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By: Jamie Penick, MMATorch Editor-in-Chief
Nick Diaz isn't giving up the fight just yet. Following a multi-hour disciplinary hearing on Monday that essentially led nowhere, Diaz was suspended for a year and fined 30% of his purse for a positive test for marijuana metabolites. Now, his attorney, Ross Goodman, says they're considering challenging the ruling in district court.
"We would file a petition for judicial review in front of a district court judge," Goodman said of their next potential step in an interview with MMAFighting.com. "It would entitle a judge to basically look at the hearing anew."
Per the MMAFighting report, judicial review is a "method can be used in cases where the petitioner believes the state agency broke the law, acted unfairly or made a decision not based on facts."
In this particular hearing, Goodman challenged the NSAC's contention that marijuana metabolites are a prohibited substance. With marijuana on the WADA code as a substance prohibited only in competition, and metabolites only being evidence that someone has used the drug and not when, Diaz's medical use of marijuana did not constitute a violation, Goodman says.
"It was clear by their questioning that their decision was already made up," Goodman said. "In my closing argument I basically reminded 'Skip' Avansino, who is the chairman [of the NSAC], that in the TUE hearing that occurred before us [with UFC middleweight Chael Sonnen] he said 'the presence of a prohibited substance would constitute a violation'. Those were his words. The chairman of the commission."
"All you have to do is look at the ruling and tell me where it says that Nick tested for the presence of marijuana. Because he didn't. And if you're saying 'the presence of a prohibited substance would constitute a violation' then you have to show me where in the rules marijuana metabolite is a prohibited substance. They never answered that. They never responded to that. They just made up a rule. They read the rule in there. It was like on an ad hoc basis."
"[Avansino] agreed with what our whole position is: that evidence of prior use of a prohibited substance is not presence of a prohibited substance," Goodman continued. "Everyone acknowledges that marijuana metabolites means that at some point before that you used marijuana, but evidence of prior use is not a violation. You have to show presence of prohibited substance according to Nevada rules to constitute a violation. That was never addressed. That was never responded to. That was never clarified."
"Effectively what they did, was punish him for legally consuming marijuana more than a week before the fight and then having an inactive component sequestered in his fat tissue after the fight."
Goodman also contended that the commissioners had little grasp of their own rules, and wasn't surprised by the outcome at the end considering confusion early in the hearing between the NSAC and WADA rules.
"It was clear that the commissioners didn't really prepare for the hearing," Goodman said. "It was really alarming, the fact that something so basic, so clear, which is that marijuana in general is allowed out of competition but not in competition. To kick off the hearing suggesting there is no distinction indicated what was to come after that."
Penick's Analysis: This is a decision that should be challenged, if only because of the exorbitant fine that the commission handed down. Their status as judge, jury, and executioner is far too powerful in a case like this where they did essentially ignore much of the arguments being made or distinctions being made between codes, while confusing other facts, distorting the issue with a ridiculous line of questioning and more. It's an outcome that should be challenged, because at the least there were issues with the NSAC's code brought up that should have been addressed, but they weren't hearing any of it during that meeting. Will anything happen with a judicial review? Maybe, maybe not, but it's absolutely something that needs to be looked over with how that hearing played out yesterday.
[Nick Diaz art by Grant Gould (c) MMATorch.com]
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Jamie Penick, editor-in-chief
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