Ed Soares, famous for being Anderson Silva’s mouthpiece of a manager, is applying for a promoter’s license at the meeting. What should be a smooth transaction for Ed could turn out to be very interesting because he will also be involved in another matter at the meeting — Rafael Feijao’s appeal of his positive drug test result for stanozolol.
CSAC, at the last minute, did a 130-page document dump of meeting materials for Monday’s session. There’s a lot of interesting items in the document, including CSAC’s budget affairs and an update on the boxer’s pension fund ($5.3 million dollars in the bank). Curiously enough, they never give out any sort of information regarding the neurological fund. The Neuro fund has become a political hot potato since promoters still have to pay taxes into the slush fund but nobody knows much information (publicly) about the actual bank account and who is managing it.
On page 100 of the document, there is a 7-page letter from Rafael Feijao’s doping attorney, Howard Jacobs, detailing his client’s upcoming appeal hearing on Monday. What the letter alleges is surprising but not entirely shocking given the drug testing follies for CSAC.
Here’s the text of the appeal letter written by Howard Jacobs:
RAFAEL CUSTODIO’S PRE-HEARING BRIEF AND EXHIBITS
This matter arises from a report to a positive drug test for “stanozolol metabolites.” Rafael Custodio denies using any prohibited substances, and specifically denies using stanozolol or any other substance that could have caused this test result.
The CSAC and the UCLA Olympic Analytical Laboratory have reported that the sample at issue – CSAC 2639919/UCLA YID108 – was collected on May 18, 2012, at 5:26 pm. However, this is incorrect: the sample was actually collected on May 19, 2012, at approximately 4:00 p.m. The laboratory documentation does not mention anywhere that the sample was actually collected on May 19, 2012. Simply stated, there is a fatal defect in the chain of custody, such that the laboratory documents themselves cannot be relied upon.
Furthermore, the fatal chain of custody defect cannot be characterized as a technical or a paperwork violation. That is because the doping control officer started the sample collection process on May 18, 2012, and after determining that there was an insufficient volume of urine, directed that Mr. Custodio come back on May 19, 2012 to provide his urine sample. Rather than starting the sample collection over on May 19, 2012, the collector inexplicably poured out the urine collected on May 18, and used the same collection cup on May 19. While this may explain why the chain of custody documentation incorrectly states that the sample was collected on May 18, it also means that the collection cup used for the May 19 sample, which was the same cup used for the May 18 partial sample, was open and subject to possible tampering or contamination for a period of almost 24 hours. This means that the stanozolol metabolites that appeared in sample CSAC 2639919/UCLA YID108 could have come from anywhere.
The whole point of having a strict sample collection protocol, and using unused and previously unopened collection containers, is so that the possibility of tampering or contamination cannot be excluded. When a proper collection protocol is not followed, the test results are meaningless, because it cannot be established that the prohibited substance came from the fighter’s urine as opposed to coming from some external source. In this case, the sample collection process was so flawed, that the CSAC cannot establish that the stanozolol metabolites came from Rafael Custodio’s urine as opposed to coming from some other source. Therefore, the test results must be considered as invalid, and the fighter cannot be suspended or fined.
II. BURDEN OF PROOF
As previously stated by the California Attorney General, the burden of proof in a doping case brought by the CSAC is the “preponderance of the evidence” standard. This standard is defined by the California Jury Instructions applicable to civil proceedings as follows: “Preponderance of the evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”
In meeting its burden of proof, it is submitted that the CSAC must establish (1) a valid chain of custody; (2) that the urine sample could not have been tampered with; and (3) that the laboratory found a prohibited substance in the urine sample. Each of these three requirements is equally important, and the failure to prove any of these 3 elements must mean that the CSAC has failed to meet its burden of proof. Therefore, while Mr. Custodio does not contest that sample CSAC 2639919/UCLA YID108 contained “stanozolol metabolites,” this can only results in a fine and/or suspension if the CSAC can establish that the stanozolol metabolites in sample CSAC 2639919/UCLA YID108 could only have come from Mr. Custodio’s urine, as opposed to coming from some other source. This is the whole point of chain of custody, and in this context, it is easily understandable why chain of custody is so important.
(later on in the letter…)
III. THERE IS A FATAL DEFECT IN THE CHAIN OF CUSTODY, SUCH THAT THE CSAC CANNOT ESTABLISH THAT THE PROHIBITED SUBSTANCE CAME FROM RAFAEL CUSTODIO’S URINE
(later on in the letter…)
Failure to follow proper collection and chain of custody protocol has in other sports led to the dismissal of doping allegations. See, e.g., “Ryan Braun cleared, chain of custody is decisive” [attached as Exhibit 5].
Here, the collection protocol and the chain of custody is fatally flawed, in at least the following respects:
1. The collector disposed of the May 18, 2012 partial urine sample provided by Mr. Custodio, and then kept the open collection container to be reused on May 19, 2012;
2. The open collection container was subject to possible tampering and/or contamination for almost 24 hours before the actual sample that was tested was collected on May 19, 2012
3. The collector re-used an open collection container to collect Mr. Custodio’s May 19, 2012 urine sample, allowing for possible tampering and/or contamination in violation of sound collection procedures;
4. The chain of custody documentation for sample CSAC 2639919/UCLA YID108 incorrectly states that the sample was collected on May, 19, 2012;
5. The chain of custody documentation provides no information regarding the location of the open collection container between May 18, 2012 and May 19, 2012; and
6. The chain of custody documentation fails to reflect anywhere that sample CSAC 2639919/UCLA YID108 was collected on May 19, 2012.
Furthermore, the collection protocol and the chain of custody violates the WADA International Standard for Testing [attached as Exhibit 6], in at least the following respects:
“6.3.4 The ADO shall only use Sample Collection Equipment systems which, at a minimum, meet the following criteria. They shall … d) Ensure that all equipment is clean and sealed prior to use by the Athlete.”
Annex F – Urine Samples – Insufficient Volume
F.4.1 If the Sample collected is of insufficient volume, the DCO shall inform the Athlete that a further Sample shall be collected to meet the Suitable Volume of Urine for Analysis requirements.
F.4.2 The DCO shall instruct the Athlete to select partial Sample Collection Equipment in accordance with Clause D.4.4.
F.4.3 The DCO shall then instruct the Athlete to open the relevant equipment, pour the insufficient Sample into the container and seal it as directed by the DCO. The DCO shall check, in full view of the Athlete, that the container has been properly sealed.
F.4.4 The DCO and the Athlete shall check that the equipment code number and the volume and identity of the insufficient Sample are recorded accurately by the DCO. Either the Athlete or the DCO shall retain control of the sealed partial Sample.
F.4.5 While waiting to provide an additional Sample, the Athlete shall remain under continuous observation and be given the opportunity to hydrate.
F.4.6 When the Athlete is able to provide an additional Sample, the procedures for collection of the Sample shall be repeated as prescribed in Annex D — Collection of urine Samples until a sufficient volume of urine will be provided by combining the initial and additional Sample/s.
F.4.7 When the DCO is satisfied that the requirements for Suitable Volume of Urine for Analysis have been met, the DCO and Athlete shall check the integrity of the seal(s) on the partial Sample container(s) containing the previously provided insufficient Sample(s). Any irregularity with the integrity of the seal/s will be recorded by the DCO and investigated according to Annex A — Investigating a Possible Failure to Comply.
F.4.8 The DCO shall then direct the Athlete to break the seal/s and combine the Samples, ensuring that additional Samples are added sequentially to the first entire Sample collected until, as a minimum, the requirement for Suitable Volume of Urine for Analysis is met.”
The CSAC cannot establish that the prohibited substance found in sample CSAC 2639919/UCLA YID108 came from Mr. Custodio’s urine, as opposed to coming from some other source that introduced to the collection container (through contamination or tampering) during the 24 hour period that the collection container was open and unsealed (between May 18 and May 19). The documentation is utterly devoid of any mention of the actual collection date of May 19, 2012, and incorrectly states that the sample was collected the prior day. The documentation is also utterly devoid of any record of where or how the open and unsealed collection container was kept or stored between May 18 and May 19. For any and all of these reasons, the doping allegations must be dismissed, and it is submitted that Mr. Custodio cannot be suspended or fined.
For all the foregoing reasons, it is submitted that the CSAC cannot meet its burden of proving, by a preponderance of the evidence, that the positive test was caused by the use of a banned substance. Therefore, it is submitted that the sanction and fine imposed on Mr. Custodio must be eliminated.
V. DESIGNATION OF WITNESSES
Rafael Custodio will testify regarding his background and experience as a mixed martial arts fight; his drug testing history; the circumstances surrounding the collection of his urine sample(s) on May 18, 2012 and May 19, 2012; and the fact that he has not used any prohibited substances.
Ed Soares will testify regarding the circumstances surrounding the collection of Rafael Custodio’s urine sample(s) on May 18, 2012 and May 19, 2012.
Paul Scott will testify regarding his attendance at the “B” sample testing, and the issue of chain of custody.
Rafael Custodio reserves the right to call additional witnesses during the Commission hearing on October 8, 2012.