Tuesday, November 27, 2007

Justice for All? A Retrospective on the Phil Baroni Steriod Appeal

On Weds Oct. 31 Mr. Baroni, his agent Ken Pavia, his lawyer Raffi Nahabedian, and my self (associate agent and newly licensed attorney Nathan Brodnax) participated in an administrative hearing in front of the California State Athletic Commission in an attempt to clear Phil of steroid charges. What follows below is a brief description of the factual circumstances surrounding Phil's positive steroid test, the events that took place leading up to the steroid appeal, and the debacle that was the CSAC hearing itself.

Round 1 - Factual Background

In preparation for his title fight with Frank Shamrock, Phil trained like a maniac. He spent hours upon hours in the gym and ate a ridiculously restricted diet. In order to help himself cope with this strenuous routine Phil took many supplements during his training (nearly seventy in all). A few weeks before the fight was to occur Ken (Phil's manager/agent) noticed a statistic on the CSAC website stating that 15% of over the counter supplements may result in false positives for steroids. Aware of how many supplements Phil was taking, Ken advised Phil to take a pre-test to ensure one of the many supplements he was taking didn’t cause a false positive on fight day. Phil resisted this idea at first, but after Ken noticed that one of the supplements Phil was using warned that the product may result in a false positive for steroids, Phil changed is mind.

This event led Phil to acquiesce to Ken’s request to take a steroid Pre-test. However, worried about the occurrence of a false positive, and not wanting to have a positive steroid test floating around with his name on it, Phil took the test under a false name (his fiancé’s name, Angelo Beck (her name being “Angela Beck”)). This test, taken on June 13th, 2007 (nine days before his fight on June 13th) came back negative for all steroids.

Assuming that he was in the clear regarding false positives, Phil proceeded to prepare as normal for his fight. The day before the Shamrock fight (June 21), Phil gave a urine sample as required by the CSAC. On the form that accompanied the urine sample there is a question which asks “what supplements did you take in preparation for this fight”. Of course you are only given one four inch line to answer this question, so Phil did not list the 67 supplements he had taken in preparation for his fight, rather he gave his answer in broad terms, such as “protein, gamma-o, vitamins, greens” etc.

After his fight on June 22, Phil was informed by way of a letter sent on July 3, 2007 that he had tested positive for Boldenone and Stonozolol, two veterinary steroids not found naturally in the human body. Upon hearing this news Phil was totally blown away and confused. Not only did he know for sure that he did not take those drugs, he had even taken a pre-test weeks before to ensure no false positives would occur. After racking his brain Phil consulted with Ken and together they decided that Phil should take another test to see if those drugs were really in his system. Thinking back to the threatening email received by the commission Phil and Ken were concerned that maybe Phil had been drugged unknowingly sometime after his pre-test by someone with a vendetta against Phil. This self test, administered on July 9th also came back negative for all steroids, including Boldenone and Stonozolol.

With this information in hand Ken and Phil decided that Phil should take another test under more controlled circumstances to more accurately document his negative test results. To this end, Josh Gross form Sherdogg/ESPN was contacted. He and a Physician named Dr. Frank Stile, watched and filmed Phil urinate into a cup, which was then handed to Dr. Stile and shipped off to a lab for testing. Again, this test came back negative for all steroids across the board.

Now Ken and Phil were thoroughly convinced a mistake had been made. The most likely one they could think of was that the lab (Quest Diagnostic) had some how switched Phil’s sample with someone else’s. To this end Ken and Phil decided to have Phil’s sample DNA tested to ensure that it was in fact his urine. However there was not time to get the sample released before the CSAC steroid appeal on Aug. 6th, 2007. Thus, at the Aug. 6th CSAC hearing we requested and were granted a continuance by the CSAC in order to prepare our case.

Here I would like to give a brief description of the Aug.6th hearing so as to contrast it later on with the Oct. 31 hearing. The hearing in Aug. was very informal. There was a podium which the fighters stood at and made their argument/admission to the commission. If fighter wished to present evidence to the commission, they simply handed it to the commission for discussion/review, no formal evidence admission processes were observed. There was no opposing counsel or prosecutors, just a person from the CSAC to testify as to the integrity of the sample collection process. All decisions were made via majority decision by the commission; no single person controlled the proceedings. If a commissioner had a question they simply asked the fighter. Also present as a commission panelist was Mrs. Karen Chappelle, a representative from the Attorney General’s office. Acting as an objective non-voting member during the Aug. 6th hearing, Mrs. Chappelle’s role would change greatly at the Oct. 31 hearing.

The proceedings on Aug. 6th were very informal and a bit disorganized, but things proceeded rather smoothly. The commission seemed to be rather strict in their enforcement of steroid suspensions, giving maximum sentences to the first three mixed martial artists that made appeals (this includes one MMA fighter who actually had a doctor’s prescription showing the steroids he tested positive for were prescribed for an injury). It wasn’t until the final appeal, for one James Toney, a champion boxer, that the commission gave any ground. Mr. Toney’s defense consisted of a vehement denial on his part, coupled with verbal threats and profane language directed toward Dr. Giza, the one commissioner who challenged his defense that vitamin supplements had caused some type of false positive. The only evidence Mr. Toney had for this claim was receipts showing he purchased the vitamin supplements. In spite of this weak defense and a verbal outburst, Mr. Toney was the only person that day to get a decreased sentence (a reduction from a 1 year suspension to 6 months).

During the interim period between the Aug. 6th hearing and the Oct. 31 hearing we were busy working to prepare Phil’s case. After extensive research we were unable to find what rules of procedure and evidence govern CSAC hearings. Thus, we requested from the commission the procedural rules governing the hearing to as to better prepare our case and the manner in which we were to bring in evidence. These requests were acknowledged, but were never answered. We also requested the commission turn over to us all evidence and/or documents in the possession of the government pertaining to Phil’s case. These requests too were acknowledged, but such evidence was never provided to us. Finally, we requested that Mr. Baroni’s urine sample be released to an independent lab for DNA testing. After much research we were only able to find one lab that with the ability to test urine for DNA.

The request to release Phil’s sample was originally made to Quest Labs, but was denied under the auspices that the request had to come from the CSAC. We then made repeated requests to the CSAC to have Phil’s sample forwarded to our independent lab. After a great deal of back and forth, we were informed that the CSAC would not release the sample because the lab we had chosen for independent testing was not certified by the Department of Health and Human Services (DHHS). This in fact was not true, so we contacted that lab, named Carlson Inc., and had them forward to the CSAC their DHHS certification. Upon receiving this certification however the CSAC then refused our request stating that Carlson was not on a list of CSAC approved labs. This was the first we heard of this list of some 40 labs (mind you, by this time we are only 2 weeks away from Phil’s Oct. 31 hearing and had been attempting to get his sample released for nearly three months). We then called every lab on the list and determined that none of them tested for DNA and steroids. Finally, upon learning this, the CSAC agreed (barely more than one week out from the hearing) to release the sample to Carlson for testing. However, they released it with the instructions that we were only to test the sample for DNA, and not for steroids (even now we are unclear why they gave this instruction).

At Carlson it was determined that there was insufficient DNA in the urine to determine if the urine was Phil’s or not. However, Carlson informed us that there was sufficient urine left in the sample to retest it for steroids. With only a few days left to the hearing and with nothing to lose, we decided to have the sample retested for steroids. Surprisingly, the test came back NEGATIVE for ALL steroids, Boldenone and Stonozolol included. This test, coupled with the three other negative tests Phil had taken (including the one under a controlled environment taken in front of witnesses) told us decisively that something had gone wrong with Phil’s test at Quest laboratories. However, with only three days to prepare for the hearing, it was too late to determine when or where the mistake had been made. With four negative tests in hand we prepared for Phil’s hearing as best we could.

Round 2 – The CSAC hearing

Unable to find any regulations regarding procedure, and offered no help in this regard from the CSAC, we prepared for the hearing on Oct. 31 operating under the belief that the hearing would be conducted in the same manner as the Aug. 6th hearing. Thus we prepared to make an informal presentation before the commission of all the evidence we had accumulated showing Phil’s innocence. Unbeknownst to us, the leniency shown by the CSCA to James Toney at the Aug. 6th hearing resulted in a lot of flak for them from the public and from the Attorney General’s office. In response to this outcry the Attorney General’s office took steps to ensure the commission would be much stricter in their enforcement of suspensions.

The morning of the hearing the first major change I noticed was that a lawyer from the Mrs. Chappelle, an attorney from the Attorney General’s office was sent to act as opposing counsel on behalf of the government. As mentioned above, at the Aug. 6th hearing Mrs. Chappelle had sat on the CSAC panel as a non-voting member and she was now our opposing counsel for the hearing. Possible conflict of interest issue aside, this arrangement gave the Oct. 31 hearing a much different dynamic than the Aug. 6th hearing. Rather than being an informal hearing where the information was provided in the form of a presentation to the commission, the process was now an adversarial proceeding in which Mrs. Chappelle would attempt to block and debunk our case at every turn. This change in structure was very shocking to us, as we had prepared for a presentation, and instead we were surprised with a trial.

Perhaps the most baffling part of the day’s proceedings on Oct. 31 occurred before the formal appeal hearings even began. At the opening of the CSAC meeting, Mrs. Chappelle was allowed to put on a 2 hour presentation in front of the commission touting the evils of steroids, and steroid users. Mrs. Chappelle even went so far as to begin the presentation by stating that its purpose was to ensure the CSAC did not show the same type of leniency in this hearing, that it had in the Aug. 6th hearing.

Much of this presentation was ridiculously prejudicial and inflammatory. The first two presenters provided little in the way of actual scientific information and rather delivered long diatribes full of rhetoric about how steroid use in professional sports results in thousands of children using steroids. One presenter even quoted excerpts from a book “Death in the Locker Room”, a book about how a teenage athlete dies from steroid use. Furthermore, the thrust of one presenter’s arguments was that the current CSAC suspension of one year was insufficient and that persons testing positive should be suspended for two years rather than one year because that is how the Olympic Commission does it. Of course this presenter failed to point out that Olympic athletes only compete in the Olympics every four years and that they are still allowed to compete in their home countries. This argument had nothing to do with professional mixed martial arts fighters and had even less to do with whether or not Phil was actually guilty. It only served to encourage the commission to impose a harsher sentence.

As a law school graduate, and a person who has sat in on various trials and court hearings, I cannot begin to explain to you how shocked and amazed I was that this unfair and prejudicial practice was allowed. In courts of law, evidence is routinely excluded from court if its probative value is outweighed by its prejudicial effect. Here the probative value of this information was so low, and its prejudicial value was so high, that I am certain that if this had been a case in a real court, such a presentation would never have been allowed. To draw an analogy, it was like allowing Mothers Against Drunk Driving (MADD) to give a two hour presentation to the jury on the evils of drunk driving and the need for harsher punishment of drunk drivers before the start of a drunk driving case. The vast majority of information provided had nothing to do with the facts of the cases at hand and served no purpose but to prejudice the commissioners against any person with a positive steroid test.

What little scientific information that was provided during this presentation was given in a 45-60 minute presentation curtsey of Mrs. Chappelle’s steroid “expert” from Quest Laboratories. This too was totally unfair and prejudicial. By allowing this to occur the DA was provided with nearly an hour of unchallenged, non-cross examinable testimony by her expert to the Commission. We were unable to challenge anything stated by this “expert” during his power point presentation which we might disagree with. Furthermore, this was also very prejudicial in that it placed the Mrs. Chappelle’s “expert” in a position of absolute authority regarding matters related to steroids and steroid use. This is not true, while he was a well qualified doctor with experience in drug testing, he is not a specialist in the area of steroids or steroid use and it was deceptive to hold him out as such.

This presentation however was just a taste of things to come. As we would soon see that little show was not the only step taken to ensure stricter enforcement and punishment by the CSAC.

We were to be the first case of the day. As usual in court proceedings, the prosecution presents their case first. However, at the opening of her case prosecutor Chappelle referenced a packet of materials she had prepared and distributed to the commissioners. We had never been provided with this packed, despite our numerous requests for all information pertaining to Mr. Baroni’s defense and as such requested a few minutes to look it over. However this request was initially refused by the commissions acting “judge” on all legal matters, one Mr. Walker. (Mr. Walker was a lawyer sent from the Department of consumer affairs to act as the legal decision maker for the hearing). We raised a second objection and again were denied. However, due to concerns over fairness raised by Commissioner Noonan we were thankfully allowed time to look the packet over. In the interest of fairness we took this opportunity to provide Mrs. Chappelle with our own packet of information which we had also provided to the commissioners that day, allowing her time to look it over.

Things continued much the same way for the entire hearing. Throughout the process, the rulings issued by Mr. Walker were blatantly one sided. Objections, requests and concerns raised by Mrs. Chappelle were addressed and supported, while we were constantly shot down and reprimanded. Throughout the process I felt Mr. Walker’s objectivity was questionable. Furthermore, many people present that day questioned the legality of allowing a lawyer to make evidentiary and procedural decisions normally reserved for a judge.

We began the presentation of our case by allowing Phil to testify and tell the commission in his own words that he was innocent, and that he didn’t ingest the drugs. Phil did a good job and made a heartfelt plea to the commissioners.

In her cross examination of Phil however Mrs. Chappelle attempted to cross examine him on matters that were totally outside the scope of Phil’s direct examination testimony. She began picking through the packet we had given her earlier and pulling out pieces of evidence we had not yet introduced in order to cross examine Phil on them. This I found very objectionable as anyone with a rudimentary understanding of court procedure knows that cross examination is to be limited to those matters brought up on direct examination. As such Phil’s lawyer Raffi Nahabedian made a well spoken, well phrased and legally concise objection to this attempt, explaining how prejudicial it would be to allow the opposing side to present our own evidence in this way. Of course this objection was over ruled by Mr. Walker and Mrs. Chappelle was instructed to continue her questioning. Flustered Raffi asked what code or rules of evidence Mr. Walker was relying on in making his decisions. It was only then that we were told the true of the proceedings. We were informed by Mr. Walker that there were no rules governing this proceeding and that the rules governing the proceedings were whatever he [Mr. Walker] said they were. I know that sounds like a ridiculous misquote, but I assure you once the transcript of the hearing is posted online you will be able to verify it yourself.

This ruling by Mr. Walker did a lot of damage to our case. Rather than being able to give a good explanation and prompt before introducing Phil’s pre-test (the one with his fiancé’s name on it), it was brought out as a bombshell by Mrs. Chappelle while cross examining Phil and used to discredit him, us, and our entire argument. From then on out we were struggling to do damage control. It was apparent throughout the proceeding that Mr. Walker intent and purpose was to ensure Phil received the full sentence and not to act as an impartial fact finder.

That one statement by Mr. Walker regarding the rules governing the proceeding pretty much sums up the hearing as a whole. The procedural rules were whatever he said they were. Throughout the day it became increasingly clear that there was little rhyme or reason to anything the commission did. With no formal rules of procedure or evidence, everything was up for debate, a debate that we usually lost. To use a sports analogy, arguing this case was like playing a basket ball game with a referee that changed the rules after every basket was made. It was next to impossible to mount any type of viable offense or defense.

Following the debacle with Phil’s pre-test we were allowed to continue presenting our case. We made our arguments and offered into evidence the three subsequent tests Phil took to clear his name (including the re-test of the original sample given at the time of his fight).

The first post fight test that was self administered by Phil at home was objected to by Mrs. Chappelle for lack of foundation. However, even after extensive attempts to lay the foundation on the part of Raffi by questioning Phil regarding the test and the testing process, the objection was still sustained because Phil did not have first hand knowledge as to the chain of custody of the lab that conducted the test. This was especially frustrating for us since the Quest Diagnostic lab results were allowed in based upon the testimony of Quest’s “expert”, even though he was not present at any time during that test and had no first hand personal knowledge of the chain of custody.

The second post fight test that was administered in front of a doctor and a reporter was also challenged for lack of foundation. This time we produced a signed affidavit and a notarized letter given to us by the Dr. who collected the sample, certifying that the collection process was done in accordance with all state protocols and that the chain of custody was maintained. A ruling on the admissibility of this test was never issued however as we were instructed by the commission after much debate to proceed with the presentation of our case.

Finally we pulled out our ace in the hole. We introduced our retest of the sample collected before Phil’s fight. Again, this was objected to due to a lack of foundation. We produced a signed letter from the lab technician at the Carlson Lab, certifying the validity of the lab results, and the integrity of the chain of custody. We were also able to examine Bill Douglas (the commissioner who ordered the release of the sample from Quest Labs) and the “expert” from Quest, both of whom supported our claim that the original sample was released and shipped to Carlson to be re-tested, and that the report we were trying to get in was indeed the result of that re-test. With this overwhelming mountain of proof on our side, Mr. Walker finally had to allow this test in as having proper foundation.

With adequate foundation laid for the final test result, Mrs. Chappell objected again, this time on the grounds that there was insufficient evidence of the chain of custody to allow in this final re-test. Of course, this being the most important steroid test, this objection resulted in the most heated argument thus far. We had done painstaking work to document the chain of custody for this test. Included in the packets handed out to each commissioner was the chain of custody release form issue by Quest Labs showing the sample was sent to Carlson Labs. Also in the packet was a signed letter from the lab tech at Carlson attesting to the chain of custody and the integrity of the test results. We also had Carlson photograph and document the entire testing process. These photographs were included in the packet as well. Initially Mr. Walker was going to find this test inadmissible as well due to insufficient chain of custody; however pressure from the commissioners resulted in the test being allowed in.

Finally, with a valid, documented test staring the commissioner’s plain in the face, they had to sit up and take notice. Especially interesting to them was the fact that it was a re-test of the original urine sample taken from Phil at his fight, and that it resulted in a finding of no steroids. Out of evidentiary objections Mrs. Chappelle turned to her “expert” from Quest Labs to shoot holes in the test. He argued that Quest Labs was a better lab than Carlson and that they did better tests. However a few of the commissioners saw through this argument, pointing out that the release of the urine sample had been approved by the CSAC because Carlson was certified by the DHHS, the same people who certified Quest Labs. Thus the argument that Carlson was an inferior lab was not very compelling. The “expert” from quest also stated that supplements do not cause false positives. However the commissioners pointed out that there was extensive literature to the contrary; including the CSAC’s own website which quotes an Olympic Committee study finding 15% of supplements may cause false positives. In response to this the “expert” grudgingly admitted that false positives are possible but unlikely.

After a final speech by the Quest “expert” regarding the technical intricacies of their testing methods and some explanation of “metabolites”, both sides gave closing arguments.

When it came time to vote the first motion by the commission was to impose the maximum sentence on Phil. This motion was seconded, and received two votes in favor, but was not voted for by any other commissioners. The next motion was to dismiss all charges against Phil in their entirety. This motion was seconded, and received two votes in favor, but was not voted for by any other commissioners. The final motion was to reduce Phil’s suspension to 6 months. This motion was seconded, and carried with three votes in favor, two votes against, and one abstention.

Round Three - Feelings about the decision

In the end we have mixed feelings about the result. With the deck stacked against us we managed to persuade enough of the commissioners that something unusual had happened with Phil’s test results at Quest Labs to allow for a 6 month reduction, a win in many people’s eyes, but not in ours. While this 6 month reduction allows Phil to fight again come December, his suspension for steroid use still stands. Like many other professional athletes convicted of using steroids, he will forever have an asterisk next to his name.

It is clear that regarding Phil’s initial test at Quest Labs a mistake was made, where it was made and who made it may never be known. However, one thing is apparent; Phil is the one who has paid for that mistake. He has paid financially by spending over $20,000 attempting to clear his name, and by missing numerous profitable fighting opportunities. He has also paid a heavy price emotionally and mentally, suffering a severe tailspin of depression following his suspension for steroid use. Phil, like many professional fighters has spent his entire life training and building a reputation for himself. An event like this serves to undue a life time of hard work and dedication.

I am still hopeful that we can get Phil’s name cleared. There are other avenues of defense we have yet to explore. Given how well documented the ridiculous nature of the proceedings was (not just our own, but also Sean Sherk’s) and the public outcry that is resulting from it, there is a good chance something can still be done to clear Phil’s name entirely. However, even if this does not occur it is our hope that our case will help to shine the spotlight on the glaring inadequacies of the steroid appeals system prompting positive change. However, I submit that it is only through public pressure that such change can take place. Legal scholar and well known abolitionist Wendel Phillips said it best, “Law is nothing unless close behind it stands a warm living public opinion”. Thus the onus is on us as voting Americans to speak up and make the changes that need to be made to protect others from this same brand of “justice.”

Written by,
Nathan Brodnax, Esq.

For an additional third party take on Phil's CSAC hearing go to the links below



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