11th April 2018

UFC fighter takes legal action against supplement company

Ultimate Fighting Championship (UFC) fighter Josh Barnett is taking legal action against a supplement company, alleging that contamination of Genkor’s Tributestin 750 supplement with ostarine cost him almost two years of potentially lucrative fights. Barnett was eventually issued with a reprimand, after the US Anti-Doping Agency (USADA) accepted that his adverse analytical finding (AAF) was caused by supplement contamination.

The lawsuit alleges that the supplement label did not list ostarine as an ingredient, and subsequent disciplinary action by USADA resulted in lost fight purses, attorney fees and expenses relating to his defence against the charge, repetitional harm, lost endorsement, and emotional distress. The lawsuit (PDF below) also alleges that Barnett has been caused physical harm and emotional distress due to being ‘poisoned’ with ostarine, which is not approved for human consumption.

Barnett tested positive in an out of competition test on 9 December 2016, after which he was provisionally suspended. USADA did not reach a decision in his case (PDF below) until 23 March 2018, which was partly due to the exhaustive process of examining small samples of supplements that Barnett had kept, but also because of USADA’s contention that Barnett’s AAF should be considered a second violation.

USADA contended that Barnett had tested positive for drostanolone in 2009, before the UFC Anti-Doping Policy entered into force on 1 July 2015. USADA argued that as his ostarine AAF constituted a second violation, Barnett’s period of ineligibility should be doubled from a two year to a four year ban.

The Arbitrator, Richard McLaren, dismissed this argument, partly due to the fact that only an A sample was collected from Barnett in 2009, making secondary verification of the AAF difficult. McLaren also argues that at that time, there was ‘nowhere near the level of tools available to an athlete that there now is to assist in the detection of a contaminated supplement by which the applicant believed the adverse CASC [California State Athletic Commission] sample was caused’.

McLaren accepted Barnett’s evidence that Tributestin 750 was not featured on USADA’s High Risk List or Global Drug Reference Online (DRO) at the time of his AAF. ‘However, due to his concerns and belief that the CASC Sample of 2009 had been contaminated, he adopted a practice of keeping each original supplement container he had used and ensuring that a small portion of its content could be retained an analysed’.

This enabled accurate testing of exactly what he had taken. Taking such precautions would appear to be good advice for any elite athlete.

Ostarine contamination

Ostarine is not approved for human use in any country, yet it continues to turn up in supplements. ‘The unfortunate reality is that some dietary supplement manufacturers illegally put ostarine and other SARMs in their products, and some omit ostarine from the label entirely or use misleading names to confuse consumers’, writes UFC/USADA. ‘You should look out for ostarine’s many synonyms, including MK-2866, enobasarm, (2S)-3-(4-cyanophenoxy)-N-[4-cyano-3-(trifluoromethyl)phenyl]-2-hydroxy-2-methylpropanamide, and GTx-024 on supplement labels’.

‘Judo’ Jimmy Wallhead, another UK-based UFC fighter, received a nine month ban in almost identical circumstances earlier this year. However in his case, he was supported by USADA, which was perhaps more ready to accept his explanations given its experience in the Barnett case. The Arbitration ruling posted above points out that USADA added Tributestin to its High Risk List because of Barnett’s case.

“If somebody with a nut allergy died, the company would be responsible”, Wallhead told The Sports Integrity Initiative. “I know that it’s a grey area, but it needs sorting. I’ve lost a lot of money from not fighting last year.”

Food manufacturers are subject to criminal legislation if they fail to list an allergen, such as nuts, on the label. Yet if an athlete loses their career after to a four year ban due to a supplement not listed on the label, manufacturers are unlikely to face more than a slap on the wrist.

In the UK, local authorities are responsible for policing the Food Information for Consumers Regulations, and can issue the manufacturer with an ‘improvement notice’ to amend the labelling. If the manufacturer doesn’t make the amendment, then the local authority can prosecute for non-compliance.

On YouTube, it is hard to separate the snake oil salesmen from genuine user reviews, but the general consensus appears to be that ostarine is effective for people seeking to build muscle and bone strength. This would appear to fit with the medical conditions ostarine was developed to treat in the first place.

Ostarine is a Selective Androgen Receptor Modulator (SARM) developed as Enobosarm by pharmaceutical company GTX to treat conditions involving muscle wastage or osteoporosis. As such, it is designed to target the androgen receptors in the body, so that selected tissues respond as they would to testosterone, without the side effects. This physiological effect also fits with what UFC fighters would be seeking from a supplement.

Not alone

Barnett and Wallhead are not the only athletes who have argued that supplement contamination caused them to test positive. The difference is that in Barnett’s case, he had samples of the exact batch of Tributestin 750 he took, and was able to prove that it was the source of his ostarine AAF.

‘Through a process of cooperation between the Applicant’s manager, Mr. LeLand LaBarre, and USADA personnel, a process of supplement examination and elimination was engaged in by USADA’, reads the Arbitration decision in Barnett’s case (PDF above). ‘That process established that the batch of Tributestin taken by the Applicant was contaminated with Ostarine. USADA was ultimately able to trace the Ostarine to contamination also found in sealed packages of Tributestin that USADA had proceed independently.’

As such, there is a chance that Barnett’s case for damages from the manufacturer could be successful. Unfortunately, not all athletes are as diligent in keeping small samples of everything that they take, should they one day return an AAF.

Barnett’s case will not help British weightlifter Sonny Webster, who received a four year ban for an ostarine AAF, and subsequently spent his life savings attempting to prove that the source was a supplement that he had taken. It will not help Demarte Pena or Gordon Gilbert, who both claim that Biogen’s ‘Testoforte for Stamina’ supplement, which listed only herbal ingredients, caused their AAFs for testosterone, and are currently facing sanctions.

However, Barnett may have an ally in triathlete Lauren Barnett (no relation), who has taken legal action against Classified Nutrition. She alleges that three separate laboratory results confirmed that Neurolytes capsules contained concentrations of ostarine at approximately 150 nanograms per capsule, causing her AAF and subsequent six month sanction.

Jobsworth

In pursuing a ban, anti-doping organisations are doing their job. If an athlete cannot prove that their AAF was caused by a contaminated supplement, then that ADO cannot let them off with a reprimand. To do so would allow any athlete who wanted to take a prohibited substance to make a similar claim.

Because supplement companies seek to develop effective products that they can sell, the danger is that inadequate regulation may tempt them to include prohibited substances not listed on the label. It would appear that the sales rewards from doing this outweigh any current punishment. An label amendment notice from a local authority hardly seems a fair punishment for wrecking an athlete’s career.

At present, it is impossible to conclude that manufacturers are including such substances on purpose, but any lawyer will tell you that proving intent is notoriously difficult. Barnett is seeking a full trial and if that happens, it will be interesting to see if a court considers whether the manufacturer intended to include ostarine in its product. His case does show that a substance not approved for human use and designed to have similar effects on the human physiology to those claimed on the label, is present in a supplement he used.

However, irrespective of intent, the strict liability provisions of anti-doping regulations mean that athletes are suffering for the mistakes of manufacturers. The inadequate regulations applicable to supplements mean that anti-doping organisations have no choice but to punish an athlete who cannot prove that their AAF was caused by a contaminated supplement, even if they believe them to be innocent. In such a situation, the balance of justice appears to be unfairly weighted against the athlete.

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