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Attorney: Nevada Athletic Commission 'was out to embarrass' Nick Diaz

Esther Lin, MMA Fighting

One of the things most criticized about Nick Diaz's defense at his Nevada Athletic Commission disciplinary hearing was the decision to have him take the Fifth Amendment rather than answer questions.

Rather than just accepting that Diaz would not answer, NAC commissioner Pat Lundvall fired query after query and Diaz plead the Fifth to all, including simple ones like, "Are you a UFC fighter?"

One week later, Diaz's lawyer Lucas Middlebrook has no regrets about the strategy and he plans on using Lundvall's words — and the behavior of other commissioners — against the NAC at the next judicial step.

In deliberations, one of the things the commissioners brought up was how they did not like the fact that Diaz refused to testify. The NAC ended up handing down a five-year suspension and $165,000 fine for failing a drug test for marijuana at UFC 183. It was Diaz's third offense in the state.

"Nick was not gonna get up there and be presented with an impartial questioning or examiner," Middlebrook told Ariel Helwani on Monday's edition of The MMA Hour. "I still feel like the commission was out to embarrass him and for lack of better terminology to trip him up. We did not see any positive value coming from having him answer any of their questions. Instead, he invoked the right that everyone in this country has under our constitution, [which] is to not testify against yourself. And that right includes that a negative inference cannot be drawn against you for invoking that right. We firmly stand by that decision."

There are videos going around online of the commissioners mocking Middlebrook and Diaz's defense. In one, commissioner Anthony Marnell jokes with chairman Francisco Aguilar about not bringing his black robe following Aguilar upon overruling a Middlebrook objection. Lundvall tells Middlebrook "he better be" with regards to Diaz testifying in another clip.

"Any evidence or demonstration that Nick did not receive an impartial hearing, thereby denying him due process is only going to bolster our credibility and our support for an appeal," Middlebrook said. "It really doesn't bother me."

Diaz's team has 30 days to file a petition for judicial review. At that point, the commission will respond and then the case could go before a judge.

Middlebrook's main arguments revolved around the fact that Diaz actually passed two fight-night tests at UFC 183. So, he only failed one out of three taken. The one Diaz failed was taken to a lab not accredited by the World Anti-Doping Agency (WADA); the negative results came from a WADA lab.

"I really am confident in our case in front of the judicial system," Middlebrook said. "I'm confident because of the facts and evidence we put on in the hearing. I think they were compelling. And I think we have good legal arguments for an abuse of discretion on behalf of this commission and really an abuse of power and the denial of due process. We'll bring up everything from the comments on minor objections to their misinterpretation of how the Fifth Amendment interplays with the regulations and really just an inability to listen to the facts and make an appropriate decision based on those facts."

Middlebrook said he and his colleagues had watched previous NAC hearings which helped form their strategy coming in, and they were therefore not surprised by how the different commissioners acted. The objections he made, all of which were overruled by Aguilar, were necessary, Middlebrook said, to lay the foundation for the appeal process.

"I felt from the very first objection to a leading question that I proffered and I kind of got some laughs from a couple of commission members, I knew those objections wouldn't go very far in the hearing," he said.

"We felt very confident about the facts and evidence. But I don't think we were going into the commission with an aspiration that those facts and evidence were going to lead to a great result from the commission. We went in knowing that we needed to present those facts and that evidence in a matter that was clear, that could be understood and provide a really solid record if we had to take it up to a higher judiciary body."

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