05-25-2012, 03:58 AM
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Nick Diaz and His Legal Team Are Strongly Considering a Challenge to NSAC's Ruling
May 22, 2012 - 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