In what is now his third positive marijuana finding in Nevada, Nick Diaz has reportedly hired a New York lawfirm with expertise in “drug and alcohol testing policies and procedures,” to minimize fallout. Diaz’s manager suggests there are “irregularities’ in Diaz’s results.“.
It is unclear what the suggested irregularities are and further it is unclear at this stage what legal strategy Diaz intends to employ. What is known, however, is what strategy has failed in the past.
If Diaz holds a medical marijuana licence, relying on this after the fact cannot work as a defense. If an athlete wants to use a prescribed drug that is banned in competition they would need to satisfy the TUE exemption test and would need to receive one ahead of time from the commission. Prescription use cannot be used as a defence after the fact.
Another likely unsuccessful avenue is arguing that the reading is based on out of competition use.
As the world learned from the Jon Jones saga, marijuana, like cocaine, is only banned in-competition in Nevada. There is speculation that Diaz may argue that his positive test can be accounted for by out of competition use of marijuana (ie – more than 12 hours before the bout.). While, as a matter of fact, this may be true this legal argument has fallen flat before.
The NSAC’s current threshold for marijuana metabolites is 150 ng/mL. In other words, any finding in an in-competition test that exceeds this threshold is deemed to be in-competition use. Both the NSAC, and the courts in Nevada, have been satisfied that a reading that fails this threshold is sufficient to prove in competition use and justify administrative penalties.
I will follow up on this story as more details come to light.