Sherk to California: Never Again
Josh Gross Dec 5, 2007
LOS ANGELES, Dec. 4 -- If given the chance to fight in California a
fourth time, UFC lightweight champion Sean Sherk (Pictures) won't say yes.
Almost a half year removed from a positive test for nandrolone, Sherk -- one of 41 mixed martial artists popped for banned substances in the Golden State since a widespread anti-doping policy was implemented in March -- finally had a chance to defend himself in front of the California State Athletic Commission.
"At this stage of my career, there's absolutely no way I'd do
something like that," Sherk said during his opening statement.
An hour later, after the fighter's counsel Howard Jacobs called into question California's handling of Sherk's urine sample and the testing methods Quest Diagnostics -- the state's anti-doping laboratory partner -- applied to it, the Minnesotan learned his fate but failed to find closure.
Julio Ramirez -- who proposed the passing motion and lobbied in previous commission hearings for boxer James Toney and mixed martial artist Phil Baroni (Pictures) to receive similar reductions -- brought Timothy Noonan, Howard Rose and Peter Lopez to his side. Mario Rodriguez joined commission chairperson June Griffith Collison in dissent. Dr. Christopher Giza did not attend.
Sherk, 34, was more than incredulous.
"The commission is the judge, jury and prosecution," said the sitting UFC champion, "so it's real hard to get a fair hearing."
Five days following a decision win over Hermes Franca (Pictures) at the Arco Arena in Sacramento, the state notified Sherk that he tested positive for 12 ng/ml of nandrolone, a ratio six times higher than the accepted Olympic standard.
An appeal date of Aug. 6 was pushed back to Halloween when Jacobs, fresh off representing Tour De France cyclist Floyd Landis, asked for a continuance. Miscommunication between the state and the fighter's camp forced another delay to Dec. 4.
With the commissioners facing a smaller audience than the one that gathered on Oct. 31, Sherk let Jacobs square off with Deputy Attorney General Karen Chappelle and the state's expert witness, Dr. Barry Sample, Quest Diagnostics' director of science and technology.
California's case -- if that's the correct word for what was presented at Tuesday's informal hearing -- was short and to the point: Sean Sherk (Pictures) had steroids in his system at the time of the title-defending fight and should be suspended and fined accordingly.
The onus fell to the appellant.
Jacobs, who added Sherk as a client alongside other embattled athletes such as former track star Marion Jones, hit on four points: a legal question regarding the burden of proof (strict liability versus preponderance of the evidence); chain of custody from the moment Sherk provided the sample through the testing process; testing irregularities at Quest; and the potential for contamination in the multitude of supplements Sherk took leading up to the fight.
On the final point, Sherk's pre-hearing brief and exhibits listed a joint supplement produced by Xyience as having been contaminated with anabolic agents, though not the type he tested positive for in California.
Xyience, a former sponsor of Sherk's, responded by immediately halting shipment of the product and conducting independent tests, which according to a document the supplement company provided to Sherdog.com, came back negative for nandrolone metabolites.
"The problem with supplement contamination is it's really hard to find," said Jacobs, who invoked the words of Travis Tygart, the senior managing director and general counsel for the United States Anti-Doping Agency, in saying that any positive result for nandrolone under 20 ng/ml could come from supplement contamination and should result in a dismissal. "They can vary from pill to pill and bottle to bottle and lot to lot."
Jacobs, using the commissioners as an intermediary, exchanged comments with Chappelle and Sample on the other points, particularly the alleged testing irregularities at Quest.
"He did have the opportunity to basically make a speech, which isn't really the right way to do it, I don't think," Jacobs said of Sample. "If he wanted to testify, he could have testified. I would have loved to have asked him questions."
For the state, Tuesday's hearing in downtown L.A. saw a return to the kind of appeal process it wants to conduct, said the commission's executive officer.
Though Sherk and Jacobs complained they didn't have a chance to offer a proper defense under the rules outlined by the commission -- no witnesses, no direct cross examination -- Garcia suggested the process was entirely "democratic."
"It gives the appellant an opportunity to present his side of the story," Garcia said. "But here's the bottom line, so that we don't have to lose sight of this: We have a rule that says you can't use drugs."
Despite the reduction from one year to six months, most of which Sherk has already served, the current UFC lightweight champion is now a caught steroid user, according to California.
"Once his six months are over and he's paid his fine, he's more than welcome to come to California," Garcia said of Sherk. "He's a great athlete that I think made a mistake, and that's it."
Like Baroni during his hearing in October, Sherk steadfastly denied steroid use while calling into question the commission's intentions.
"I think there should be someone overlooking the commission," said the fighter. "The way they do stuff is very biased. They don't have rules. They don't have regulations. They make stuff up as they go. If you have somebody's life on the line, somebody's livelihood -- this doesn't only affect me; this affects my children -- as respect to a father and somebody who has worked very, very hard to accomplish what I have, at least give me a fair opportunity to defend myself."
Jacobs plans to consult with his client before a decision is made on what line of defense, including challenges in court, to pursue next. But as it pertains directly to the appeals process with the CSAC, their experience is over.
"I think they need to work on their process, I mean obviously," Jacobs said. "I think they should have hearings. They don't have to be trials, but they should be more formal. For a fair hearing you really need the right to examine and cross-examine witnesses, and to do it in that fashion makes it really difficult. Part of a case like this, when you have the head of a lab come in and he says ‘no,' well he should be tested on that, and the only way you can test him is if he's cross-examined, not have him make a statement and I get to respond.
"I think they need to decide what direction they want to go. There's plenty of arbitration bodies out there that could get involved. They don't need to adopt WADA or USADA, but they should probably think about having arbitrators look at the process."
With just a month remaining until Sherk is free to fight, the Minnesotan bristled at the UFC's decision to promote an interim lightweight title bout between B.J. Penn (Pictures) and Joe Stevenson.
Sherk, still expecting to be recognized as UFC champion, will travel to Newcastle, England, to watch Penn fight Stevenson on Jan. 19, two weeks after regaining his eligibility to compete.
One thing is clear, he has no plans of fighting the winner -- or anyone else -- under California sanctioning.
"Absolutely not. No way. It's not even an option," Sherk said. "It won't even be offered to me. I will not fight in the state of California again. No way."
For like-minded competitors, Garcia has a message:
"Don't use any kind of drugs. That's it. Listen, people lose sight of the fact that we have a vast majority of people that get tested are clean. They're clean athletes. This is a critical health and safety issue. Drugs and combative sports do not mix."
Almost a half year removed from a positive test for nandrolone, Sherk -- one of 41 mixed martial artists popped for banned substances in the Golden State since a widespread anti-doping policy was implemented in March -- finally had a chance to defend himself in front of the California State Athletic Commission.
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An hour later, after the fighter's counsel Howard Jacobs called into question California's handling of Sherk's urine sample and the testing methods Quest Diagnostics -- the state's anti-doping laboratory partner -- applied to it, the Minnesotan learned his fate but failed to find closure.
A motion to uphold the yearlong suspension and accompanying $2,500
fine levied by CSAC Executive Officer Armando Garcia went down to
defeat. Two tries later, the commissioners voted 4-2 to halve the
suspension term while keeping the monetary punishment.
Julio Ramirez -- who proposed the passing motion and lobbied in previous commission hearings for boxer James Toney and mixed martial artist Phil Baroni (Pictures) to receive similar reductions -- brought Timothy Noonan, Howard Rose and Peter Lopez to his side. Mario Rodriguez joined commission chairperson June Griffith Collison in dissent. Dr. Christopher Giza did not attend.
Sherk, 34, was more than incredulous.
"The commission is the judge, jury and prosecution," said the sitting UFC champion, "so it's real hard to get a fair hearing."
Five days following a decision win over Hermes Franca (Pictures) at the Arco Arena in Sacramento, the state notified Sherk that he tested positive for 12 ng/ml of nandrolone, a ratio six times higher than the accepted Olympic standard.
An appeal date of Aug. 6 was pushed back to Halloween when Jacobs, fresh off representing Tour De France cyclist Floyd Landis, asked for a continuance. Miscommunication between the state and the fighter's camp forced another delay to Dec. 4.
With the commissioners facing a smaller audience than the one that gathered on Oct. 31, Sherk let Jacobs square off with Deputy Attorney General Karen Chappelle and the state's expert witness, Dr. Barry Sample, Quest Diagnostics' director of science and technology.
California's case -- if that's the correct word for what was presented at Tuesday's informal hearing -- was short and to the point: Sean Sherk (Pictures) had steroids in his system at the time of the title-defending fight and should be suspended and fined accordingly.
The onus fell to the appellant.
Jacobs, who added Sherk as a client alongside other embattled athletes such as former track star Marion Jones, hit on four points: a legal question regarding the burden of proof (strict liability versus preponderance of the evidence); chain of custody from the moment Sherk provided the sample through the testing process; testing irregularities at Quest; and the potential for contamination in the multitude of supplements Sherk took leading up to the fight.
On the final point, Sherk's pre-hearing brief and exhibits listed a joint supplement produced by Xyience as having been contaminated with anabolic agents, though not the type he tested positive for in California.
Xyience, a former sponsor of Sherk's, responded by immediately halting shipment of the product and conducting independent tests, which according to a document the supplement company provided to Sherdog.com, came back negative for nandrolone metabolites.
"The problem with supplement contamination is it's really hard to find," said Jacobs, who invoked the words of Travis Tygart, the senior managing director and general counsel for the United States Anti-Doping Agency, in saying that any positive result for nandrolone under 20 ng/ml could come from supplement contamination and should result in a dismissal. "They can vary from pill to pill and bottle to bottle and lot to lot."
Jacobs, using the commissioners as an intermediary, exchanged comments with Chappelle and Sample on the other points, particularly the alleged testing irregularities at Quest.
"He did have the opportunity to basically make a speech, which isn't really the right way to do it, I don't think," Jacobs said of Sample. "If he wanted to testify, he could have testified. I would have loved to have asked him questions."
For the state, Tuesday's hearing in downtown L.A. saw a return to the kind of appeal process it wants to conduct, said the commission's executive officer.
Though Sherk and Jacobs complained they didn't have a chance to offer a proper defense under the rules outlined by the commission -- no witnesses, no direct cross examination -- Garcia suggested the process was entirely "democratic."
"It gives the appellant an opportunity to present his side of the story," Garcia said. "But here's the bottom line, so that we don't have to lose sight of this: We have a rule that says you can't use drugs."
Despite the reduction from one year to six months, most of which Sherk has already served, the current UFC lightweight champion is now a caught steroid user, according to California.
"Once his six months are over and he's paid his fine, he's more than welcome to come to California," Garcia said of Sherk. "He's a great athlete that I think made a mistake, and that's it."
Like Baroni during his hearing in October, Sherk steadfastly denied steroid use while calling into question the commission's intentions.
"I think there should be someone overlooking the commission," said the fighter. "The way they do stuff is very biased. They don't have rules. They don't have regulations. They make stuff up as they go. If you have somebody's life on the line, somebody's livelihood -- this doesn't only affect me; this affects my children -- as respect to a father and somebody who has worked very, very hard to accomplish what I have, at least give me a fair opportunity to defend myself."
Jacobs plans to consult with his client before a decision is made on what line of defense, including challenges in court, to pursue next. But as it pertains directly to the appeals process with the CSAC, their experience is over.
"I think they need to work on their process, I mean obviously," Jacobs said. "I think they should have hearings. They don't have to be trials, but they should be more formal. For a fair hearing you really need the right to examine and cross-examine witnesses, and to do it in that fashion makes it really difficult. Part of a case like this, when you have the head of a lab come in and he says ‘no,' well he should be tested on that, and the only way you can test him is if he's cross-examined, not have him make a statement and I get to respond.
"I think they need to decide what direction they want to go. There's plenty of arbitration bodies out there that could get involved. They don't need to adopt WADA or USADA, but they should probably think about having arbitrators look at the process."
With just a month remaining until Sherk is free to fight, the Minnesotan bristled at the UFC's decision to promote an interim lightweight title bout between B.J. Penn (Pictures) and Joe Stevenson.
Sherk, still expecting to be recognized as UFC champion, will travel to Newcastle, England, to watch Penn fight Stevenson on Jan. 19, two weeks after regaining his eligibility to compete.
One thing is clear, he has no plans of fighting the winner -- or anyone else -- under California sanctioning.
"Absolutely not. No way. It's not even an option," Sherk said. "It won't even be offered to me. I will not fight in the state of California again. No way."
For like-minded competitors, Garcia has a message:
"Don't use any kind of drugs. That's it. Listen, people lose sight of the fact that we have a vast majority of people that get tested are clean. They're clean athletes. This is a critical health and safety issue. Drugs and combative sports do not mix."
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