Acting through his lawyers, UFC welterweight Nick Diaz on Wednesday filed a Memorandum of Points & Authorities in support of his petition for judicial review of the Nevada State Athletic Commission (NSAC)'s May order that he pay $79,500 in fines and serve a twelve-month suspension. That May ruling was a result of Diaz's positive post-fight UFC 143 urinalysis for marijuana metabolites. The Las Vegas Review Journal was the first to report the story.
Diaz's petition will be heard by a judge following receipt of the NSAC's response, which is due in 30 days. The full text of his request for judicial review can be read in its entirety.
"The Commission needs to understand that it cannot act with impunity in the exercise of its authority," a member of Diaz's legal team told MMA Fighting. "In Diaz's opinion, while fighters must respect the lawful authority of state athletic commissions, they should not accept unjust and unlawful disciplinary action. Further, Diaz finds it bizarre that the Commission is vigorously policing legal marijuana use outside competition while at the same time endorsing and sanctioning the use of steroids and testosterone -- which has a direct effect on fighters and their opponents in competition. The Commission needs to refocus itself on protecting fighters and the fairness of the combat sports they regulate. Diaz believes this legal proceeding may provide the Commission a helpful push in the right direction, for the benefit of all fighters and the reputation of the sport itself."
NSAC Executive Director Kizer declined to specifically comment when reached by email from MMA Fighting, stating only the Attorney General's office - which represents the NSAC - will file a brief before the 30-day deadline.
At issue are two central claims by Diaz and his legal representation: marijuana metabolites are not a 'prohibited substance' under Nevada statutes relevant to NSAC regulation and it was therefore unfair to punish him for testing positive for something not banned; and the NSAC incorrectly determined Diaz failed to provide accurate and correct information on his pre-fight questionnaire.
Marijuana is currently prohibited for fighters licensed in Nevada according to statute NAC 467.850(2)(f), which includes all prohibited substances on the current Prohibited List published by the World Anti-Doping Agency (WADA). In May and in Thursday's petition, Diaz's legal team argues marijuana is only prohibited "in competition" and adamantly maintain WADA permits use of marijuana and other cannabinoids outside of competition. Nevada's laws, by virtue of using WADA's direction, also permit out of competition use, they contend.
The NSAC ultimately disagreed with Diaz's legal argument last May and found him in violation of the statute.
Also in that May hearing, the NSAC found Diaz violated NAC 467.885(3), or more specifically, that he gave false and misleading information on his pre-fight questionnaire. Specifically, they take issue with his answer of "no" to the pre-fight question "Have you take/received any prescribed medications in the last two weeks?". They also claim that despite admitting to having Attention Deficit Hyperactivity Disorder (ADHD), he did not list it as a "serious medical condition".
In both the May hearing, and also in the petition filed Thursday, Diaz's lawyer Ross Goodman argues there is no basis for suggesting Diaz lied or gave false information because Diaz's admitted use of marijuana in California - where he is a resident - comes from and can only come from a doctor's recommendation. In other words, marijuana is not a prescribed drug in the state of California. Doctors are able to write informal recommendations for medicinal use of marijuana that can be used at licensed marijuana dispensaries, but not formal prescriptions for use of federally regulated medicine available at common pharmacies.
With respect to the issue of having a "serious medical condition", Diaz's team charges the NSAC "provided no interpretive guidance" for the definition of ADHD. In the absence of any parameters, they argue ADHD does not qualify since it is neither life threatening nor incapacitating.
Should a judge rule in favor of Diaz, his fine and suspension by the NSAC could be overturned, thereby freeing him to compete immediately.