Support for UFC fighter Nick Diaz is skyrocketing after the Nevada State Athletic Commission banned him from fighting for the next five years. Due to Diaz's age, many say the ban amounts to a career death sentence. The ruling followed an intense three-hour long hearing before the state-appointed commission, in which Diaz refused to testify after testing positive for marijuana use for the third time. The positive result surfaced at UFC 183, a fight between Anderson Silva and Nick Diaz. On that night, two different companies tested Diaz three times for marijuana use. Two of his tests by a World Anti-Doping Agency-accredited lab came back negative, but the third from an entirely different drug testing facility came back positive. During his hearing, Diaz pled the fifth, which angered the NSAC and it dropped a harsh five-year ban on him. Now he will appeal and he has an incredible shot of getting a reduction. The evidence is unreliable and contradictory. The punishment is totally out of line with the NSAC's sentencing guidelines.
Here's how it works. The NSAC is a regulatory body that is considered an arm of the State of Nevada. It has jurisdiction to ban fighters for violations of its statutory code but it doesn't have limitless power. The NSAC is kept in check by the judiciary thanks to our checks and balances system. The Nevada District Court is supposed to grant judicial review of decisions by regulatory agencies to ensure they do not abuse their power. There are several grounds for overturning a state agency decision such as, if it violates a constitutional right, if it exceeds the authority of the agency or if it is arbitrary or capricious or characterized by an abuse of discretion. You may have noticed Diaz's attorney repeatedly calling the NSAC a "kangaroo court" that has issued an "arbitrary and capricious" ruling. Diaz's attorney clearly thinks he has the best chance of getting NSAC's ban set aside by a district judge on that ground and he does have a pretty good shot. Here's why: last May the NSAC issued guidelines outlining punishments for specific violations of the statutory drug policy. For example, a steroid user shall be banned for "three years for a first offense, four years for a second offense" and receive "a lifetime ban for a third offense." Now let's move on to cannabis use. The policy says, the ban shall be "eighteen months for a first offense, two years for a second offense and three years for a third offense." There is no way that the NSAC can adopt specific punishment guidelines and then not follow them. This was Diaz's third positive test so Diaz will likely have to be banned for no more than three years.
Now, Diaz's attorney will definitely try to get an even less harsh punishment and he has a good shot at that as well because the evidence is completely unreliable. The NSAC's guidelines say a fighter must submit to a urinalysis or drug test if requested by the NSAC. The rules don't say several tests just A test. There is no reason why Nick Diaz should've been tested three different times. It is customary to test once before the fight and once after. Furthermore, why was NSAC using two different companies? The NSAC then gave more evidentiary weight to the one test that came back positive from a non-WADA accredited facility than the two that came back negative from a WADA accredited facility. This is extremely prejudicial. To go into more detail here, the test before the match was negative. Subsequently two post-match tests were administered. The first came back positive but the second, less than two hours later came back negative. How in the world can this be taken seriously when the half-life of marijuana is several days? It takes days for the level of marijuana in a person's blood to cut down to half! Yet, less than two hours later, Diaz's levels were twelve times lower?
Fighter Wanderlei Silva recently appealed a lifetime ban by the NSAC for refusing to submit to a drug test. Silva's ruling was set aside based on a lack of substantial evidence to support it. It should be the same result here. Granted the facts are different but the evidence is unsubstantial in both. Furthermore, it's clear by listening to the hearing that the severity of the punishment was based not only on the positive drug test and the repeat offenses but also on Diaz's refusal to testify. The NSAC code does not provide punishment for pleading the fifth and it is against Diaz's constitutional rights to punish him for exercising his right to remain silent. The NSAC's statutory code merely says that if someone refuses to testify, then the commission may infer that the person's testimony would have been adverse to their interests. So be it. This should not change the punishment. Increasing the punishment because Diaz pled the fifth, amounts to an abuse of discretion and exceeds disciplinary authority.
The NSAC's punishments in other cases, where fighters have tested positive for PEDs, are all over the place. Other fighters who tested positive for steroids and cocaine received more lenient bans than Diaz. It's important to consider that many of these other fighters were not repeat offenders and tested positive during training camps and not fights. However, there still needs to be consistency and predictability. The NSAC must have realized that its arbitrary punishments were leading courts to set aside its rulings. Hence, to avoid such embarrassment, it came up with a specific sentencing guideline. It's mind-boggling why NSAC wouldn't apply that policy to Diaz.