The Rules Regarding Blood That May Put Mayweather-Pacquiao in the Crypt

Paul Haberman Esq.

A Look at the Anti-Doping Regulations That May Kill Boxing’s Mega- Fight of 2010 and How They Would be Adopted for The Mayweather-Pacquiao Bout


It is being widely reported this week that the proposed mega-fight between the two best fighters in professional boxing today, Filipino sensation Manny (Pac Man) Pacquiao and the undefeated Floyd (Money) Mayweather, Jr., tentatively scheduled for March 13, 2010, may now be in serious jeopardy. The reason: Pacquiao does not wish to contractually consent to Olympic-style drug testing procedures. According to Dan Rafael of ESPN.com:


“Olympic style drug testing is more rigorous than the drug testing performed by the Nevada State Athletic Commission [the commission with jurisdiction over Las Vegas’ MGM Grand, where the fight is reportedly now scheduled to be held] and other state commissions. It would involve random blood and urine testing before and after the fight. Nevada commission testing only tests urine for banned substances, only just before the fight and once immediately following the fight.”1


Mayweather, whose father has been quoted in the press since after Pacquiao’s November 14, 2009 bout with Miguel Cotto as saying that he believed that Pacquiao uses performance enhancing drugs, reportedly wants a provision for random drug testing in their bout agreement “to ensure fair play and sportsmanship by both fighters.”2 The Pacquiao camp, in turn, has reportedly stated that Pacquiao has difficulties with taking blood and does not wish to do so in close proximity to the fight.3 Regardless of the rationale, two of the many questions that arise are where exactly does this request find its origin, and what are some of the possible implications and extensions of contracting to Olympic-style drug testing? A quick analysis of each question follows.


The Regulatory Origins of Olympic-Style Drug Testing


2009 World Doping Code


The 2009 World Doping Code (“WDC”), as instituted by the World Anti-Doping Agency (“WADA”), the international anti-doping governing body for amateur sports, mandates that a given nation’s anti-doping agency “[p]lan and conduct an effective number of In-Competition and Out-of-Competition tests on Athletes over whom they have jurisdiction[.]” WDC Article 5.1. All such athletes shall be subject to the “whereabouts requirement” of WADA’s “International Standard for Testing.” Id. The “whereabouts requirement” mandates that an athlete that is selected for out-of-competition drug testing “shall provide accurate, current location information” such that they may be subjected to drug testing at all times prior to a competition.4 This requirement is in place so that a given agency knows where to find an athlete at all times for drug test administration. All such out-of-competition testing “shall be initiated and directed by both international and national organizations.” WDC Article 5.2.5


United States Olympic Committee National Anti-Doping Policies


As inferred above, WADA delegates some of its out-of-competition drug testing to an individual nation’s anti-doping agency. In the United States, the agencies that share that responsibility are the United States Olympic Committee (“USOC”) and the United States Anti-Doping Agency (“USADA”). Under the USOC’s National Anti-Doping Policies, effective January 1, 2009, all athletes that are eligible for inclusion on the United States Olympic or Paralympic Teams shall participate in a “registered testing pool”6 organized by USADA “for a period of at least 12 months before the commencement of the Games, provided, however, in exceptional circumstances, for good cause shown in writing, the USOC CEO may waive a portion of this 12 month period.” USOC National Anti-Doping Policies (“NADP”) at 4. During that 12 month period, their eligibility for participation in a given international competition can be revoked if they test positive for any number of a myriad of banned substances. USADA carves out an exception for “therapeutic use” that includes situations where “emergency treatment or treatment of an acute medical condition was necessary.” 7 While other exceptions exist as well, this particular one could prove relevant to the discussion below, as there has been some history in boxing of “therapeutic use” claims in connection with positive drug testing.


Possible Implications and Extensions of Employing Olympic-Style Drug Testing Before Mayweather-Pacquiao


Despite the fairly long-winded summary of the regulatory foundation of Olympic-style drug testing above, its application in Mayweather-Pacquiao simply means that each boxer would be subject to random drug testing throughout the course of their respective training camps. WADA and USADA would be replaced in this instance by a neutral outside laboratory or agency selected by the camps to conduct the random testing. If the camps fully embrace the rules summarized above, both Mayweather and Pacquiao will be mandated to report where they are at all times to the selected outside laboratory or agency so that the laboratory or agency knows where to send its people for conduction of the random tests. Since this testing requirement would come about by contract and not by any governing law, it could theoretically be up to the camps whether or not to allow for a “therapeutic use” exception.”


If Pacquiao employs a similar training camp as he did for his bout with Cotto, a “whereabouts requirement” would mandate that Pacquiao had to report each and every time that he left Los Angeles, home of the Wild Card Gym, the base of operations for his lead trainer, Freddie Roach, and went over to his training facilities in Philippines, and vice versa. Likewise, should Mayweather decide to train outside of his home base in Las Vegas, at altitude in Big Bear, California, for example, he too would be responsible for immediately informing the designated laboratory or agency. Of these possible scenarios, the trickiest for random testing purposes would be when Pacquiao trains in the Philippines, which could result in sizeable expenses for the promoters if they have to pay to send the testing personnel overseas. However, if Pacquiao were not to be tested during any stay in the Philippines, it would be as if he had his own personal exception to the random drug testing rule for as long as he stayed there.


The possibility of employing the “therapeutic use” exception could potentially open the door to controversy, and indeed has throughout recent boxing history. Notably, former multi-division world champion James (Lights Out) Toney tested positive for the anabolic steroid nandrolone following his unanimous decision win over John (The Quiet Man) Ruiz for the World Boxing Association heavyweight championship in 2005. Toney vehemently denied using steroids for performance enhancement purposes. Instead, Toney alleged that he ingested nandrolone for therapeutic purposes, as it assisted in the recovery from an earlier biceps and triceps surgery. Nonetheless, Toney was stripped of the WBA title and his decision win was changed to a “no-contest” by the New York State Athletic Commission.


Here, a “therapeutic use” exception could prove useful to both boxers. As documented on the HBO Series “24/7” during Mayweather’s preparation for his bout for Britain’s Ricky Hatton, Mayweather’s body apparently requires a host of therapeutic treatments as a result of the wear and tear of his many years of being a top-shelf athlete. It certainly would not surprise anyone if Pacquiao had similar physical ailments, though they have not been documented in any of the “24/7” programs on his bouts. Regardless, if either one sustained an appreciable training injury that could either result in the fight being postponed or the use of an ordinarily banned substance to expedite treatment and preserve the date, Mayweather and Pacquiao would have some decisions to make.


One possible solution would be to incorporate a “therapeutic use” exception alongside a provision for submission to an independent medical examination after or just before the use of a banned substance, so that a neutral outside doctor selected by the aggrieved camp could evaluate the boxer at issue as to the severity of his injury and provide an opinion as to whether they is any alternative to using the banned substance to timely and effectively treat the alleged injury. This could get messy, however, as one party could theoretically then request a second examination by another outside doctor if they do not hear the answer they want. It may also end up being moot, since if the substance at issue is banned in Nevada and shows up during Nevada’s mandatory testing, the fight could be off or the decision changed to a no-contest anyway. More generally, such an examination could be disruptive to a training camp. Nonetheless, if the camps wanted safeguards in place in exchange for allowing a “therapeutic use” exception, and to minimize the controversy generated by any such use, an independent medical examination would be one avenue to consider.


In the end, whether Olympic-style drug testing of any form, or the bout as a whole, takes place in 2010 will come down to no more than whether Mayweather and Pacquiao’s people can iron out this difference over testing, and any others outstanding, in the coming weeks. As it is, the March 13, 2010 date cannot undergo much more delay in being made official, as press conferences have to be commenced, television production organized, and training camps formulated and begun. For the good of boxing’s continued climb back into the mainstream, here’s hoping they work this out soon and that Mayweather-Pacquiao does not get sent to the crypt over blood.

Source: 8countnews.com