BANE’S LEGAL TAKE: An attorney’s perspective on Nick Diaz vs. Nevada Athletic Commission

By Michael Bane, MMATorch Contributor

Nick Diaz (artist Grant Gould © MMATorch)

It’s only fitting that the governing body of the biggest prize fights in the United States would be the one that we hear about in the news the most. What’s unfortunate is that the reason they so often show up on our radar is due to perceived incompetence, inconsistency, or even childish behavior.

Earlier this year the Nevada Athletic Commission (NAC) unveiled new, harsher punishments for violations of their drug testing policy. While some have correctly pointed out that the five year punishment issued to Nick Diaz was in excess of the guidelines they themselves issued, those new suspensions and fines didn’t take effect until September 1 of this year.

Many have taken issue with the NAC (and by extension, the World Anti-Doping Agency) for prohibiting marijuana altogether. The common misconception is that an antiquated moral agenda is why cannabis is prohibited. This misconception is further strengthened by the general shift in national opinion of the substance. Were it true, the outrage shown against stiff punishments for the recreational use of a relatively safe (I’ll argue all day it’s less damaging than alcohol) substance would be justified.

A quick look at the list of banned substances shows that this is not the case. The NAC isn’t trying to uphold any moral agenda by the prohibition of cannabis in-competition. Rather, their reasons have nothing to do with the legality of the drug or trying to stop recreational drug abuse in the country. If a fighter wants to light up daily out of competition, not only does the NAC not care, they won’t discipline the fighter if he tests positive for marijuana in and out of competition. We saw the same thing happen when Jon Jones got coked out and was inadvertently tested for it during an out of competition test. There’s nowhere in the US, at least that I’m aware of, that cocaine is legal. But, true to their testing standards, Jones was not punished for doing an illegal drug, because that particular substance is not banned out of competition.

There are other, perfectly legal, substances on WADA’s (and by extension, the NAC’s) list of banned substances. Stimulants found in allergy medicine, diuretics (caffeine can potentially be one), and sleep aids are disallowed to various degrees. The reasoning for these is not morality, rather an edge that a fighter might get by using them in competition. You can argue whether or not cannabis provides an edge to a fighter or not, but the powers that be have determined it does, and it’s therefore not allowed because of it. That’s it, and it’s all spelled out.

While the five year suspension of Nick Diaz appears inconsistent, arbitrary, and completely vindictive, it’s still hard to feel sorry for him. He’s made no secret about how regularly he smokes weed. While he has a medical marijuana prescription, he’s also failed to follow proper protocol in applying for an exemption from the NAC. It would almost assuredly be denied, but that’s not the point. Diaz continues to knowingly break the rules, smoke marijuana leading up to fights, and then crying after he pisses hot because he cost himself tons of money and the ability to make more of it. Let’s throw out the fact he’s shown next to nothing in contrition (he told the NAC something to the effect of lighting up as soon as his previous hearing ended when he was facing discipline for his second offense). He’s doing this to himself. Whether he’s stupid, addicted, or just can’t manage to calculate the time needed to get his levels down to acceptable, he’s in violation, and subject to discipline because of it.

None of the above makes the NAC’s actions right, or even reasonable. The NAC made a huge statement about attempting to clean up the sport by proposing extremely strict penalties for drug testing failures. For a moment, let’s ignore the fact that there are issues with the testing that Diaz’s suspension is being based on. Given the debate that the committee engaged in when attempting to determine the appropriate discipline for Diaz, it’s obvious they at least felt they had some discretion in the matter. It would have made perfect sense to adhere to the recently proposed guidelines that they had made public. In showing a complete lack of self-awareness after what happened with Wanderlei Silva, they discussed a lifetime ban for Diaz, before settling on “only” five years, which may as well be a lifetime ban for MMA’s favorite pothead.

There’s no reason for this. If you propose your ideal guidelines and punishments, stick to them when you have the chance (it is noted that the commission actually fined Diaz less than their new guidelines would have provided for). Doing what they did is both inconsistent with, and undermining to, what they had proposed. Why make your own guidelines something that we’re already not taking seriously?

The why of it is even more laughable. There’s little doubt that the commission acted as they did to be vindictive. They felt disrespected that Diaz doesn’t think much of them or their rules. Having him say “Fifth Amendment” repeatedly over 30 times is just juvenile. Guess what, Nick Diaz doesn’t care about you or your rules. He broke them, and he should be punished. This isn’t personal. Do your job and move on. This power-tripping on a governmental level, as well as a complete lack of professionalism, is an embarrassment that should not be seen at high positions of administration.

There is some hope for Diaz. In May of this year, a Nevada District court overturned the NAC’s lifetime ban of Wanderlei Silva as being a punishment that was “in excess of the statutory authority of the agency.” While the court declined to define the limits of that authority, it’s obvious that it was exceeded. The court also called the punishment “arbitrary and capricious,” two words that we can accurately use to describe what’s going on with Diaz. You have to be pretty clueless to get a punishment kicked back from a court, and then months later consider the same type of punishment. I’d say cooler heads prevailed, but in not following their own proposed guidelines when they had the chance, it’s obvious they did not.

I fully expect Diaz to appeal his suspension and for the court to also kick his case back to the NAC to be reheard. I do not expect him to escape punishment altogether, although his suspension should be reduced. We’ll address the reasons for that in our next legal take, but for now, expect Diaz to spend the beginning of his suspension taking on the NAC in the court system. And smoking weed, of course; this is Nick Diaz after all.

Michael Bane is an MMA enthusiast and attorney practicing in Chicago, Illinois.

[Nick Diaz art by Grant Gould (c)]


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