On July 5, 2014, Wanderlei Silva and Chael Sonnen were supposed to square off at UFC 175 for a grudge match whose rivalry had reached new heights by their stints as coaches on “The Ultimate Fighter: Brazil 3”. Between Sonnen's failed drug tests, and Wanderlei's attempt at flat out running away from them, the bout was ultimately scrapped, as both fighters were suspended by the Nevada Athletic Commission. Subsequent retirements by both competitors have deprived the world of seeing two fairly polarizing individuals fight each other.
Sonnen was given a two year suspension for his failed tests. He had announced his retirement from the sport right before his discipline was handed down. While the UFC ended up terminating his contract as an analyst, he landed on his feet with ESPN during the latter part of 2014.
Two years is a long time to be suspended in a career that is generally very short-lived. The punishment doled out to Silva, however, made Sonnen's look like a slap on the wrist by comparison. Silva was issued a $70,000 fine, and given a lifetime ban from MMA competition in the state of Nevada. Four months later, Silva has filed lawsuit against the commission in an attempt to get the commission's ruling thrown out in state court.
There are a couple of practical questions to answer before getting to the heart of Silva's lawsuit. First of all, why does a retired fighter care if he's banned for life by the NSAC? That's a pretty simple one: Silva wants to fight again. People need money, and a fighter's stock and trade require that he fight to do so. Silva has long been a fighter known to speak whatever he's thinking at the time (without fully thinking it through), and it's very possible his retirement was a spur of the moment decision brought on by the frustration he was experiencing. Given he's an age where he can still perform well enough to earn a sizable paycheck with his name recognition, it's not surprising he may be rethinking his rather hasty retirement decision.
Secondly, does Silva really expect that the NAC would license him if he managed to get their ban thrown out in court? Or course not. While the ban could get tossed, it doesn't mean that the NAC would then have to license Silva and let him fight within their state. And as long as director Bob Bennett and the members of the commission who banned Silva are present, it's just not going to happen. So what then, is Silva hoping to accomplish with his suit? Oh, and let's just get the matter of the $70,000 fine out of the way real quick. Silva hasn't paid it. He never intended to pay it. He won't pay it. The only motivation a fighter would have to pay any type of fine is because non-payment would mean they aren't getting licensed to fight.
The problem that Silva has with a lifetime ban by the NSAC is that other state commissions are going to uphold the ban in their own states. A ban in Nevada essentially equals a ban everywhere in the US. If Silva ever does officially un-retire, he's going to be limited to taking his brawling style to a ring in another country.
Thirdly, why the huge discrepancy in discipline against Sonnen and Silva? For starters, they were disciplined for different things. Sonnen failed two drug tests, Silva just flat out ran from them. Let's try to ignore potential difference or non-difference in magnitude of bad behavior for a second. We have two different bad behaviors, hence two different punishments. Based on that alone, it's perfectly reasonable that the different violations would be handled differently.
This much differently, though? It would appear that the NAC was trying to making a statement when they made their ruling: Failing a drug test is bad, but running away from a drug test is about as bad as it gets. It makes sense too, if you are randomly testing athletes for drugs, the whole system blows up if the athletes flee the scene any time someone approaches them with a plastic cup. And given that Silva was retiring anyway, the statement becomes much more important than the actual discipline that Silva wasn't going to have to deal with anyway. I'm not saying that the punishment is justified, rather giving an explanation for it, or at least trying to. The NAC tends to be some maddeningly inconsistent with what they hand down, it's an educated guess at best as to what their motivations are.
Silva's argument against the discipline is a pretty simple one. His legal team is attacking the discipline on the grounds that the NAC did not have the authority to punish Silva, as they lacked the jurisdiction to do so. Jurisdiction is the authority given to a legal body or person to make judgments, decisions, rulings, etc. over a defined area of responsibility. Specifically, Silva is arguing that the statutes that give the NAC authority limit their ability to discipline only fighters that are licensed at the time by the commission. As Silva was not licensed at the time, his contention is that he cannot be punished for behavior he engaged in then.
Note again, there's a difference between denying someone a license to fight, and suspending his license or banning him altogether. Denial might not even be considered discipline, as the person who is denied is in the same position he was before he applied: he has no license. Interestingly enough, one wonders if Silva had this train of thought the whole time, as part of the reason he was initially pulled from the fight at UFC 175 was due to the fact he had not even applied for a license.
Silva's suit takes a very narrow view of when a commission is allowed to impose affirmative punishment on a fighter. The Nevada Revised Statues and the Nevada Administrative Code are where the commission derives its authority, and Silva's legal team cites sections of both throughout the filing. The main focus of their argument hinges on the language of NAC 467.850(6) which states: "A licensee who violates any provision of this section is subject to disciplinary action by the Commission" (emphasis added). I'd like to take the opportunity to point out that in the filed suit I read, Silva's lawyers actually cite NAC 467.860(6), which doesn't actually exist based on my research. Nitpicking? Yes, but as you'll see at the end, I didn't care much for how this complaint was drafted.
Silva's very limited view of what the NAC can punish would lead to some pretty interesting consequences if he were to win. Fighters could refuse to take tests prior to being licensed. They also could not be punished (fined or banned/suspended) for any tests failed before they were licensed. In reality, this wouldn't likely be an issue. While the NAC couldn't "punish" the fighters for their failed or lacking testing, they could just refuse to license them to fight if any of those things happened. But on another level entirely, the UFC (or other fighting organizations that have a lot of control over their fighters) could put a stop to it as well.
The UFC pulled Silva from his UFC 175 fight for the reason that he had not applied for a license in time. Applying for a license does not necessarily mean you are going to get one, of course, but the UFC wants to minimize the amount of time they spend promoting fighters who are going to be dropped from cards. An unlicensed fighter is not going to fight on a given card. If a fighter tries to play games by applying late, the UFC can put the kibosh on that very quickly by just not allowing him to fight at all, and probably cutting him if they feel like it. Secondly, the UFC can probably start putting language in their fight agreements requiring fighters to apply for licenses a minimum amount of time before the fight is to occur. As the UFC has been voicing it's desire to see more and consistent drug testing, it would be in their best interest to make sure their fighters don't have the opportunity to skip out on licensing technicalities. So while it may seem that a ruling against the NAC might change things dramatically, that wouldn't be the case.
As stated, Silva's lawsuit has a very limited view of whom the NAC can punish. They have taken the view that NAC 467.850(6) limits the jurisdiction of commission punishments to ONLY licensed fighters. A potential argument that the NAC could try to make is that fighters such as Silva, who have announced their intentions to fight in Nevada, avail themselves to the jurisdiction of the NAC. The NAC could attempt to argue that as they are "vested with the sole discretion, management, control and jurisdiction over contests…" (statement by the NAC cited in Silva's lawsuit) that their jurisdiction allows them to deal with all aspects of a fight, including pre-licensing drug testing. That, coupled with an argument that management and control allows them to impose discipline to unlicensed fighters who fail drug tests, would be a very broad interpretation of the law that would allow them to do what they did.
But perhaps a better argument comes from the Nevada Revised Statutes themselves, and it's a pretty simple one. NRS 467.0103 defines a "Contestant" as "…any person who engages in unarmed combat for remuneration." In our current situation, Silva could be seen as a contestant. NRS 467.110(1) and NRS 467.110(1)(e) read together go on further to say "The Commission may suspend or revoke the license of, otherwise discipline, or take any combination of such actions against any contestant, promoter, ring official or other participant who, in the judgment of the Commission...Is guilty of an act or conduct that is detrimental to a contest or exhibition of unarmed combat…." Given this reading of the law, Silva, the contestant, could be disciplined by the NAC for conduct detrimental to a contest. It's not a stretch to say that running from drug tests is detrimental to the integrity of a fight.
Silva's take on the law is that the commission is limited to disciplining exactly one type of fighter, and that's the type that has a license. But a more broad view of those same laws would argue that licensed fighters are just one type of fighter the NAC can discipline, and the code was not intended to limit the commission's jurisdiction solely to them.
After reading Silva's suit in its entirety, I was a little disappointed, if not mildly annoyed, by how it was constructed. The art of persuasion is one that is exceptionally useful for an attorney, but subtlety is a quality that can help an argument be far more convincing than trying to bludgeon someone over the head with it. The suit itself was filled with many prejudicial and conclusory adjectives and other words. They also fail to get ahead of potential problems that might arise with their line of thought. It's much better to lead someone down a logical path and have them arrive at your conclusion themselves, then make them suspicious by trying to force a bunch of inflammatory statements down their throats. Legal matters aside, I simply found it poorly written. While I imagine Silva has hired highly competent attorneys for his lawsuit, this could have been drafted better. At the very least, they could have made sure they were citing actual sections of the law.
Michael Bane is an attorney and MMA enthusiast working out of Chicago, Illinois.
[Wanderlei Silva art by Cory Gould (c) MMATorch.com]
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