Despite a stinging rebuke at the hands of the Nevada State Athletic Commission (NSAC) on Monday, Nick Diaz and his legal team have not given up the fight to secure the fighter a license.
Diaz's lawyer Ross Goodman believes the commission acted in disregard for established and unequivocal Nevada statutory code at Monday's hearing. After being contacted by MMA Fighting, Goodman says Diaz and his legal advisors are strongly considering petitioning a district court to review the NSAC's decision.
Should they choose to move forward, "we would file a petition for judicial review in front of a district court judge," Goodman told MMA Fighting. "It would entitle a judge to basically look at the hearing anew."
Judicial review is a process by which if one requires an occupational license from the state and are denied such authorization by the relevant state agency, the petitioner can ask relevant courts to weigh assess the merits of the petitioner's claims. This method can be used in cases where the petitioner believes the state agency broke the law, acted unfairly or made a decision not based on facts.
In addition to the review, Goodman contends they could also motion the judge for a stay the suspension while he or she deliberates the larger merits of the petition.
Diaz tested positive for marijuana metabolites following his loss to Carlos Condit at UFC 143 in February of 2012. For the infraction, the NSAC suspended Diaz at a hearing Monday in Las Vegas for one year effective from the date of his last fight and fined him 30 percent of his purse, or approximately $60,000. Diaz must also pass a drug test when reapplying to earn a license.
While Goodman objected to several questions asked and conclusions reached by the NSAC, Diaz's legal case primarily rests on whether marijuana metabolites are banned substances in the state of Nevada.
Goodman argued both Monday and in documents related to Diaz's previous lawsuit against the NSAC that marijuana metabolites are not a prohibited substance in the state.
Marijuana is prohibited for fighters licensed in Nevada by virtue of NAC 467.850(2)(f), which incorporates all prohibited substances on the current Prohibited List published by the World Anti-Doping Agency (WADA). However, Goodman argues marijuana is only prohibited "in competition". Goodman maintains WADA permits use of marijuana and other cannabinoids outside of competition and per the construction of Nevada's stated regulations, in that state as well.
Goodman suggested Monday marijuana metabolites are not grounds to find Diaz guilty of violating the law. Given the outcome of the hearing, however, it appeared unpersuasive to the commission.
"It was clear by their questioning that their decision was already made up," Goodman said. "In my closing argument I basically reminded 'Skip' Avansino, who is the chairman [of the NSAC], that in the TUE hearing that occurred before us [with UFC middleweight Chael Sonnen] he said 'the presence of a prohibited substance would constitute a violation'. Those were his words. The chairman of the commission."
"All you have to do is look at the ruling and tell me where it says that Nick tested for the presence of marijuana. Because he didn't. And if you're saying 'the presence of a prohibited substance would constitute a violation' then you have to show me where in the rules marijuana metabolite is a prohibited substance."
"They never answered that," Goodman continued. "They never responded to that. They just made up a rule. They read the rule in there. It was like on an ad hoc basis."
"[Avansino] agreed with what our whole position is: that evidence of prior use of a prohibited substance is not presence of a prohibited substance. Everyone acknowledges that marijuana metabolites means that at some point before that you used marijuana, but evidence of prior use is not a violation. You have to show presence of prohibited substance according to Nevada rules to constitute a violation. That was never addressed. That was never responded to. That was never clarified."
"Effectively what they did," Goodman concluded, "was punish him for legally consuming marijuana more than a week before the fight and then having an inactive component sequestered in his fat tissue after the fight."
Goodman also expressed surprise at what he perceived as the lack of basic literacy among the commissioners on Nevada's own regulations as it related to banned substances. Early in the hearing, commissioner Pat Lundvall appeared confused regarding what Nevada's laws and those of WADA did and did not say.
"It was clear that the commissioners didn't really prepare for the hearing," Goodman maintained. "It was really alarming, the fact that something so basic, so clear, which is that marijuana in general is allowed out of competition but not in competition. To kick off the hearing suggesting there is no distinction indicated what was to come after that."
Goodman argues Nevada borrowing WADA's Prohibited List of banned substances to help the commission regulate drugs of abuse is a key first step to regulating banned substances. If they really wish to regulate metabolites, however, then Goodman recommends they also adopt WADA's Code.
"If they felt so strongly about the issue, then they should have amended the rule or modified the rule in the future to incorporate and adopt WADA's code which does constitute a violation if you have any metabolite in your system. Because the rule says any prohibited substance, it's markers or metabolites present in your sample. That's what WADA's Code says, which is something Nevada has not adopted. There's no counterpart rule in Nevada. There's nothing in the rule that says metabolites are a prohibited substance."
Goodman was also dismayed at what he felt was a line of irrelevant questioning among the commissioners that attempted to portray Diaz's use of marijuana as recreational or performance enhancing. On the latter charge, Goodman notes the separation of competition testing as a refutation of the commission's argument.
"You heard him testify. That's what happens when you have ADHD: you can't focus. They tried to construe that as 'oh, that must be performance enhancing'. That is absurd. There was nothing more ridiculous than that statement."
"Instead of performance enhancing, it's more life enhancing for Nick. It helps him out. It helps him deal with attention deficit disorder. Of course, WADA has already determined that which Nevada adopts: that marijuana is not performance enhancing because it separates it between in and out of competition. Well, they don't do that for other performance enhancing drugs in WADA."
As for Diaz's attitude after repudiation, Goodman contends Diaz is still ready continue his MMA career. "Nick was disappointed obviously, but he's in good spirits. He's in good spirits in general. He knows the truth of it. He knows he didn't lie to the commission. He knows he didn't mislead the commission and he understands he did everything he was told to do legally. He got a physician's statement, he was qualified to use it, he understands the rules do not require metabolites as a violation."
"Nick's sworn in his affidavit he's not retired. He's only 28 years old, he's at the top of his game. I don't want to speak for Nick, but I think he's looking forward to getting back in the cage as soon as he can."