Why The NSAC’s Hands Should Be Tied in Disciplining Wanderlei Silva

Posted: June 13, 2014 in Uncategorized

Update February 17, 2016 as reported by Fox Sports, the NSAC has revisited their punishment of Silva as directed by the Nevada courts and have substituted Silva’s lifetime ban with a 3 year suspension.  They further overturned the $70,000 fine.

Update May 18, 2015 – Here is a link to the full Court judgement 

Update May 18, 2015 – ESPN’s Brett Okamoto reports that the lifetime ban has been overturned.  Here are his tweets:

Bret Okamoto Tweets re Silva

Update April 22, 2014 – the Court’s decision is expected to be handed down on May 11, 2015.  The parties full court submission can be found here.

Update March 6, 2015 – the Commission has now filed their answering brief arguing that they have the right to test unarmed combatants out of competition, even if they are not presently licensed, if a bout involving that athlete is being promoted in their jurisdiction and further discipline such an athlete.  It can be found here.

Update – January 20, 2015 – Silva has now filed his Memorandum of Points and Authorities setting out arguments in support of his claim for judicial review.  The full document can be found here.

Update September 23, 2014 – the NSAC has dismissed Silva’s motion challenging their jurisdiction and in doing so failed to give any reasons whatsoever in clarifying why they feel they have jurisdiction.  Silva’s lawyer plans on appealing and this matter now appears headed for judicial review.

Silva Appeal Tweet

__________________________________

MMA Junkie reports that the Nevada State Athletic Commission has called Wanderlei Silva to appear at the NSAC’s June 17 meeting “to address his alleged refusal to take a random drug test.”.

The report goes on to note that the NSAC “will review the case and decide whether any administrative actions will be taken.”.  The reality, however, is that the NSAC’s options for administrative action are limited in these circumstances.

At the time of the refusal, Silva was not licensed with the NSAC.  This limits the NSAC’s options drastically.  In fact, if Silva does not apply for a licence, they have no jurisdiction to take any disciplinary action.

The NSAC’s drug testing powers arise from NAC 467.850(5) which reads as follows “An unarmed combatant shall submit to a urinalysis or chemical test if the Commission or a representative of the Commission directs him or her to do so.”  Although the definition of  ‘unarmed combatant‘ does not expressly require the fighter to be currently licensed, when it comes to administrative penalties being a licencee is a requirement.

Specifically, NAC 467.850(6), which deals with penalties for those who violate Nevada’s anti-doping rules, provides that “A licensee who violates any provision of this section is subject to disciplinary action by the Commission.”

Since Silva was not a “licensee” at the time of refusal the Commission does not have jurisdiction to trigger disciplinary action.  The only power the Commission seems to have is spelled out in NAC 467.082 which states that “The Commission may deny the application of an applicant if it finds that the applicant has performed any act which would, if performed by a licensee, subject the licensee to discipline pursuant to NAC 467.885.”  and with NAC 467.087 requiring that “Any applicant who has been denied a license by the Commission may not file a similar application until 1 year after denial by the Commission, unless the Commission specifies otherwise at the time of denial.”

The bottom line is that unless Silva applies for a Nevada licence there seems to be little the Commission can do.  If he does apply they can deny his application and keep him from reapplying for one year.

____________________________________

Update – June 18, 2014 – Silva has now appeared at the NSAC hearing admitting to taking a prohibited substance and avoiding testing, below is the video

Advertisements
Comments
  1. […] this year I addressed why the Nevada State Athletic Commission is on thin ice to discipline Wanderlei Silva for ducking a…  In short it comes down to the fact that he presently is not licensed nor applying for a licence […]

  2. […] Nevada State Athletic Commission has overstepped their bounds by imposing or threatening to impose penalties against Wanderlei Silva for ducking a drug test and Chael Sonnen for competing in a grappling contest while under a suspension from […]

  3. […] this year I discussed why the NSAC was legally on thin ice.  Ross Goodman, Silva’s lawyer, has now filed a memorandum of points and authorities in […]

  4. […] the ongoing legal saga involving Wanderlei Silva ducking an out of competition drug test by the Nevada S…the Commission has now filed their answering brief arguing that they have the right to test unarmed […]

  5. […] will resolve the ongoing legal challenge between Wandelei Silva and the NSAC with respect to the boundaries of their out of competition drug testing powers.  MMAJunkie’s John Morgan attended this weeks judicial review and recorded the entirety of […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s