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By: Jamie Penick, MMATorch Editor-in-Chief
Nick Diaz's attorney, Las Vegas' Ross Goodman, has filed a second response to the Nevada State Athletic Commission following their allegations that Diaz provided "false or misleading information to the Commission."
Those allegations stem from his pre-fight medical questionnaire, in which he answered "no" to the following questions:
* Do you have any serious medical illnesses, conditions?
* Have you taken / received any prescribed medications in the last two weeks?
* Have you taken / received any over the counter medication / products in the last two weeks?
That amended complaint only came after Diaz's camp attacked the positive test for marijuana metabolites from UFC 143, making a compelling argument that Diaz hasn't broken any rules under Nevada's guidelines. Goodman contends that the follow-up complaint - as well as the attacks on Diaz's character by publicly stating that he "lied" to the commission - came because the NSAC knew they didn't have a case against Diaz on the issue of metabolites versus the active component of marijuana in THC.
Now, Goodman's response regarding the questionnaire contends that once again, Diaz has done no wrong. Chief amongst the issues is the NSAC's assertion that Diaz provided false or misleading information by answering "no" to those questions. Goodman's response says that's simply not the case.
"All of the answers Diaz provided to the Commission on the Pre-Fight Questionnaire (“Questionnaire”) were expressly qualified as 'true and accurate to the best of [Diaz's] knowledge.' In other words, in drafting the Questionnaire, the NSAC expressly imposes only a standard of good faith (and not, e.g., a physician’s standard) on unarmed combatants," the response reads.
"The [first amended complaint (FAC)] alleges no facts upon which a finding could be made that Diaz provided anything other than good faith responses to each of the questions on the Questionnaire," the response continued. "Absent a finding that Diaz intended to deceive the Commission in providing the answers he did, it is not open to the Commission to find that Diaz provided 'false or misleading' information. Diaz makes no representation on the Questionnaire beyond the representation that each answer provided is true and accurate 'to the best of his knowledge' — and hence it is only an attack of Diaz’s bona fides that could form a potential basis for proceeding under this sub-rule (if there was some factual basis for doing so)."
"Not only does the FAC allege no facts which could tend to establish Diaz’s bad faith in filling out the Questionnaire, but the answers Diaz provided are precisely those that the NSAC should have expected where it elected not to provide definitions of any potential technical terminology on the Questionnaire."
"In the absence of prescribed definitions, Diaz relied on the general understanding of the terms 'prescribed medications', 'over the counter medication' and 'serious medical illness.' The lack of any other information or guidance from the NSAC makes it difficult to know what the NSAC actually intended especially if, in fact, the drafters of the Questionnaire intended to rely on specialized terms defined in out-of-state regulations (which is not conceded and is expressly denied)."
The response proceeds to explain why Diaz reasonably would not have seen marijuana as a prescribed or over the counter medication, as well as why he wouldn't have asserted his attention deficit hyperactivity disorder was a "serious medical illness." As he answered said questions "to the best of his knowledge," Goodman contends he again has done nothing wrong.
There is still no date set for Diaz's hearing with the commission, and the NSAC may yet issue another response based upon this submission.
Penick's Analysis: I continue to believe that Diaz absolutely has a case here, but with the NSAC holding his fate in their hands, and issuing the response that they did to Diaz's initial claims, I don't know that any argument they make is necessarily going to sway them. The NSAC's contention that Diaz "lied" to them doesn't hold weight with this reasonable response from Goodman, at least from a legal sense, and it's once again going to come down to the issues of metabolites vs. THC, and if they can sway the NSAC on that definition. This situation is far from finished, but hopefully it gets to a hearing sooner rather than later to at least have Diaz's short term future cleared.
[Nick Diaz art by Grant Gould (c) MMATorch.com]
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Jamie Penick, editor-in-chief
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