Monthly Archives: December 2014

The curious case of Cung Le: was the UFC middleweight defamed by his employer?

Cung Le was kicked, punched, bruised and beaten in front of 7000 bloodthirsty fight-fans at the Cotai Arena in Macau, China on Aug. 23rd, 2014. But things got a whole lot worse for him after the fight.

After a hard fought battle against his opponent Michael Bisping, the two UFC middleweight fighters returned backstage where they immediately submitted blood samples to be tested for performance-enhancing drugs. Le’s results eventually came back positive.

“UFC middleweight Cung Le tested positive for an excess level of Human Growth Hormone in his system following his fight,” said Zuffa, LLC, parent company of the UFC, in a press statement released on Oct. 1st. “The UFC has a strict, consistent policy against the use of any illegal and/or performance-enhancing drugs, stimulants or masking agents by our athletes. Le will serve a nine-month suspension and, at its conclusion, will need to pass a drug test before competing in the UFC again.” Shortly after, the UFC increased Le’s suspension to 12 months.

The mixed martial arts community erupted into a plethora of “shame on you’s” and “I told you so’s” due to prior speculations of Le’s steroid use. At 42 years old, Le is no spry chicken, but his age seemed to have little to no effect on his body after he posted pictures online of what was a noticeably advanced physique only a few weeks before the fight.

“It’s funny how his genetics seem to have kicked in at 42,” said Le’s opponent Bisping just days before the fight. “I’m sure he trained hard his entire life, but he never had a physique like he has now in his 20s or his 30s. But he’s got there in his 40s.”

“I hope he doesn’t piss hot on Saturday night.”

And sure enough, Le pissed hot, vindicating MMA’s rabid world of keyboard warriors who raised their eyebrows just as high as Bisping did after seeing those pictures. All major sports media outlets covered the story when the news broke, and within a days time Cung Le was known worldwide as a PED user.

But that didn’t stop him from denying the allegations. Le wouldn’t go down without a fight.

“I was completely surprised at the results of my recent drug test,” said Le in a statement following the UFC’s decision. “I tested negative for Anabolics, Stimulants, Diuretics, Masking Agents and my Testosterone levels were within World Anti- Doping Agency and Nevada State Athletic Commission Approved limits a total of three times over two urine tests and a blood test collected both before and after my fight, which is what makes these hGH result so difficult for me to accept as correct.”

Le then decided to exercise his right to appeal the one-year suspension. The appeal was to be the first one ever conducted directly against the UFC.

And the argument in Le’s favor was solid:

In the absence of governing athletic bodies, the UFC self-regulates its athletes. Thus, given that the fight was held in Macau, the onus was on the UFC to test its own fighters for PED’s. The organization contracted the Hong Kong Functional Medical Testing Center to administer the tests.

However, The Hong Kong center is not accredited by the World Anti-Doping Agency, the global leaders in performance-enhancing drug testing.

Le and his representatives asserted that the Hong Kong center didn’t dig deep enough, that they hadn’t taken into consideration other factors that might have lead to the ‘abnormal level’ of hGH.

Of course, Le did test positive for elevated levels of human growth hormones. But hGH is known to fluctuate naturally in the body, especially after, say, a testosterone-fuelled cage fight.

In reference to a study published by the British Journal of Sports Medicine, Le’s hGH levels fell within the regular limits of an athlete engaged in prolonged physical activity.

Soon after, Le had amassed an army of doctors that were critical of the procedure.

“I think [the test done by the UFC] is useless,” said acclaimed anti-doping scientist Don Caitlin. “I wouldn’t pay attention to it at all.”

And then things got even crazier. Three weeks after news broke of Le’s suspension, the UFC obtained “medical advice” indicating that the tests results could not prove Le was on PED’s.

On October 21st, the organization rescinded Le’s suspension on the grounds of inconclusive test results. Le’s landmark appeal would never even make it to the courts.

Le has since stated that he feels vindicated by the UFC’s decision, however the organization has never issued an apology.

And now, the question on everyone’s mind is ‘will Cung Le sue the UFC?’

“Their decision to announce me as a user of performance enhancing drugs with little thought to the accuracy of the testing or proper procedures has caused my family and I great pain that we have now come to know was completely unnecessary had the proper care been taken to ensure my test results were in fact valid proof of impropriety,” said Le, in his first press statement since the matter.

If Le were to pursue legal action against the UFC, it would likely be on the grounds of defamation.

Defamation refers to false statements made about an individual that works to harm the individual’s reputation among the reasonable thinking people of society. Defamation falls under tort law, meaning that it is a civil wrong in which one person was unfairly harmed and deserves compensation.

Generally speaking, in order for defamation to occur, the defaming party must negligently or maliciously issue a false statement that is publicized while the statement in question needs to have damaged the defamed party’s reputation.

First and foremost, Le’s reputation has undoubtedly changed, as many MMA fans worldwide still suspect he is on PED’s despite the decision being rescinded. Not to mention, athletic sponsorships like to steer as far away as possible from the letters P-E-D.

Furthermore, according to ICBC Personal Injury Claims lawyer Erik Magraken, the UFC’s initial statement can be read as false as it hinges on the direct claim that Cung Le tested positive for excess levels of human growth hormone.

“If the levels were increased from resting but consistent with the findings one can expect after a rigorous MMA bout the statement may be false,” said Magraken. It is a fact that Le’s hGH levels are consistent with that of an individual engaged in prolonged physical activity. It also seems clear that, given the UFC’s choice to rescind the decision, they have acknowledged that their initial claim was false.

According to Magraken, the UFC’s initial press statement can also be read as negligent. Given that they rescinded Cung Le’s suspension after they received medical advice begs the question as to why they didn’t seek medical advice before making said statement. Given the controversy surrounding the use of unaccredited regulatory bodies as well as the breadth of arguments Le and his representatives brought up after the positive test result was made public, pursuing further medical advice once the result came in might have been the best course of action for multi-million dollar company.

The UFC’s best defence, should Cung Le pursue legal action, is qualified privilege. Qualified privilege allows for such comments to be made on the grounds that they were not malicious or reckless, that there was a significant degree of due diligence behind them, and that they are a matter of public interest.

Under qualified privilege, it would be argued that their public statements were the result of adequate testing methods and a public interest in the major issue of professional sports and performance enhancing drugs. The UFC holds itself to the standards of the Nevada State Athletic Commission, and therefore issues press releases every time an athlete tests positive for performance enhancing drugs. Le’s case was treated no differently.

However, the deal-breaker might be that the UFC violated its own code by failing to adhere to NSAC standards when administering the drug tests in the first place.

“Le has two years to take action under Nevada Law,” said Magraken. “Given that he is in the twilight of his career, it would not be surprising if he turns to the courts to seek damages for the harm this has taken on his reputation.”