I was quite surprised to hear USADA had granted Cris Cyborg a retroactive TUE for her spironolactone use, since USADA’s official policy appears to rule it out. Her use was for a chronic (not acute/emergency) condition, and she had time to apply for a TUE, but didn’t. That would seem to rule her out of receiving a retroactive TUE under the rules on USADA’s site.
It turns out that the official USADA policy for TUEs doesn’t apply to UFC athletes. As part of USADA’s deal with the UFC, athletes who fight for the promotion don’t have to meet the same standards as other athletes overseen by USADA.
Here are the requirements non-UFC athletes have to meet in order to receive a retroactive therapeutic use exemption:
"An application for a TUE will only be considered for retroactive approval where:
a. Emergency treatment or treatment of an acute medical condition was necessary; or
b. Due to other exceptional circumstances, there was insufficient time or opportunity for the Athlete to submit, or for the TUEC to consider, an application for the TUE prior to Sample collection; or
c. It is agreed, by WADA and by the Anti-Doping Organization to whom the application for a retroactive TUE is or would be made, that fairness requires the grant of a retroactive TUE."
“USADA will consider late filed or applications for retroactive TUEs; however, the Athlete does so at his or her own risk as USADA makes no guarantee regarding the processing of a TUE under such circumstances. Furthermore, in such instances, the Athlete may be charged up to the full cost for processing the TUE application where such filing, in the determination of USADA, is not attributed to factors outside the Athlete’s control.
USADA will make best efforts to expedite late filed TUE requests in advance of the Athlete’s intended Use based on exceptional circumstances, but makes no guarantees regarding the processing of TUE applications under that timeframe.
Furthermore, applications for retroactive TUEs will only be considered where the Use of the Prohibited Substance or Prohibited Method is medically justified. Athletes are cautioned that the Use of a Prohibited Substance or Prohibited Method without prior TUE approval is at their own risk and that the only way to ensure such Use will not result in an anti-doping policy violation is by obtaining a TUE prior to the Use of any such substance or method.”
In other words, there are no extra requirements for UFC athletes applying for a retroactive TUE compared to applying in advance. There’s no punishment for athletes only applying for a TUE after they get caught taking a banned substance. Other athletes have to meet specific conditions around retroactive TUEs which helps to ensure this doesn’t happen. UFC athletes don’t have to meet those conditions - or any condition outside of those required for a normal TUE application.
Now, the usual process for granting the TUE still has to be followed after this point. On the face of it, this part of the process seems fine: When USADA receive the application it goes to the TUE Committee, which is staffed by doctors and experts in various medical fields. Two of the committee members will review the application and make a recommendation, and USADA follow that recommendation. This means an athlete still has to show they had a legitimate medical reason to use the substance.
It should be noted that there has been controversy around USADA’s handling of TUEs in the past, with their handling of Floyd Mayweather’s retroactive TUE for a IV ahead of his fight against Manny Pacquiao coming under harsh criticism. USADA gave a lengthy response to that criticism at the time, and one of the more interesting statements was that Mayweather’s retroactive TUE was cleared by the USADA TUE committee.
The big problem with how the UFC’s policy is structured isn’t in the TUE committee, it’s in how much easier it is for a UFC athlete to qualify for a retroactive TUE review compared to other athletes USADA covers. Under the UFC policy, an athlete can go to a doctor, be prescribed a banned substance, and only apply for a TUE if they happen to get caught weeks or months later. That isn’t the case for other athletes; those athletes have to apply as soon as possible.
Let’s use clomiphene as an example — it’s a legitimate medication used for fertility issues, but it also happens to double testosterone levels. Now, there’s a chance USADA would grant your TUE for this, but there’s also a chance they won’t. If you’re an athlete, why on earth would you apply for the TUE ahead of time? Sure, you might get it, but then again you might not. If you just take it anyway, USADA might not test you in the right timeframe to notice it. If they do notice it, now you can apply for your TUE, and you have just as much chance of getting it as if you had applied beforehand.
You risk getting a test failure this way, but hey, at worst you get suspended for a year and potentially have to pay some costs for the application, but in return, you get two shots at getting away with doping.
This is a significant loophole - one specifically closed under the official WADA-based USADA policy that other athletes have to follow. For some reason, this loophole was re-opened as part of the UFC’s TUE policy, which was written by USADA and outside legal counsel, including people involved in writing the WADA code.
When asked about the discrepancy between the stricter policy on the USADA.org site and the UFC’s policy, USADA spokesman Ryan Madden said:
“It’s a little bit in the weeds, but on the Olympic side, there is less flexibility with the retroactive TUE application criteria because it was drafted with all 600-plus World Anti-Doping Code signatories in mind. However, under the rules, with a program like the UFC we can build in little more flexibility in regard to application criteria because we know for certain just how comprehensive our TUE review process is. It’s a logical step and it benefits both the athletes and the anti-doping program as a whole.”
“The most important thing to realize here is that any UFC athlete who applies for a retroactive TUE is still subject to the exact same TUE review process as everyone else. Most people probably don’t realize how genuinely comprehensive that process is. We’re talking about submitting extensive medical documentation and having it reviewed by an externalized committee of well-regarded medical experts from around the country. The burden that athletes have to meet in order to show that they are using certain substances for legitimate medical reasons is extremely high and goes far beyond just simply having a doctor’s note. You have to prove that there is a legitimate clinical need, that it is only being used to return the athlete to a normal state of health, and that there are no non-prohibited alternatives. These athletes are still being held to the highest standard.”
As Mr. Madden states, the actual medical requirements for receiving a TUE don’t change, whether the application is ahead of time or retroactive, but the fact is, athletes who wouldn’t even qualify for that medical review in other sports do qualify by virtue of being in the UFC. Whether this is a good thing or a bad thing is in the eye of the beholder, but the choice to adopt flawed parts of the WADA code in the UFC’s anti-doping program — including the prohibited list — is made even more baffling in light of policies like this one being rewritten to make it easier for athletes to avoid suspension.