The Nick Diaz hearing is the perfect example of a regulatory body abusing its power. Whether you are a UFC fan or not, all eyes should be on Diaz's hearing on YouTube. We see a regulatory body unfairly test an athlete more than his fellow fighters. We see commissioners demean and embarrass Diaz, while showing little regard for fairness or legal procedure. We see a state attorney general provide biased testimony. Finally, we see an attempt to end a fighter's career over marijuana use.
Diaz is a popular UFC fighter with a history of marijuana use. He held a medical marijuana card for ADHD. He was suspended twice before, once for a positive drug test and once for skipping out on a drug test. According to the five member Nevada State Athletic Commission, Diaz has played games in the past such as: delaying drug testing, overhydrating to dilute his urine, applying for a license days before the fight and lying on his pre-fight licensing application. The commission is angry that he is continuously before them for discipline. They deem his repeat offenses disrespectful to their rules and the sport. This would all seem reasonable. However, Diaz's violations of the drug policy do not give the commission the authority to over-punish, ignore substantial evidence in his favor, insult him nor deny him his constitutional rights to a fair hearing. In failing to abide by its own standards, the commission makes a mockery of itself.
First, it relies on unreliable evidence. Most fighters are tested twice, once before the fight and once after. The NSAC unfairly singles out Diaz and tests him three times using two different laboratories. The first pre-fight test is anonymous, collected in accordance with World Anti-Doping Association methods and sent to a WADA approved lab. This test is negative, way below the threshold required for a positive test.
A second post-match test, done by an uncertified NSAC-trained collector, is sent to a non-accredited lab. The sample improperly has Diaz's name on it and contains half the amount of urine required by WADA. This test comes back positive, nearly five times greater than the minimum threshold. An hour and twenty minutes later, a third blind test is conducted by the same lab that conducted the first one and this also comes back negative, twelve times lower than the positive one.
How could Diaz test negative before the fight, positive after and negative again an hour and twenty minutes later? The attorney general says it's because Diaz overhydrated to dilute the THC metabolite in his urine. He says Diaz tested negative before the fight because he overhydrated, he tested positive right after the fight because he was dehydrated and then negative for the third test because he overhydrated again. Was Diaz told he was going to be tested a third time? How would he know to overhydrate to bypass a third test, when fighters usually receive two tests?
Further, Diaz's medical expert says it would be "medically implausible," for Diaz to hydrate that much without experiencing water intoxication. To get his THC metabolite levels 12 times lower in an hour he would have to drink several litters of liquid. The medical expert says that would lead Diaz's sodium levels to drop and his brain cells to swell leading to seizures or even coma and death. Furthermore, Diaz still hadn't returned to his pre-fight hydration levels at the time of the third negative test. How could he hydrate enough to bring his levels down to 1/12 what they were on the second test but not reach pre-fight hydration levels?
The state attorney general does not call a medical expert to support his hydration theory nor to challenge the defense expert's testimony. In fact, the attorney general cunningly neglects to mention the two negative tests in his legal complaint.
On cross-examination, the attorney general peppers his so-called "questions" to the defense's expert with accusations. He asks, "would it surprise you to know that Mr. Diaz has had trouble urinating in the past when he's been directed to do so by a commission employee?" Confused, the medical expert says, "I'm not aware." He continues, "would it surprise you that in 2011 he delayed urinating for hours and finally urinated at 2 a.m.?" Again, the medical expert shakes his head, "I'm not aware". These aren't real questions. The attorney general is offering testimony to get prejudicial information from Diaz's past on the legal record without supporting documents or witnesses. Diaz's attorney objects. His objection is overruled.
Finally it's time for Diaz to testify. He pleads the fifth. Commissioner Pat Lundvall insists on asking Diaz a series of questions and makes him plead the fifth to each question. Why would she do such a thing? We soon find out. Lundvall says that because Diaz pled the fifth, she may infer a negative answer to all of her specific questions. For example, she asked whether Diaz consumed marijuana on the night of the fight. Because he pled the fifth, under her absurd interpretation of NSAC guidelines, this means his answer is yes. Pleading the fifth, does not entitle the NSAC to insert incriminating answers into leading questions. The Fifth Amendment is designed to AVOID self-incrimination.
During "deliberations," the commissioners don't discuss the two negative tests or any of the evidence from the three-hour hearing. It's as if they made up their minds long ago. As punishment, Lundvall suggests a lifetime ban, even though the NSAC guidelines call for a punishment of three years suspension for a third marijuana offense. Lundvall wants the lifetime ban because Diaz doesn't "respect the panel," didn't testify and allegedly lied on his pre-fight licensing application. Discipline for lying is permissible, however, it is unconstitutional to punish Diaz for exercising his constitutional right not to testify. Furthermore, Diaz isn't required to kiss up to the commission. In fact, while Diaz sat quietly, the commissioners snickered multiple times during the hearing. Why were they laughing while ruling on someone's career and livelihood? At one point, a commissioner admonishes Diaz for being disrespectful while calling him, "Mr. Ortiz," unable to even get his name right. Lundvall insultingly asks Diaz if he can read English. Another inappropriate commissioner says that it's not a question of whether Diaz uses marijuana; it's a question of how much.
One commissioner finally points out that a lifetime ban for marijuana is harsh considering that fighters who have tested positive for steroids received more lenient suspensions. Ya think? In light of his dissent, the NSAC agrees on a five-year ban, but only because it amounts to a lifetime ban due to Diaz's age, again prejudicial. The arbitrary punishment is contrary to NSAC punishment guidelines.
Several UFC fighters are now boycotting fighting in the state to support Diaz. The ruling brings up important issues. First, is it even fair to test an athlete for marijuana when the THC metabolite can stay in a habitual user's system for days or weeks after use? Under WADA guidelines, marijuana is only prohibited "in competition." When someone tests positive, you can't tell with certainty whether he or she permissibly used the drug days before or used it the day of the competition.
Second, is there sufficient remedy for a prejudicial hearing? The current remedy is judicial review. A court can set the ruling aside, but usually sends it back to the same panel for a rehearing. Unjust.
Finally, since Nevada is the hub of UFC events, most states uphold the NSAC's rulings. One state should not monopolize a sport. If there is going to be uniform regulation, it should be at the federal level. Otherwise, one commission can end someone like Diaz's career. The NSAC recently had one of its rulings set aside on review. If it happens again, the Governor should overhaul this incompetent commission.
Whether Diaz used marijuana or not the night of the fight, the man is entitled to a fair hearing free from snickering and prejudicial questioning. He should have the opportunity to exercise his constitutional rights without being punished for it. Even if the panel felt one positive test was more convincing than two negative tests, Diaz's punishment should be reasonable. Given all this, Diaz has an excellent shot at an appeal.