Oh. heres my notes on her statement and USADA statement
Penne.md
Jessica Penne statement, January 2020
I am not even sure how to start this or go about addressing this to everyone... I am heartbroken and defeated. USADA has effectively bullied and forced me into retiring from MMA. About 3 years ago I was advised by my doctor to start an OTC medication that would balance out my extremely deficient hormone levels. I followed the rules to the best of my knowledge and even had prescribed medications rejected when I was informed they violated the stipulations of USADA.
In mid 2017 Biological passport irregularities caused USADA to go back and retroactively test some of Penne's previous samples. One of her prior samples which had passed analysis the first time tested positive for DHEA use with additional testing.
Originally the sample from April 2017 passed testing, it was only when they went back and did gc/irms on the sample (isotope ratio testing) that they detected the presence of exogenous dhea.
Its important to note that this has nothing to do with her current situation or her positive for stanozolol. Her 2017 positive test was as a result of using a DHEA supplement on the advice of her doctor and not checking its prohibited status. She is not claiming that her current situation is as a result of the medical advice she received in 2017.
With USADA being new to me and most everyone in the UFC at the time
Penne's positive test was in March of 2017. the USADA program commenced in July 2015, two years prior.
my naivety thought that having a doctor's note/recommendation for a simple "over the counter product" would be safe to take... turns out it wasn't and I was banned from fighting for 18 months... I was upset because I did not knowingly break the rules but I took ownership, kept my mouth shut, and served my sentence.
While the situation was unfortunate, and she may have not intentionally used a prohibited substance, she did however intentionally use a substance without checking if it was prohibited. A cursory search would have quickly established that DHEA was on the prohibited list.
Unfortunately, because she took DHEA without checking its prohibited status then her violation was considered intentional by USADA. She did however receive credit for reduced fault based on her following the advice of her physician. That said, considering the purported health benefits of DHEA, 18 months could seem harsh, although the physiological benefits were considerable enough to trigger the athlete biological passport.
During this time I was repeatedly tested and I was clean on everything. This incident was a wake-up call which made me hyper paranoid about everything I put in my body because the stigma of being thought of as a cheater is humiliating and something that goes deep to my core beliefs that I couldn't be tied to.
Penne emphasises that this made her "hyper paranoid" about everything she put in her body, and gave her a wake up call regarding what she uses. Many athletes have expressed the same following positive tests. That it makes them more careful about what they use in the future, carefully researching every supplement and medication.
I went broke during this time and embarrassingly had to do anything I could to make ends meet... I drove for Lyft, taught privates and anything I could to get by.
n/c
Finally when I had served the sanction, all I wanted to do was get back to fighting. I was booked to fighting in February of 2019 when I suffered a sprained ankle warming up the day of the fight... I couldn't believe this happened, I felt like I was cursed. The UFC was gracious enough to re-book me in April but as you may or may not remember I was pulled from that fight. The reason I was pulled was because of an extremely low level of stanozolol was found in my system (picogram levels)...
"Picogram levels" may or may not be accurate. It is a phrase bandied about a lot recently, but should be noted that most "levels" in doping analysis involve very small amounts, generally micrograms, picograms or nanograms. Picogram levels of stanozolol metabolites could be very low levels, equally it could be alarming levels. Stanozolol is an endogenous steroid, that is, it is not found naturally in the body. So from that point of view, any level is cause for concern.
The level present in a sample however is not a particularly good gauge of how much was administered originally.
For example. I could be tested for alcohol at work and low levels of alcohol could appear in my system. That could be consistent with having a bowl of sherry trifle at lunch that contained low amounts of alcohol. Equally, it could mean I got really really drunk a few nights ago and the remaining low levels were residual.
One way you can potentially establish how much was administered is if you have other (either positive or negative samples) around the same time as the positive test. More on that next.
NOTE: Subsequent to her statement, Penne's management have claimed the product in question is "Aftera", a "morning after" contraceptive pill manufactured by Gedeon Richter in Hungary. Korva labs state they tested a sealed packet and it contained stanozolol. They have not produced detailed analysis reports listing all substances present, purely a short statement that says stanozolol detected.
Going forward will work on the presumption that this is indeed the cause of the positive test
My heart sank... after everything I had gone through by complying and staying quiet just to get my shot back, this happened... I had been tested so many times and had even tested clean days before this actual test was given...
This is an interesting point. That she was tested just a few days prior to her positive test. A common strategy of USADA when they have suspicions about an athlete is to test an athlete, and then return a few days later. The idea being that the athlete, thinking that because they have just been tested they wont be tested again for a few weeks at least, will commit a violation and then be surprised by a fresh visit a few days later. The fact that USADA saw fit to test her twice in a matter of days could be alarming. However, there are also innocent reasons why a tester may visit an athlete in visits spaced only a few days apart, for instance a prior sample may not have had sufficient gravity (viscosity) to analyse, or the athlete may have provided less than the required 90ml. But it could be there was a level of suspicion there from USADA, either from previous test results or the fact she had been previously sanctioned.
USADA test data reveals she was in fact visited twice in early April 2019 (She had three samples appearing on the USADA reporting for 10th April 2019). Generally the most samples provided in a session are two (one blood, one urine) so 3 samples suggests two visits. We could not be certain of this based just on the number but Penne has now confirmed she was visited just a few days prior to the visit that resulted in her adverse test which we know was prior to her scheduled fight against Jodi Esquibel pinning it down to the 10th April reporting week.
The following samples were logged for Penne in early 2019 (dates are the dates they appear on the USADA website)
24th January - sample 27th February - 1 sample 7th March - 1 sample 10th April - 3 samples (This is two visits in one week with the positive test on the second visit) 17th April - 1 sample
And then in the remainder of 2019
12th July - 2 samples 29th August - 1 sample 14th October - 1 sample (last reported test)
The fact she was tested a few days earlier could benefit her
On one hand, having a clean sample and an adverse sample in a short space of time helps narrow down the point of ingestion. It is then possible to work out if the levels of substance in her sample are consistent with contamination or consistent with intentional therapeutic use. Knowing her sample a few days earlier was clean if the levels in her positive sample were so low that it could not have come from a therapeutic dose administered in the prior x hours (between the last sample and this), then that would, while not proving contamination/non intentional use, be a massive argument in her favour.
That can also work against her. Knowing the approximate point of ingestion USADA could calculate based on a normal therapeutic dose what levels you would expect to be present in urine at the point of the second test. If the levels in her sample, even if at "picogram level" were at, or exceeded the expected level from a therapeutic dose, while this does not prove intentional use, it strengthens the argument that it was not contamination.
This is where her doping control form could play a part. If she wrote medication on BOTH doping control forms that potentially weakens her case extremely because USADA will want to know why the first sample was negative.
If she wrote medication only on her second (positive) doping control form, but not the prior one, that strengthens her argument in that she can show that she took it for the first time between the two tests.
Of course there is every possibility that she failed to declare the medication on any of her doping control forms (athletes are notoriously poor at filling out the supplement/medication section). Something if the case USADA will stress in hearing. Penne may claim she did not remember or did not think it important, USADA would claim that its not the sort of thing you forget as it would have been taken recently. Whats on the DCF (Doping control form) will have a role to play.
There is also the matter of a sample taken about a week after the positive sample. This sample was almost certainly collected BEFORE she was informed of her positive test.
Bearing in mind the medication she claims caused the positive, it is typically a single use medication, so any positive test in her 17th April sample would severely weaken her argument as that would suggest prolonged or at least repeat use.
If however, the mid April sample (in addition to the first sample) are negative, that would strengthen her case that this was a single use medication, which caused a positive test sandwiched between two negatives.
I knew this had to be a mistake or some form of contamination. When we thought was going to be an easy determination of cause, turned out to be an emotional roller-coaster and ended in disaster.**
I spent thousands of dollars I didn't have testing medications and supplements (most of which were 3rd party certified that the UFC PI gave me).
Penne states that she became hyper paranoid over what she put in her body. But then states that "most" of the supplements she was using had been given to her by the UFC Performance Institute and were third party tested, suggesting that there were additional supplements she was using that were NOT 3rd party tested. The fact she had access to certified supplements and apparently chose to also take other non-certified ones is something USADA will probably mention. That said, if the cause is a medication that becomes largely immaterial and an arbitrator is likely to ignore any conclusions USADA make in this area. But USADA could certainly use it as an example of a lack of care shown by the athlete.
it could be argued that she was badly advised at this point. Jeff Novitzky and the team should have worked with her to look at her supplements and medications, establish which were "high risk" and ONLY initially submit those supplements and medications to analysis. There is little point testing supplements that have already been certified. Focus on the ones that are not certified. It is also strange that the UFC did not support her in this. There are numerous reports from athletes stating that Novitzky and his team have assisted with the supplement analysis and the cost has been covered. If it is the case that she was not supported in this that would seem unfair.
You have Novitzky and the team go through all of your supplements. Use Jeff's experience to identify which ones are high risk, and then you send those ones to the WADA lab in Salt Lake City or UCLA (And get the UFC to pay for the testing).
The lab I tested my supplements at (Korvalabs in California) actually found the banned substance that USADA was trying to pin on me. I was overjoyed with happiness thinking that my name would be cleared and I could return to fighting. However, that was not enough for USADA... and even with those test results AND all their evidence showing that the levels found in me were so small that it was clear to everyone that it was not a "performance enhancing dose"
Korva Labs are not a WADA accredited lab, and as such USADA dont tend to take on board their results without further verification so its normal for them to then independently purchase supplements.
USADA do not usually accept the results of private testing without confirming it themselves for a variety of reasons. Not least there has been no independent oversight on the opening and analysis of samples. (Korva may not be considered "Independent", more on that at the end)
Worth noting though that a arbitration panel is not looking for watertight evidence from the athlete. It is in USADA's court to demonstrate that the use was intentional. Penne's lab results from Korva, will at the very worst throw doubt on any claims of intentional use.
USADA took it upon themselves to find new samples and retest everything at a lab in Utah...
This is standard procedure. USADA will independently obtain sealed, unused containers of the supplement either from a store of from the manufacturer. They will usually go to efforts to ensure the same batch/lot number. These sealed containers are then opened at the Wada accredited lab in Salt Lake City and analysed.
In Penne's case the claims is that the products she sent to Korva contained stanozolol, the products purchased independently by USADA sent to SMRTL did not.
One small technical point. Aftera is a single tablet, single use product. So the tablet sent to Korva, will not be the tablet that Penne administered. Nor will the tablet(s) analysed by SMRTL be the actual tablet taken by Penne.
Its very possible that it would not be able to determine the batch number unless Penne had either a) retained the original packaging of the tablet she took for the best part of 2-3 weeks, or b) had purchased multiple packets of the medication at one time and retained a separate packet.
What is confusing in this case is that a tablet sent to Korva reputedly contained Stanozolol, but it would appear none of the samples USADA had analysed did.
We have a situation where there are potentially countless instances of "Aftera" being analysed, and the one Penne administered, and the one she sent to Korva (which may or may not come from the same batch/lot) are giving results contradictory to those obtained by USADA.
Weeks went by and after lots of confusion and arguing, USADA comes back and says their test results negated my test results and they were handing me my second violation, which comes with a 4 year suspension. At my age there is no way I can come back in 4 years... at this point I am lost and defeated.
In supplement cases, the results of analysing sealed, unopened containers at SMRTL will always take precedent over other results.
Korva claim the samples they received from Penne were sealed on arrival. Had/If the samples she sent to Korva had already been opened, then their value as evidence in an arbitration panel is almost zero as there has been potential for tampering either by the athlete or by a third party.
If USADA were able to source products with the IDENTICAL batch number to those tested by her that potentially weakens case as the Wada accredited lab at SMRTL have been able to analyse samples from the very same batch.
If USADA were NOT able to source products with identical batch number, so products from a different production run, then this gives Penne's lab results a much greater weight with a panel.
Generally its harder to convince a panel of self administered lab tests. Paul Scott and Korva labs have two main roles. One is testing supplements for contaminants. The other is working with lawyer Howard Jacobs in defending athletes accused of doping violations. Because much of Scott's role is defending athletes against doping allegations there could be accusations that he is not "independent" although to my knowledge, there has never been a situation where USADA have accused Korva of falsifying lab results or the like. But it should be noted, in hearings involving both Anderson Silva and Jon Jones, Paul Scott's evidence has been largely dismissed.
In the Anderson Silva case Scott claimed they had detected prohibited substances in his supplements but USADA were able to successfully question the validity of those results (not helped by Scott forgetting to bring the lab reports with him).
Donna Marcolini and Jeff Novitzky who are in charge of athlete health and performance for the UFC, and who handle all the dealings with USADA, have believed in me and my case since day 1. They have supported me and have spent endless hours on my case to prove I did not do anything knowingly and intentionally to cheat.
During this 3 year period I've been sidelined, USADA has had to reform some of their rules which legally gave me a sliver of hope because under these new rules, my "first offense" should be wiped away with the knowledge and proof of the doctors advice and compliance.
This is not quite accurate. A first offence is only ignored following subsequent sanctions, if it is determined that the first sanction was "non-intentional" or "without fault or negligence"
Penne's first sanction was not deemed non-intentional and so would not be wiped under the new rules. Her sanction was reduced due to a lower level of fault because she took the substance on medical advice, but it was not deemed "Non-intentional" or "without fault or negligence".
I showed to try and follow the rules. It was very clear I didn't knowingly take a banned substance... there is a paper trail to prove it and I never hid the face that I took it...
According to USADA Penne did not admit to using DHEA until after being informed of her positive test.
Ultimately she went to the store albeit on her doctors advice, purchased DHEA and then took it without checking its legality. However well intentioned she may have been, USADA and a tribunal, both view that as intentional use under strict liability.
as a matter of fact the only reason they caught it is because I wrote it down and informed them of it.
This is also inaccurate according to USADA. Per the USADA sanctioning report it was stated that following bio passport irregularities previous samples were retroactively tested using isotope ratio testing. Only after being informed by USADA of her positive test for DHEA did the athlete admit to taking DHEA.
She appears to have either taken the situation involving Lyoto Machida (Who wrote on his doping control form that he was taking DHEA) and applied it to her own situation, or, the sanctioning report against her is wildly and grossly inaccurate. Had Penne written on her April 2017 doping control form that she was taking DHEA she should have been sanctioned at the time, not as a result of retroactive testing.
After the so-called second offense, I was subject to multiple interrogations during at which my emotional state of crying and utter disbelief caused me to come across to Nadia (the USADA agent) as "not pleasant". She showed zero understanding to my emotional state and I believe she was simply on a witch hunt to show relevance to her job. When she couldn't pin me for how this "non performance enhancing dose" got in my system,
This is a concern, and really Penne should have been accompanied either by Jeff Novitzky, Donna Marcolini, or legal representation in all interviews. That way not only does she have support but there is also witness present to corroborate any claims of bullying or intimidation.
she essentially told me I was screwed and they would sanction the full 4 years on me unless I ratted out other fighters or coaches that I knew were using PEDs. My mind was blown. At this point I lost all hope and respect for the USADA program. I am all for a clean sport and the idea of USADA, but to threaten and end a non cheaters career because they aren't good enough to find the real cheaters on their own is mind blowing.
A common approach in anti doping is to offer reduced sentences for athletes who co-operate with USADA in identifying other anti doping violations.
I have fought this with everything I have and Donna and Jeff have exhausted every resource they have to prove my innocence... USADA is now acting like the "high Sparrows" in Game of Thrones and operating in a capacity where they feel untouchable and know 90% of the athletes can't afford to properly defend themselves. As a final insult to all of this, Nadia and USADA have requested that I sign a letter agreeing to their career ending terms and sanctions against me. I am here today to tell you that my management team and I did NOT and will not ever agree to sign this sanction they are imposing. I AM INNOCENT! I don't know where to go from here...
The next step is arbitration.
At this point USADA has held me from making a career and income for the last 3 years and I am ashamed to say I am broke, defeated, and heart broken. I have been advised by Jeff and Donna that I have one last shot to try and get back and that is hire a lawyer and fight USADA head on in court but that could cost upwards of 30-40k. My manager has advised me that he is going to start a go fund me account to see if we can raise the money needed to fight but I am not holding my hopes high. I hope with all my heart that you all believe in me and know I would never cheat... I loved this sport and gave my life to it.
There is really no reason why going to arbitration should cost $30,000 or more. The filing fee for arbitration is $2500 but that can be waived by McClaren Group if the athlete is unable to afford it.
Support up to the day of the hearing should be provided by Novitzky and his team who will assist the athlete with all their evidence preparation and the intelligence gathering stage. The only real need for legal involvement is in putting the final case together and representation on the day. That should not cost $40,000, unless you are hiring Howard Jacobs.
This rather highlights the need for some sort of unionisation to help provide fair, dedicated, affordable legal support to athletes, not expect to them to pay tens of thousands of dollars to people who get their information from body building forums and then forget to bring their notes to the hearing (see later note on Paul Scott).
USADA Statement, January 2020
Given Jessica Penne’s public statement, we can confirm her positive test for stanozolol. However, there are many factual inaccuracies and unfounded allegations in her statement, including that she has been forced out of UFC. In fact, she has exercised her right to contest her case before an independent arbitrator, per a request USADA received after she released her public statement. Under the UFC Anti-Doping Policy, all athletes have the right to present the facts and circumstances during a full evidentiary hearing. We look forward to the opportunity to present the facts and evidence through this process.
A very nothing statement from USADA but is as much as could be expected. Any further comment from them could prejudice the hearing or at least in the eye of the public affect her rights to fair adjudication.
That said, there is a tone citing "many inaccuracies" that suggests a certain annoyance from USADA.
This will be only the 6th time that a UFC case has progressed to tribunal.
- Jon Jones - was suspended for 1 year for clomiphine use after a tribunal
- Jon Jones (Second time) - received a reduction of three months on USADA's requested penalty following his positive for turinabol metabolite M3
- Josh Barnett - was cleared by a tribunal and given only a formal warning
- Cisco Rivera - was suspended for four years, the suspension doubled for aggravating circumstances after his hearing.
- Magomedov/Tukhugov - proceeded to hearing but dropped their appeal at the start of the proceedings.
USADA W/L record. W3 L1 D1
A side note on Korva, Paul Scott and Howard Jacobs
Korva are headed up by Paul Scott. It was Paul who acted as Anderson Silva's expert witness in his case against Nevada, analysing samples of Silva's supplements and detecting prohibited substances in them. He then famously forgot to bring his laptop, any test data, lab reports or notes with him to the hearing.
He then acted as a witness for Jon Jones in his case with California admitting that he spent just four hours researching the case, and got the bulk of his information on Turinabol from "bodybuilding websites". For this four hours web browsing he charged $1600 (plus more to appear at the hearing).
Scott is an associate of the lawyer Howard Jacobs who has defended several hundred athletes in doping cases, most notably Marion Jones.
Penne's management has now started a go-fund-me looking to raise $40,000 in legal fees which presumably is being used to hire Scott and Jacobs (given her prior use of Korva).
Should note, that in both Silva's case, and Jon Jones' case, Paul Scott's lab work and findings were basically discredited.
Summary Notes
The most confusing aspect is that Penne's team have apparently discovered the cause of the positive, or at least have been able to discover a contaminated product, USADA are still pressing forward with a 4 year suspension.
Its hard to understand why. In the last twelve months they have given numerous fighters reduced suspensions where they decided the levels present in the sample were consistent with contamination, even in the ABSENCE of the supplement that caused it.
In Neil Magny's case they did not discover the cause but cleared him because levels were consistent with contamination. In Nicco Montano's case similarly they did not discover the cause but cleared him because levels were consistent with contamination. In Sean O'Malleys first case they did not find the cause but gave him a reduced suspension, and in his second case, they did not find the cause but went to the effort of testing him on a weekly basis for three months to effectively clear him of wrongdoing.
If the evidence is as we understand. That Penne has a single isolated positive test, for "picogram levels" of stanozolol that "do not indicate a "performance enhancing dose" and they have been able to establish the cause of the positive test, there is no logical reason why USADA would be pressing forward with a 4 year suspension.
Possible reasons why they could be requesting 4 years:
1) The levels in her sample were not consistent with contamination 2) There was an additional positive test in the later collection in mid April 3) They have been unable to source similarly contaminated medication and/or the levels in her sample to not correspond to the levels detected in the Korva analysis 4) They suspect the Korva lab results to be fraudulent 5) The athlete shows a pattern of biological passport irregularities that suggest intentional use 6) They are assholes
