Professor Michael McCann gives a wrap up of our event examining the role of contaminants and testing, and the playing of the Olympics during the COVID-19 pandemic. Produced and Hosted by A. J. Kierstead
Watch the recording of the event: https://media.unh.edu/media/Global+Sports+in+the+PandemicA+Contaminations%2C+Testing+and+the+Olympics/1_eftu0gxf
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Legal topics include sports law, entertainment law, drug testing, pandemic, covid-19
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A. J. Kierstead:
Professor Michael McCann discusses global sports and the pandemic. This is The Legal Impact, a weekly podcast presented by University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law.unh.edu. The opinions discussed are solely opinion or the fact to your host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire. So, Mike, today's show is a wrap of the amazing event we held Thursday, March 11th, hosted by UNH Franklin Pierce Sports and Entertainment Law Society, and The Sports and Entertainment Law Institute, titled "Global Sports and The Pandemic, Contaminations, Testing and The Olympics." You moderated the first panel with UFC's Jeff Novitzky and attorney Paul Green of Global Sports Advocates. What was your discussion centered around?
Michael McCann:
Well, A.J, we looked at how testing occurs with athletes, and particularly the issue of what are called thresholds. So thresholds are levels at which a certain amount of a substance in the body is not considered problematic, not cheating; it doesn't give an athlete a material advantage. And in the UFC, which Jeff Novitzky is the senior person for protesting, he talked about how in the UFC they use thresholds. So, an athlete who has a small trace of a substance that might be considered a steroid or performance enhancer, it doesn't disqualify the athlete. Whereas, internationally, that's not the case. There've been athletes that we talked about on the panel, those who eat a teriyaki bowl and has trace amount of the substance and how the beef was preserved, can lead to a test, and the suspensions and consequences are dire. It can be a four year suspension for an athlete.
Michael McCann:
And of course, we'll work for decades, but an athlete only has a really small window of life to earn money, so to lose four years is like us losing, I don't know, 10 or 20 years.
A. J. Kierstead:
It's unique with the UFC especially is the fact is, it's not a team. It's not like they got another 20 players just waiting in the wings they can just bring in that are still part of that same group. With the UFC fighters, if they have any sort of issue, they're out for two to four years, they've lost all their sponsors. There's no one else that's just necessarily part of their group. There's some gyms, but it's a little different.
Michael McCann:
Yeah. Jeff Novitzky talked about that, that it sort of defeats the purpose of drug testing if it's seen as profoundly unfair. Right? So, if a UFC fighter were to be disqualified for two to four years because of the trace amount of a substance that didn't provide any benefit and that most likely has an innocent explanation, it doesn't speak well of the testing policy if that person suffers the same penalty or any penalty as a UFC fighter who genuinely was trying to cheat. So, I think that that distinction between the amount that you have in you and whether or not it signals an effort to cheat or whether or not you may might've eaten something, or Paul Green talked about how having sex with somebody can lead to a transfer of substance, I mean, there are all these reasons that have nothing to do with trying to cheat on the field. And, that was a key point in the first panel.
A. J. Kierstead:
It's kind of a downside of how far science has gotten when it comes to this. Right? I mean, because they're able to detect just the smallest amount of trace elements in the athletes.
Michael McCann:
Yeah. It's pretty remarkable the degree to which testing can show what's in our body. I think the contextual point or the legal point to that is, what do we do with the data? What's the fair way of handling that data? If the rule is, "If you have any trace of the substance in you, you're automatically suspended and you can spend a year and a half," and as both Paul and Jeff talked about, it can be hundreds of thousands of dollars of legal fees trying to fight that. Should that trace amount lead to the same penalty as somebody who has a real material amount in their body? So, yeah. I mean, data's great. Right? And we've seen this throughout law. It's great when science is able to shed light on things, but what we as humans, as lawyers do with it has profound consequences in terms of fairness and in terms of the legitimacy of whatever system we've come up with.
A. J. Kierstead:
It was really interesting hearing Paul and Jeff talk because basically, they're on the opposite sides of what would be when an athlete has an issue, because Paul represents athletes. But they seem to be wanting to work together to really find the best way to handle it, which was super interesting about this panel.
Michael McCann:
Yeah. And especially Jeff's experience having been the lead agent for the FDA and the federal government in general in the whole steroids in baseball BALCO scandal.
A. J. Kierstead:
Yeah. His Joe Rogan interviews that he's done are fantastic. His career, it's really fascinating.
Michael McCann:
It is fascinating. And, his perspective, because he's seen so much, I think, as you mentioned, he and Paul are on opposite sides, but he's able to jump into Paul's shoes and say, "I get those concerns," because they're real. And it's a more legitimate system if there are thresholds in place because then everyone buys into it, right? Because if an athlete has a decent amount of substance in their body, it's an equitable presumption that they're trying to cheat, whereas if it's a small amount, it's a harder call. So, you're right. They're both opposite sides but they both know that everyone's better off if the system is considered legitimate.
A. J. Kierstead:
And Jeff is in another unique situation also where the UFC is also the promoter. So they are the league and the promoter, so that adds another live level of complexity with what he needs to deal with.
Michael McCann:
Yeah. And there's no players association in the UFC, so there's no union to negotiate drug testing with and that's good and bad, for the UFC. It's good in the sense that they can impose whatever system they want. The downside is that it's vulnerable to more legal scrutiny because it hasn't been collectively bargained. So, they still have to be fair and how they go about it. And, the NBA, NFL, baseball and hockey, they can all say with drug testing, "Well, the players agree to it," right? That's always their instant response to any kind of criticism about their system, whereas the UFC can't make that argument.
A. J. Kierstead:
It was brought up, some of the larger organizations that assist with their drug testing... Can you touch upon like WADA, and I think there was another organization that was brought up?
Michael McCann:
USADA as well. Yeah, so the gist of it is that... And this sort of builds in credibility that there is an outside entity that participates in the drug testing, and there are labs that are used that have other oversight over them. The gist of it is that it's not just Jeff Novitzky and his staff deciding, X, Y, and Z; what happened? What's the penalty? That there are outside entities that overlook it and that also have greater expertise in studying the science.
A. J. Kierstead:
The second panel was centered around the upcoming Olympics and the impact of pandemic will have on it, including industry experts from USA Track and Field, the US Equestrian Foundation, USA Olympic and Paralympic Committee, and it was moderated by our own Patricia Morris who's actually an expert when it comes to animal law. She actually teaches as an adjunct in addition to her role in our admissions department. What were some of the key takeaways from that group?
Michael McCann:
Yeah. [inaudible 00:07:51] did a great job. As you mentioned, A.J, she has a deep expertise in animal law and equine law, and she has her own firm and has been appointed by the governor at a different commission. So, we're fortunate to have her on our faculty and she really navigated the conversation through the, "What's going to happen with The Olympics?" I think that's the overarching point of that panel where they talked about serious logistical issues involving athletes going across the world, being housed together. An interesting point was raised about how that some athletes that are there to win medals, some aren't. Some are there just because they happen to be the best in their country but they're really not legitimate contenders for medals.
Michael McCann:
I had not thought of this, but what's their behavior at Olympics? At least as it was described by those who have been there that, they tend to be more adventurous. Maybe they take advantage of the trip a little bit more.
A. J. Kierstead:
After every Olympics, there's all the stories of the partying and everything, because there's a lot of people and there's a lot of countries involved and these are all young people for the most part that, some of them, it's their first time really leaving their country and there in this group of bunch of healthy young people, or at least they look healthy. And with COVID, you don't know if they're healthy.
Michael McCann:
That's right. You don't know if they're healthy and you just here that they're young and... Maybe, I don't know what it's like. I mean, if they've been number one their whole life and then they get to this setting where they can relax, right? They're not number one anymore. They're like number 12 or whatever, it's like somebody who's first in their class, they go to law school from college and then they realize they're not going to be number one anymore. For some, it's actually a relieving feeling. And, it was just interesting to hear that. I had not really thought of that. I always think of Olympic athletes as just so determined and spectacular, but those that are there that know they really don't have a chance to win... And as you mentioned, A.J, with COVID, it's so transmittable and you don't know who has it.
Michael McCann:
And there was also talk whether The Olympics will even happen. There was a media report a few weeks ago where somebody wrote that they've decided privately to cancel The Olympics and there was a backlash at that because The Olympic people said, "No, we haven't decided that at all." And I think the consensus in the group was, The Olympics are going to happen. Now, whether or not fans are there... And I think there's a report that people, fans from outside of Japan will not be allowed to attend the games, but it's not clear if people in Japan will be able to go. But it's going to be a very different feel, right? To have probably empty arenas. And, it was also talked about with family members. Will family members be able to go see their kids or brothers and sisters compete in The Olympics? It's a real logistical... I mean, look, COVID has presented logistical issues for us, for our law school. I mean, all businesses are impacted, but given the scope of The Olympics, I think it's that much [crosstalk 00:11:04].
A. J. Kierstead:
People from flying all around the world, so there's all sorts of strains that we're always talking about, from little blurbs from whether it's South America or England or anywhere that are easily transmissible, and now that everyone's just going to one location. And something that's not thought about by a lot of people, I don't think, is the amount of staff that each team has, the amount of staff each television crew has from all these different broadcast agencies from around the world, the press, The Olympic staffs themselves and then all the local staff that need to make sure each of these events have the proper facility's needs.
Michael McCann:
Right? All really good points. And, even if fans aren't there, you just hit at, there's still a ton of other people. And the variants, they're coming from all over the world. We know that COVID has variants. I mean, I'm not a scientist, but from what I read, the vaccines are not as effective on the variants, and in some cases, substantially less effective with the variants. So, I mean, there is a public health aspect to this that is a global concern but it's probably really a concern for Japan. Are they bringing in different strains of COVID? What will be the impact on the community? But on the other hand, there's real financial implications.
A. J. Kierstead:
Yeah.
Michael McCann:
The tourism industry was relying on people showing up. The hotels were relying... People are going to lose a lot of money and there will be really economic consequences. So, it's a lot to juggle. And the panel really talked about how... I think a couple of them said, it's the most complicated Olympics ever. And, The Olympics really just weren't designed for a global pandemic.
A. J. Kierstead:
No.
Michael McCann:
Right? I mean, it's just not configured for the reasons that were talked about.
A. J. Kierstead:
A link to recording the event is in the episode description, so definitely check that out. Thanks for listening to The Legal Impact presented by UNH Franklin Pierce School of Law. Tilt, spread word about the show. Please be sure to subscribe and comment under your favorite podcast platform, including Apple, Google and Spotify.
