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By: Jamie Penick, MMATorch Editor-in-Chief
Nick Diaz may or may not fight again inside the Octagon, but he will put forth a fight with the Nevada State Athletic Commission, as his lawyer has issued a response to the NSAC in regards to his failed drug test for marijuana metabolites at UFC 143.
Ross C. Goodman, Diaz's attorney for this case, issued the official response to the commission ahead of an impending disciplinary hearing, and he put forth a more than compelling argument.
The fact that Diaz had used marijuana in the weeks leading up to his fight with Carlos Condit is not in question. He has a prescription for medical marijuana in the state of California and has never been shy about his use of the drug. Where the commission finds themselves in trouble is the inherent problems in proving that Diaz was using close enough to his fight to be negatively affected or impaired.
As Goodman lays out in the complaint (full text of which can be found at FightOpinion.com), there are a couple of issues at play. First, Nevada has adopted the standards of the World Anti-Doping Association (WADA), which differentiates between in-competition and out-of-competition use of any prescribed substances. In the case of marijuana and marijuana metabolites, they are not prohibited "out-of-competition" for a legally prescribed user.
WADA does not prohibit them in recognition of the long detection time for metabolites in the user's system, which can linger in the body for days or weeks, long after the physiological effects of the drug has worn off.
That last part is key. Because the metabolite itself is not classified as a psychoactive substance, nor is it classified as a Schedule I or II substance by the Pharmacy Board. Because the presence of the metabolite only shows that Diaz used, and not when, and because they argue that Diaz stopped his medicinal use of the substance eight days prior to his fight, they believe the Commission should find that Diaz has not tested positive for a prohibited substance.
Further, if he did not test positive for a prohibited substance based on these arguments, they believe Diaz should not be subject to disciplinary action from the Commission. The NSAC will have to take this argument into consideration, and Diaz's lawyer will argue said statements further, when the disciplinary hearing itself is held, likely in April.
Penick's Analysis: As Zach Arnold at FightOpinion points out, it's almost the exact argument against disciplinary action to Diaz that Vancouver Athletic Commission member Jonathan Tweedale made in a guest editorial at BloodyElbow.com in February. With one commission coming out against the NSAC, and based on the testimony of Goodman's expert, the arguments that they've made herein, and the impossible task the commission has of determining when Diaz used prior to the fight, I think Diaz's camp has a very good case. The commission itself will still ultimately decide, but this isn't a situation like Chael Sonnen showing up with an incompetent doctor to a farcical CSAC hearing and trying to talk circles around testosterone use. This is a legitimate argument, because marijuana in and of itself is not banned when looking at how their own rules and regulations, as long as it's used with a prescription and out-of-competition. This is going to be a very interesting case for the NSAC, and is definitely going to be a precedent-setter moving forward. However, if they can't prove that Diaz was under the influence of marijuana in his fight with Condit, then they don't have much to fall back to uphold any lengthy suspension. Based on this argument, I think there's definitely a chance Diaz avoids suspension here.
[Nick Diaz art by Grant Gould (c) MMATorch.com]
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Jamie Penick, editor-in-chief
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