Double Standard In Wellness Policy And Whether WWE Can Penalize Brock Lesnar

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"This Policy... is applicable to and binding upon all WWE Talent under contract to WWE who regularly perform in-ring services as a professional sports entertainer ("WWE Talent")." – WWE's Abuse and Drug Testing Policy, Section 17 (bold added for emphasis)

Does the WWE Wellness Policy apply to Brock Lesnar? Is he a "regular" performer? Or is he exempt from WWE's drug testing policy because he only appears for WWE occasionally, having just eight matches for the company in 2015, and seven so far in 2016. Apparently thanks to the terms of his contract with WWE, he's only required to appear for the pro wrestling promotion on a limited number of dates, as opposed to most WWE performers, many of whom wrestle upwards of one hundred matches per year.

Furthermore, are (or were) Triple H, The Undertaker, The Rock or Vince McMahon considered to "regularly perform in-ring services" for WWE? Were they drug-tested by WWE at any time before or after their occasional wrestling matches since the policy was enacted in 2006? Or have they and Lesnar merely been exempt from the drug testing policy set forth under WWE's Talent Wellness Program because they only occasionally perform (or performed) in-ring? Were they at all subject to the minimum four drug tests per year that the policy states is required?

"The random selection program conducted throughout the year is designed to result in all WWE Talent being tested at a minimum four (4) times annually, but may result in more frequent testing due to the random selection process." – Ibid., Section 8 B

According to statements from UFC, Lesnar potentially failed USADA drug tests on June 28 and on the day of his UFC fight, on July 9, both times for the same substance. Lance Pugmire of the LA Times has reported the substance is clomiphene, an anti-estrogen blocker.

I'm told by an official with knowledge of Brock Lesnar's positive test that the substance is clomiphene, the same one found in @JonnyBones.

? Lance Pugmire (@latimespugmire) July 19, 2016

We contacted WWE to ask whether part-time performers like Lesnar, Triple H, The Undertaker and The Rock had been drug-tested in accordance with the Wellness Policy. The company didn't answer the specific question; it instead responded with the same statement regarding Lesnar it's given many outlets recently: "Brock Lesnar has not performed for WWE since WrestleMania and is not scheduled to return until Sunday, August 21."

In December 2007, Vince McMahon was interviewed by a congressional subcommittee, where he was asked by David Leviss, senior investigative counsel for the subcommittee, about who the policy applies to, where he emphasized that the Wellness Policy only applied to regular performers.

[David Leviss:] Is [the WWE Talent Wellness Policy], in effect, company-wide, does it govern everybody at the company or just talent?
[Vince McMahon:] It only governs those talents that are regularly scheduled to compete in the ring. I say "compete," perform in the ring. (Interview of Vince McMahon; December 14, 2007, p. 46)

Later in the interview, McMahon stated that, at least up to that time, he himself had never been drug-tested under the policy. McMahon further gave the impression that part-time in-ring performers, such as himself at the time, were not subject to the Wellness Policy. He was given the following line of questioning from Leviss:

[David Leviss:] In your role as WWE talent are you subject to the provisions of the Wellness Policy?
[Vince McMahon:] Let me answer where I think you're going. I do not test. I'm 62 years old. The Wellness Policy is a policy designed for talent that's regularly scheduled to compete, which I may wrestle a couple times a year. And not only not regularly scheduled, at 62 I'm not exactly a 24-year-old guy of which we're concerned for his wellness. So I don't fall in the category.
[Leviss:] So you're not subject to the terms of the Wellness Policy?
[McMahon:] No.
[Leviss:] And are you subject to testing?
[McMahon:] If I'm not in the Wellness Policy, then I'm not subject to testing, as I said before. I'm not a regularly scheduled performer. In addition to that I'm 62 years old, not 26. And the Wellness Policy is designed for those young competitors who compete on a regular basis.
[Leviss:] Is the Wellness Policy —
[McMahon:] I'm in good health at 62.
[Leviss:] It appears that you are. Is the Wellness Policy age limited by its own terms?
[McMahon:] I don't believe so, no.
[Leviss:] Have you ever been tested under the Wellness Policy?
McMahon:] No. (Ibid., p. 113-114)

In the same interview, McMahon and WWE lawyer Jerry McDevitt became very defensive when McMahon was asked whether he had used steroids or human growth hormone since 1996. McMahon refused to answer questions about whether he had (Ibid., p. 116-119).

The suspension of Roman Reigns due to a Wellness Policy violation seemed to lend credibility to WWE's program. One would think, if there was anyone the company would try to protect or whose violation it would attempt to cover-up, it would be one of its most-protected stars, which Reigns certainly has been for the last two years.

However WWE did let Reigns wrestle at least twice — at the Money in the Bank pay-per-view and on RAW the next night — after the company knew of his violation. According to the Wrestling Observer Newsletter, at least a few people in the company knew of the violation late in the week before Reigns' suspension was announced, on Tuesday, June 21, the day after he wrestled on RAW. In the aforementioned interview with Vince McMahon, he explains that performers may have their suspensions delayed so WWE can finish up a storyline they are involved in (Ibid., p. 98-104).

Lending further credibility to WWE's seriousness about drugs, Billy Gunn was fired late last year from his job as a trainer at the Performance Center after it came to light he tested positive for performance-enhancing drugs on a test related to a powerlifting competition. Gunn was not even subject to the Wellness Policy because he was employed as a trainer, not a contracted wrestler.

But what does it say about a company's drug-testing policy if the CEO will not — or cannot — deny his own PED use?

[Leviss:] Mr. McMahon, have you used human growth hormone since 1996?
[Jerry McDevitt]: Do you choose to answer those questions to these people, Vince?
[McMahon:] No.
[McDevitt:] You now have your answer.
[Leviss:] You're choosing not to answer the question or are you saying, no, you have not used it?
[McMahon:] I'm choosing not to answer the question.
[Leviss:] Have you used any other performance enhancing drugs since 1996?
[McMahon] I'm refusing to answer the question.
[...]
[Leviss:] I would like it to be clear. I asked whether you've used steroids since 1996, and I'm not clear whether you're choosing not to answer that question or not?
[McMahon:] I'm not answering your question. (Ibid., p. 117-119)

If the CEO of WWE, McMahon, and the Vice President of Talent, Live Events and Creative, "Triple H" Paul Levesque, when they perform, are not subject to the same drug-testing policy the majority of the talent they oversee are subject to, it sends a hypocritical message — especially when those two appear to be in curiously phenomenal shape in Muscle & Fitness magazine. It leaves room for the perception that PED use is tolerated in WWE.

Is the trick to being allowed to use PEDs in WWE just that you have to figure out a way to get a contract that doesn't require you to work more than a few matches per year? And if the WWE Wellness Policy doesn't apply to Lesnar, going forward in his WWE career, what's stopping him from continuing to take the substance he tested positive for under USADA tests?

On top of those troubling questions: now the public knows two of WWE's most high-profile stars, Lesnar and Reigns, have both violated drug-testing policies within the same short period of time.

If WWE wants its drug-testing policy to have credibility with its fans, business partners and the rest of the public, and if the company wants to show that it sincerely cares about the wellness of all its performers, then it should clarify whether part-time performers like Lesnar and dual performer-corporate executive Levesque, are indeed subject to drug testing, or whether they will be going forward. This is especially important for a company that is no stranger to past drug scandals, not to mention the long list of pro wrestlers who worked in the past for WWE who died at rates well above the general population.

The Signature Pharmacy scandal in 2007 set a precedent that WWE will suspend talents when there's evidence that they've possessed or used banned substances, treating such an occurrence as if it were a positive drug test that violates WWE's Wellness Policy.

Clomiphene, the PED Lesnar is reported to have tested positive for, is specifically named as a prohibited substance in WWE's policy.

J. Anti-Estrogens
The non-medical use of drugs belonging to this class, including, but not limited to, anastrozole, letrozole, aminooglutethimide exemestane, formestane, testolactone, raloxifene, tamoxifen, toremifene, clomiphene, cyclofenil and fulvestrant, are prohibited.

If the Wellness Policy doesn't apply to Lesnar, which, by its very language, it seems it doesn't, WWE may feel they have no obligation to penalize him. The WWE wrestler contracts that are public don't contain any specific language about the Wellness Policy, so the question of whether the policy applies to Lesnar is unlikely to be answered by his WWE contract. Regardless, the terms of Lesnar's contract likely allow WWE to fine or suspend him due to his USADA drug policy violations.

There's good reason to believe the language of WWE's wrestler contracts are largely standardized. Triple H's booking contract (the terms that contract him as a performer, not as a corporate executive), which is public, carries the following language. Something similar is probably written in Lesnar's contract:

9.13 (a) WRESTLER shall act at all times with due regard to public morals and conventions during the Term of this Agreement. Except as to such actions specifically directed by PROMOTER, if WRESTLER shall have committed or shall commit any act or do anything that is or shall be an offense or violation involving moral turpitude under Federal, state or local laws, or which brings WRESTLER into public disrepute, contempt, scandal or ridicule, or which insults or offends the community or any employee, agent or affiliate of PROMOTER or which injures WRESTLER's reputation in PROMOTER's sole judgment, or diminishes the value of WRESTLER's professional wrestling services to the public or PROMOTER, then at the time of any such act, or any time after PROMOTER learns of any such act, PROMOTER shall have the right to fine WRESTLER in an amount to be determined by PROMOTER; and PROMOTER shall have the right to immediately suspend WRESTLER and/or terminate this Agreement pursuant to Section 12.

Stephanie McMahon's booking contract contains almost identical language in the same section. Other WWE talent contracts, such as Rene Dupree's 2003 contract, Chavo Guerrero, Jr.'s 2010 contract, and even Bryan Clark's 2015 nostalgia contract, contain similar clauses.

If Lesnar did test positive for clomiphene or any other PED, and WWE does not significantly penalize him, the company would only further send an ambiguous message to its talent, fans and business partners about whether it tolerates PED use. Additionally, to further clarify the company's seriousness about overall drug use, WWE should amend its policy so it applies to those who perform in-ring on an occasional basis, as well as those who perform regularly.