Opinion: A Retroactive Look at Recent Retroactive TUE Drama

By Jordan Breen Feb 24, 2017

Editor’s note: The views and opinions expressed below are those of the author and do not necessarily reflect the views of Sherdog.com, its affiliates and sponsors or its parent company, Evolve Media.

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Last Friday, the U.S. Anti-Doping Agency cleared featherweight queen Cristiane “Cyborg” Justino in her case stemming from a positive test for spironolactone this past December, granting her a retroactive therapeutic use exemption for the banned diuretic and imposing no punishment.

Two days later during the Ultimate Fighting Championship's Fight Night card in Halifax, cursed UFC flyweight Ian McCall joined Joe Rogan and Eddie Bravo for their “Fight Companion” podcast. In their multi-hour chat session, “Uncle Creepy” revealed that ahead of his ill-fated, canceled bout with Jarred Brooks at UFC 208, he was given intravenous rehydration by UFC officials, despite being banned by USADA rules.

Since the UFC beefed up its drug testing policy and USADA officially began testing its athletes on July 1, 2015, the relationship between the two entities has undeniably, provocatively changed the landscape of this sport's biggest promotion and this sport on the whole. Until now however, we haven't got much of a glimpse at USADA's TUE policy within a UFC context until now. The look we've got is an awkward one, to say the least, with a pair of retroactive exemptions.

McCall, who has had six consecutive, scheduled UFC bouts over the last two years canceled for one reason or another, told Rogan and Bravo that in advance of UFC 208, he was sick and couldn't keep anything down other than water and specifically that the promotion signed off on him getting IV fluids.

“Jeff Novitzky came up to my room, Dr. D [UFC doctor Jeff Davidson], they were all with me the entire time,” said McCall.

Eventually, the fight was canceled on the day of the event and McCall -- a man whose heart once stopped and who spent two days in a coma due to an overdose on GHB, Oxycodone and Xanax -- got another chance to contemplate his mortality.

“The next day, I asked for two more IV bags. I said, ‘Give me two more IV bags and some Zofran so that I can hold some food down, some anti-nausea stuff.’ They were like ‘No, dude, you need to go to the hospital.’ They thought they were going to have to do emergency gallbladder surgery. This whole thing scared the s--- out of me,” McCall told Bravo and Rogan.

“The doctor said, ‘You could die, you never know.’ What the f--- do you mean you never know?”

Now, given the horrific nature of that situation, I think we can all agree that the UFC -- specifically the head of Athlete Health and Performance and the UFC's foremost medical consultant in this case -- did the right thing, on two fronts. McCall has a history of difficult weight cuts and spooky, ominous language aside, it's true: you really never know what a single, isolated bad weight cut could do to your body. McCall should've gotten IV fluids and when he was in dire straits on fight day, the promotion was right to cancel the bout.

However, the nature of McCall's intervention isn't permissible under USADA's rules on IV infusions, at least not without a TUE. You can read up on USADA's IV particulars here, but essentially, an athlete must undergo a medical treatment for an acute condition or a diagnostic investigation that requires an IV in order to not require a TUE in competition. Even in its emergency provision -- for instance, if an athlete is knocked unconscious, acutely injured or can't tolerate fluids orally -- USADA specifies that an emergency TUE application “is required as soon as reasonably possible after treatment has been received.”

Also, USADA's IV infusion rules state as follows:

“IV infusions during home visits, urgent care or after-hours clinics, boutique IV and rehydration services, and doctor’s office visits are not hospital admissions and would require an approved TUE in advance.”

Now, I'm sure there are bizarre folks out there who would want to argue McCall's treatment falls under that last category, but the UFC's justification -- and USADA's, too, when McCall's retroactive TUE application is inevitably approved in the near future -- will be that it was an emergency to treat an acute condition. Maybe you could gripe about the fact there was no mention of a TUE at all until Feb. 22, a week and a half after the events in question, when the UFC gave a statement to MMAFighting's Marc Raimondi detailing the situation and confirming McCall had retroactively submitted paperwork; maybe that's not “as soon as possible” enough for some mega-sticklers.

Incredibly minor beefs aside, McCall's case, in a nutshell, is why retroactive TUE's were conceived of in the first place. McCall wasn't going to some cool IV bar in Southern California weeks out, he wasn't getting home care and there was no reasonably foreseeable element to his acute medical condition. While it sucks to watch a fighter so personally and professionally embattled have his sixth straight fight fizzle over another ailment, this is a nasty situation resolved -- or, to be imminently resolved -- in a smart and cogent way.

Cyborg's situation on the other hand is the messier side of the retroactive TUE coin.

It is the Brazilian's contention that following a difficult weight cut ahead of her 140-pound bout last September, she was prescribed spironolactone to help combat the toll the cut took on her body, and kidneys specifically. While the World Anti-Doping Agency lists spironolactone as a diuretic and a masking agent, there are many legitimate medical uses, such as ovarian cysts, for instance. Cyborg's argument worked and she skated on any punishment.

“After a thorough investigation of the circumstances that preceded her positive test, which included a comprehensive review of Justino’s documented medical history, USADA accepted Justino’s explanation that her use of spironolactone began in late September, following her bout at UFC Fight Night [in] Brasilia, and was in accordance with her physician’s recommendation for the treatment of a legitimate medical condition,” USADA's official statement read.

“Upon notice of her positive test, Justino immediately identified a medication prescribed by her physician for the treatment of a common endocrine disorder as the source of the prohibited substance detected in her sample.”

As BloodyElbow's Iain Kidd has detailed both in his reporting and in this week's “Press Row” segment with me, while spironolactone may have therapeutic use for a variety of conditions, kidney issues are not one of them and in fact, the drug could be dangerous in said situation, making Cyborg's argument questionable, at least if she was having kidney issues after the cut.

Most critically though, it came out this week that Cyborg did not disclose use spironolactone prescription and use to the UFC and USADA prior to the fight. On Tuesday, USADA's Communications Manager Ryan Madden confirmed the news to Combat Sports Blog's Erik Magraken.

“Her use of the medication was not initially disclosed; but more importantly, once contacted by USADA, she immediately identified the medication as the source of her positive test, submitted all necessary medical information and demonstrated that it was being used for legitimate medical purposes without enhancing her performance. Those are the primary considerations when reviewing any TUE application,” Madden wrote in an email.

There is enormous cognitive dissonance here. After her clearing, despite the aforementioned red flags, not many people were doubting Cyborg's explanation; if anything, fans seemed to be mostly happy that one of the best women in MMA history was free and clear to finally fight at a healthy weight and could line up a date in future with newly-crowned UFC featherweight champion Germaine de Randamie. At question is simply whether or not Cyborg disclosed her spironolactone use, which she hadn't. This is still a punishable offense and what is the point of having rules if they aren't enforced?

Like the MMA masses, I'm hardly mad that Cyborg will return to the Octagon sooner rather than later, but there is no avoiding the fact this is preferential treatment of an athlete. If Cyborg wasn't a key piece of a division the UFC just launched with almost no talent, if the promotion wasn't dying for charismatic, exciting, sellable fighters right now, if she was just some roster fighter, it's hard to believe she wouldn't have caught some sort of punishment. For instance, while I'm aware he's now flunked two USADA tests, UFC welterweight George Sullivan took to Facebook four weeks ago to say that his most recent blown test was due to a fertility drug he was taking to help he and his wife conceive. I don't expect USADA to look upon Sullivan so favorably and wouldn't expect it even if this was his first offense.

It's not like this is the first time USADA has been accused of favoring a star, given the blow-up over its handling of Floyd Mayweather's IV use prior to his bout with Manny Pacquiao. However, given that Cyborg's offense happened in December, the fact that USADA ostensibly bought her argument and she had proper medical paperwork, they could've given her a six-month suspension for failing to disclose her use, retroactive to December. She could be free to fight by late June, which is when she may end up fighting anyhow if she waits for a title shot against de Randamie. USADA could've looked like the same rules apply to everyone evenly, while ultimately not punishing Cyborg in any serious or undue fashion.

TUE's, including retroactive ones, aren't going anywhere, nor should they. However, even if all sports fans have become accustomed to star athletes getting star treatment, if USADA wants its relationship with the UFC to maintain the veneer of respectability and legitimacy it is actively seeking to create, it can't be so flagrant, so transparent in judgments like this. After all, if the reason Cyborg got off easy is really because is a bit of a name with some star potential and because the UFC is so desperate for draws right now, it's a reminder that the company has some problems on its hands, nevermind WME-IMG paying back that $4 billion. For the UFC, and resultantly, USADA, the less potential drama to deal with at this point in time, the better.

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