Few Answers, Many Questions Following Hearing

By Josh Gross Nov 2, 2007
LOS ANGELES -- For the second time in three months, the California State Athletic Commission ignored the recommendation of its executive officer by voting to reduce the suspension of a fighter who tested positive for steroids.

While many expected UFC lightweight champion Sean Sherk (Pictures) -- who stood accused of having nandrolone metabolites in his system during a July 7 title defense in Sacramento -- to be the recipient of a shortened sentence, it was middleweight Phil Baroni (Pictures) who walked away eligible to fight at the start of 2008.

At the Junipero Serra State Building on Wednesday in Downtown Los Angeles, commissioner Julio Ramirez capped a long day of hearings marred by a chaotic process when he offered into motion a vote to halve the one-year suspension CSAC executive officer Armando Garcia originally levied against Baroni, all the while keeping a fine of $2,500.

Ramirez, who in August spearheaded the reduced suspension of boxer James Toney from 12 to six months, was one of three commissioners to vote in favor of the motion -- the third called in 10 minutes as the six-member group attempted to find a solution -- while two opted against the measure and another abstained.

Baroni was one of 33 mixed martial artists that California accused of using banned substances between March and September of this year. Following a summer loss to Frank Shamrock (Pictures), he was notified that his urine sample contained anabolic steroid metabolites for boldenone and stanozolol.

Four months later, an impassioned Baroni testified that he had never taken steroids. With manager Ken Pavia leading the charge, Baroni's camp attempted to discredit the findings by Quest Diagnostics, a drug testing group that carries out 10 million tests a year for private employers across the United States and is used by California to monitor fighters.

Showing four separate negative drug tests for anabolic agents, including one Sherdog.com documented July 11 in Las Vegas, Pavia appeared to create doubt amongst the commissioners that his client had intentionally cheated.

Dr. R. H. Barry Sample, the Quest Diagnostics director of science and technology, was one of three experts to give lengthy presentations on steroids before the commencement of Wednesday's hearing. He was brought in from Georgia to testify on the chain of custody and testing procedures of the lab. Baroni put him on the defensive, particularly after the revelation of his final test.

Baroni had asked that the remaining urine from the test conducted by Quest be sent to The Carlson Company, a laboratory located in Colorado Springs, Colo. While it didn't appear among the 40 facilities recommended by the CSAC, Carlson appealed to the fighter as a rare lab that tested for both DNA and steroids.

Proving the urine was free of steroids wasn't enough; Baroni wanted to find out definitively if the sample came from him. Though there wasn't enough of a sample for the lab to determine the identity of its owner, Carlson apparently had enough to determine the sample they received from Quest did not contain boldenone or stanozolol metabolites.

"We don't know why he tested positive with Quest Laboratories in California," said Baroni's manager Ken Pavia. "But we do know that subsequent tests with that sample came back negative."

Karen Chappelle, lead supervising deputy attorney general for California, questioned the credentials of the Colorado lab and picked away at Baroni's first independent test, which occurred before he fought Frank Shamrock (Pictures) and on which his fiancée's name appears as the test taker.

Baroni is eligible to fight in January and should compete on the first Strikeforce card of next year, yet in the wake of the hearing and appeals process, the middleweight said he was "scared to fight [in California]. I never had a problem before. I don't know what precautions I can take because I didn't take those substances I was penalized for.

"My name is always going to have an asterisk as a steroid user and a cheater, and I'm not," Baroni said. "That's why I spent all this money and whatnot, to get my name cleared."

For his part, Sherk is hoping to simply get a fair shake on Nov. 13.

"I was real confident coming in here that the facts would speak for themselves, but after today I'm not so sure now," he said.

Like Baroni, Sherk knows he might have to live with the stigma that comes with being considered a known steroid user.

"I want to clear my name," he said. "I don't want this attached to me. And I want to fight as soon as possible. This is how I make a living. I've got a family. I've got a title -- something I've worked for my whole life, so obviously that's real important to me. Both of them are equally as important."

During his short time in front of the commission, Howard Jacobs, Sherk's counsel who has also represented high-profile drug defendants Floyd Landis and Marion Jones, attempted to deconstruct the chain of custody and establish why Sherk's urine was delivered to Quest three days after it was collected.

Jacobs hammered away at the competence and expertise of CSAC inspectors before learning that a "pre-hearing brief and exhibits" he filed Friday evening had not made its way from Garcia, Chappelle or associate governmental program analyst Bill Douglas to the commissioners.

Garcia said the e-mail sent on Oct. 26 contained a file their office could not open, but he declined to comment further on Wednesday's proceedings. Chappelle, said Jacobs, was the only person to request a hard copy, which she received Tuesday.

"I think this process needs a lot of work," Sherk said. "You've got peoples' lives on the line. Peoples' livelihoods. Things people have worked really hard for."

Chappelle acknowledged that "kinks" in the process was the reason Sherk's hearing had to be postponed to Nov. 13.

"I wanted to jump up and say you're damn right you have some kinks," said Sherk, who said he has paid close to $20,000 in legal fees and lost up to half of a million dollars in fight and sponsorship money while sitting on the sidelines. "They know they have kinks, but they're 100-percent confident in their process, obviously. Whether they have kinks or not, it's my responsibility and my lawyers responsibility to find those kinks and prove to them their process needs work, because even though they say it, it doesn't mean everything."

To that end, Jacobs' pre-hearing brief, a copy of which Sherdog.com obtained, lays down two possibilities for the positive test of nandrolone metabolite. The first comes with the potential of serious testing irregularities by Quest Diagnostics. Jacobs alleges several testing flaws, both in the chain of custody between CSAC and Quest, as well as in testing procedures inside the lab.

During testimony, Dr. Sample stood by the lab's results.

If the commission deems Sherk's sample contained banned substances, Jacobs will argue it could have resulted from the many supplements the Minneapolis-based fighter ingested leading up to the fight.

Seven tests totaling $3,000 were conducted on supplements Sherk took before his bout against Hermes Franca (Pictures). One such product was the Xyience-branded "Xyience Xtreme Joint Formula." Five capsules were analyzed according to a report supplied by Don H. Catlin, M.D., president and CEO of Anti-Doping Research, Inc.

"No anabolic steroids were detected in four of the capsules," Catlin wrote. "In one capsule 1-androstendione was identified."

As for the one capsule of "Xyience Xtreme Joint Formula" in which 1-androstendione was identified, the company said it has halted all shipments of the product until it can conduct independent testing by a certified lab.

"While we are confident that Xyience products do not contain anabolic agents or any illegal substances," said Susan Wierzbicki, Director of Quality Assurance, Xyience, "we are taking this report very seriously."

Asked if he intended to blame Sherk's positive steroid test on the Xyience product, Jacobs answered, "Not specifically, no."

Jacobs explained that it was only his intention to show over-the-counter supplements can be contaminated.

In this case, the supplement company is a major advertiser for Ultimate Fighting Championship events and just announced a three-year extension with the MMA promoter on Oct. 13; it also sponsored Sherk before the two parted ways over money issues.

In addition to the alleged testing irregularities and potential supplement contamination, Sherk also submitted himself to a polygraph test.

"It's not the central part of the case, but I think it's important given that it's not, in my view, a strict liability standard," Jacobs said. "You have to weigh the evidence. You have one test that's their urine test and you have a polygraph on the other side. If they have to prove he used a drug or administered a drug, the fact that he was found to be truthful when he said he didn't use it should be relevant."

The commission is slated to rule on the admissibility of a polygraph examination within a week.

Having just completed his process with the commission, Baroni said he will watch closely as Sherk's drama plays out.

"I would like to see him get vindicated," Baroni said of the lightweight. "That would almost be like me winning. I know I didn't do it and I believe he didn't do it."

Sherdog.com reporter Adam Swift contributed to this report
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