On Monday, in a contentious dispute over a cancelled fight, a New York jury determined that boxer Alexander Povetkin took the banned drug meldonium and, as a result, ruled in favor of boxing heavyweight champion Deontay Wilder.
The fight between heavyweights Alexnder Povetkin and Deontay Wilder was set to take place on May 21, 2016 in Russia was cancelled. The reason for the cancellation differed depending on which fight camp you asked. Wilder’s camp argued that the it was due to Povetkin failing a drug test. After finding out Povetkin failed an April 27, 2016 WADA test, Wilder did not travel to Russia for the fight. Povetkin’s camp claimed that despite the drug test, the governing organization, the World Boxing Council (WBC), did not cancel the fight until Wilder stated that he would not go to Russia.
The match was set up by Povetkin’s promoter, World of Boxing, LLC (World of Boxing), after successfully winning a purse bid of $7.15 million. According to the Bout Agreement, the agreed payout would include 10% of the bid (i.e., $715,000) going to the winner of the fight and a 70-30 split thereafter in favor of Wilder. Thus, the Alabama native, Wilder, would receive approximately $4,504,500 and Povetkin $1,930,500, with the winner taking home an additional $715,000. The WBC took a commission from the purse bid as well. The money was placed into an escrow account until after the fight.
With the money set out, the parties could not agree on a drug testing protocol. The WBC instituted drug testing via the Voluntary Anti-Doping Association (VADA) on April 6, 2016. VADA conducted testing on Povetkin on April 7, 8 and 11, 2016. All tests were negative for banned substances. However, another test taken on April 27, 2016 tested positive for meldonium.
Wilder’s side advised the Escrow Agent not to disburse any of the money in the escrow account until a court issued an instruction allowing its release. At the time, Wilder was training for the fight in London. But, learning of the failed drug test, he decided to head back to the United States instead of flying to Russia for the May bout.
Povetkin’s attorneys argued that the meldonium found in Povetkin’s sample was negligible and could not impact an athlete’s performance, and that Wilder did not allow the WBC to make a determination on the positive drug test as Wilder decided not to travel to Russia for the fight. Hence, Povetkin and World of Boxing argued that it was Wilder’s failure to appear in Russia at the fight as the reason for the cancellation.
They also opposed the restriction Wilder’s attorneys gave the Escrow Agent as they believed that the money for the bout should have been returned due to its cancellation. In addition, they argued that a liquidation damages clause of $2.5 million included in the bout agreement should have been invoked against Wilder for his breach of the contract for not traveling to Russia for the fight preparations.
Wilder and his promoter Lou DiBella, of DiBella Entertaintment, Inc., filed a lawsuit against World of Boxing and Povetkin (“Povetkin”) for breach of contract in June 2016 in New York. Ten days later, Povetkin filed crossclaims against Wilder and DiBella for breach of contract and defamation for calling him a cheater.
What Is Meldonium?
Notably, women’s tennis star Maria Sharapova tested positive for meldonium early in 2016. She was banned for two years by the International Tennis Federation after failing a drug test at the 2016 Australian Open. Sharapova had taken the drug since 2006. The drug is used to treat ischemia.
According to a report by the Guardian, it is manufactured in Latvia and only distributed in Baltic countries and Russia. It is not approved by the Food and Drug Administration for use in the United States and not authorized in the rest of Europe.
As for its athletic benefit, it increases blood flow, which improves exercise capacity in athletes. WADA believed that athletes used the substance as it would carry more oxygen to muscle tissue and thereby enhancing performance. Meldonium was added to the WADA banned substance list as of January 1, 2016,
However, WADA sent out notification in April 2016 that there was “limited data” on the “urinary excretion of meldonium.” Essentially, timing varied as to the release of the substance. Per the WADA notice, a fact finder may determine “an athlete who has established on the balance of probabilities that he or she ingested meldonium would still be present in his or her body on or after 1 January 2016. In these circumstances, WADA considers that there may be grounds for no fault or negligence on the part of the athlete.” Thus, even though a drug test on or after January 1, 2016 revealed meldonium in an individual’s system, they might not be held at fault for taking the banned substance due to the unreliability of when the drug might have been ingested.
The Trial, A Battle Of Experts
Despite additional allegations in the lawsuit and the crossclaims from World of Boxing and Povetkin, the parties agreed that the sole issue determined at trial was whether or not Povetkin took meldonium after January 1, 2016.
Povetkin’s legal team, from the law firm of Arnold & Porter, could not persuade the nine-person jury that traces of the banned substance found in an April 2016 drug test were remnants from a physician-prescribed dosage he took in 2015. Wilder and Lou DiBella’s attorneys, from the law firm of Judd Burstein, utilized experts who concluded that the meldonium found in the April drug test must have occurred on or after January 1, 2016.
Wilder’s theory of the case was simple. Povetkin took 3 VADA tests at the beginning of April and then a final one later in April. The first three tests did not detect meldonium, while the third showed traces of meldonium. Hence, he must have taken meldonium after January 1, 2016 or else it would have shown up in the earlier tests.
Experts for Povetkin and World of Boxing testified that the raw data of the Povetkin drug tests did not necessarily mean that meldonium was not in Povetkin’s system at the time of the tests. Thus, despite the negative tests, there may have been amounts of meldonium in his system. At trial, Povetkin’s expert testified that the issue with the first three tests was due to ion suppression. Essentially, ion suppression can compromise mass spectrometry, the method of analyzing urine samples in this case.
The 9-person jury did not believe the theory and it took just 32 minutes to decide that Povetkin took meldonium on or after January 1, 2016.
What Is Next?
Povetkin and World of Boxing may be contemplating a motion for a new trial, which must be filed within 28 days after the entry of judgment. In a letter to the court on Sunday, February 12th, prior to the jury verdict, World of Boxing addressed purported “gross and extensive misconduct” engaged by Plaintiffs’ counsel. This included misrepresentation of the record and alluding to facts not in evidence during summation, which included a reference to Povetkin altering his deposition testimony, then improperly giving a personal opinion of the boxer’s honesty and linking it with the motive for the use of meldonium. These are among the reasons that Povetkin and World of Boxing reserved their right to move for a mistrial after the jury verdict.
If this does not happen, Povetkin may file an appeal within 30 days after the entry of judgment.
If there is no appeal, then you would expect Wilder’s counsel to move the Court for an order to release the money from Escrow. However, expect a fight regarding the amount owed to Wilder and DiBella. There was not a winner to the bout so the $715,000 is up in the air. Also, the liquidated damages clause of $2.5 million will still be at issue.