BANE’S LEGAL TAKE 11/2/15: Attorney’s perspective on Diaz’s negotiations with NAC, Palhares’ two-year suspension, more

By Michael Bane, MMATorch Contributor

Nick Diaz (artist Grant Gould © MMATorch)

Nick Diaz’s legal team in negotiations with Nevada commission, Diaz could potentially return by 2016/ Nevada Athletic Commission chairman Aguilar confirms settlement talks happening with Nick Diaz’s legal team

It appears cooler heads may prevail. If the Nevada Athletic Commission is even entertaining the idea of some sort of settlement with Diaz, it means they’re open to a change in the five year suspension they initially imposed on Nick Diaz. This is undeniably a smart call by them.

If Wanderlei Silva’s situation taught us anything, it’s that there are limits to the punishments that the NAC can impose. Silva’s lifetime ban was noted as being “arbitrary and capricious.” As maddening as Silva’s actions were in fleeing a drug test (and as idiotic as his internet rants have been since), there was no precedent for what the NAC tried to hand out, and no guidelines that support such an extreme penalty.

Diaz’s case is largely the same. Not only were there no previous actions indicating a five year suspension was justified, the NAC also ignored their own previously approved (but not yet instated) recommendations for drug related discipline. Were he to appeal this like Silva, and he’s made it clear that his legal team was ready to fight this to whatever end he needed to, the suspension would have likely been thrown out as well, and sent back to the NAC for a more lenient decision.

The NAC has numerous reasons to avoid this undesirable course of events. Much of the fighting community and its fans have a low opinion of the competence and ability of the NAC to handle it’s duties. This would be further magnified if they were to get publicly smacked-down (again) by Judicial Review for doing their jobs incorrectly.

Besides the bad press, the NAC has some additional motivations to settle this without a big fight. There were some really large discrepancies between the tests done by the WADA approved lab and the Quest lab that the NAC based their suspension on. Bringing the testing procedures into question and further dissecting the methods used could open a rather large can of disastrous worms for the NAC. Also, a single overturned suspension is an isolated incident. A second one starts to establish a pattern where challenging the NAC in court results in a victory for the disciplined fighter. The NAC doesn’t need to waste continued resources by having to defend these types of appeals by fighters, and it doesn’t need to give them encouragement to do so. Even in the event that the challenges are without merit, it’s still a waste of time and money. A reasonable settlement with Diaz can help to avoid that scenario.

Diaz hasn’t fought since January 31 of this year. Expect him and the NAC to agree on something in the neighborhood of an 18 month suspension, retroactive to that last fight. This would put him on track to fight again right around UFC 200. It allows the NAC to save face by still actually imposing some type of suspension on Diaz, while avoiding a public backlash and humiliation when their decision is overturned and their policies are ripped into. As for Diaz, he fights so infrequently, this seems about the time he’d be gearing up and ready to go again for another payday anyway.


Report: Public pressure, death threats pushed NAC to settlement talks in Nick Diaz suspension case

The public pressure part of this is great, if it is indeed true. While the NAC board is not elected by the voting public, the governor that appoints them is. Generate enough bad press for the elected official that puts you into office and both you and said official may not be long for governmental positions.

The death threats, on the other hand, are way out of line. There’s a difference between feeling passionately about an issue and exercising your freedom of speech, and threatening someone’s life. Not only is this type of speech not protected, it’s a criminal matter. Hopefully the threats were empty, and whoever made them faces their own type of punishment by the proper authorities.


Stripped WSOF Champ Rousimar Palhares suspended two years by NAC over held submission on Jake Shields

If the NAC was looking to make an example of someone or to test the limits of their disciplinary powers, this was a great time to do so. Palhares’ continued behavior of attempting to rip limbs off of people past the end of the MMA fight made him a prime candidate for a lengthy suspension. It looks like the NAC is a bit gun shy, fearing a suspension with even the slightest amount of debatable length could come back to haunt them.

They took the safe route, and it’s really too bad. Palhares seems to be both a lunatic, as well as a cheater. Shields could have tried to press for criminal charges against everyone’s (least) favorite leg-lock expert for assault and battery, as intentionally trying to blind a man was not even remotely what he had consented to when he stepped into the cage. Palhares was extremely fun to watch, but as he has shown zero contrition for, or even recognition of, his actions, I don’t think two years is going to change anything he does. If there’s ever been a candidate for a lifetime suspension, it’s him. Hopefully a return in two years won’t result in the permanent injury of another fighter.


Wanderlei Silva’s re-hearing with Nevada Athletic Commission delayed due to clerical error

Just from a pure entertainment standpoint, I’m rather disappointed this didn’t happen yet, although the delay is pretty inconsequential. While Silva declared victory for all MMA fighters everywhere when his suspension was vacated, it didn’t clear the way for him to fight anytime soon. He was also appealing whether or not the NAC had jurisdiction over him, as he was not licensed by the state of Nevada when he fled his drug test. The appeals court ruled that they did have jurisdiction, but that the penalty them imposed wasn’t fitting.

Basically, this means he’s still going to get suspended. I’m not convinced he even knows this, as paying attention to anything he says or rants about shows a man who is pretty unaware of the process he’s involved in. It’s not like he was going to fight again anytime soon, even if he were to get off scot-free. He’s under contract with the UFC, barring his way to compete elsewhere, and he’s also being sued by the UFC for alleging their fights are fixed. Expect Silva to blow his top in what should be an amusing video log, sometime after he’s suspended for a more reasonable duration.

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

[Nick Diaz art by Grant Gould (c)]

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