Marion Jones in their respective doping cases.
For a UFC athlete, they must pay $2,700 to appeal a test result to have an arbitrator assigned the case. Jones paid for an arbitration panel of three which cost him $55,00 not to mention Jacobs’ attorney fees.
Howard Jacobs tells me Jon Jones's decision to get a three-person arbitration panel will cost him at least $55,000. #TLTS
— Luke Thomas (@SBNLukeThomas) October 21, 2016
Notably, a fighter seeking to appeal may request a financial waiver of the fee. It doesn’t look like Jones sought the waiver.
Jacobs has had the product taken by Jones independently tested and the results reveal that it is a contaminated product with the banned substances. Jacobs claims that USADA tested the same product used by Jones and claims that USADA’s results reflect that it is contaminated.
The Burden of Proof
Under Article 3.1 of the UFC Anti-Doping Policy, USADA shall have the burden of establishing that an Anti-Doping Policy Violation (ADVP) has occurred. USADA must establish that an ADVP has occurred to “the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation which is made.” The standard of proof is “greater than a mere balance of probability but less than proof beyond a reasonable doubt.” It would seem that the legal standard is between “clear and convincing” and “more likely than not.” Jones may have a rebuttable presumption or establish specified facts or circumstances if USADA establishes its burden. Jones’ burden would be “by a balance of probability” per 3.1. It would appear the standard that would be more likely than not.
According to the arbitration rules, a written decision will be issued and served on all parties within 30 days after the end of the hearing.
Since the banned substances are designated as specified substances per the World Anti-Doping Agency and the UFC Anti-Doping Rules, Jones faces a potential suspension of one year from USADA. Jacobs is hoping that the panel will hand down a lesser suspension due to the contamination of the product.