The Unclear Scope of the NSAC’s Out of Competition Drug Testing Powers

Posted: May 19, 2015 in Nevada Combat Sports Law
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Update May 20, 2015 – Silva will be appealing Judge Earley’s ruling to the Nevada Supreme Court which is fortunate for the sake of obtaining reasons which squarely address the bounds of the NSAC’s jurisdiction.  MMAFighting reports as follows: “We are very confident in our position that the NSAC [sic] cannot discipline a person not licensed before them,” Silva’s attorney, Ross Goodman, stated.  While we are pleased that the Judge found the NSAC [sic] violated Mr. Silva’s rights by imposing an arbitrary sanction of a life time ban, the Court unfortunately did not focus or even address the specific statutory provisions expressly providing that licensure is a pre-requisite before the NSAC [sic] has jurisdiction to discipline someone.”

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This week Nevada District Court Judge Kerry Earley ruled that the Nevada State Athletic Commission does enjoy powers to conduct out of competition drug tests for individuals not presently licensed in the jurisdiction  The unanswered question remains, just how broad are their drug testing powers?

For those unfamiliar with the case, Wanderlei Silva was scheduled to fight Chael Sonnen in Las Vegas at UFC 175.  Silva did not have a current licence with the NSAC nor had he applied for one when the NSAC requested an out of competition drug test.  Silva ran from the test and was subsequently disciplined by the NSAC.  The Court found the NSAC handed out an “arbitrary and capricious” punishment in doling out a lifetime ban and a $70,000 fine and ordered a re-hearing.

While headlines largely focused on Silva’s lifetime ban being set aside, the more important aspect of the ruling are the broad powers granted to the NSAC to conduct out of competition drug testing.  Just how broad are these powers?  The full scope is unclear but here is the Court’s breakdown-

The NSAC has sole jurisdiction over unarmed combat in the State of Nevada by virtue of NRS 467.070(1) which reads as follows:

      1.  The Commission has and is vested with the sole direction, management, control and jurisdiction over all contests or exhibitions of unarmed combat to be conducted, held or given within the State of Nevada, and no contest or exhibition may be conducted, held or given within this state except in accordance with the provisions of this chapter.

The Court interpreted this section as applying to all contestants, apparently also including those not presently licensed or actively applying for a licence.  The reasons fell short of any analysis of why this is the case.

The Court then pointed to NAC 467.850(5) which gives the NSAC drug testing powers and 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.

The Court then relied on NRS 467.110(e) to note that the NSAC can “otherwise discipline” a contestant that “Is guilty of an act or conduct that is detrimental to a contest or exhibition of unarmed combat, including, but not limited to, any foul or unsportsmanlike conduct in connection with a contest or exhibition of unarmed combat“.

Lastly, the Court noted that these powers include the ability to refuse to issue a licence, the Court highlighted that these powers, under NRS 467.158(2)(a) also include the ability to discipline against a ‘person‘ relating to “the preparation for a contest or an exhibition of unarmed combat

The outer limits of the NSAC’s authority for out of competition drug testing have, unfortunately, not been clearly defined from Judge Earley’s reasons.  As previously discussed, drafting legislation clearly outlining the scope of an athletic commission’s powers is not a difficult task and one legislators should consider when it comes to the important issue of anti-doping measures in combat sports.  In the meantime, unless there is a further appeal of this case, in Nevada the NSAC enjoys out of competition drug testing powers at least by the time a fight is promoted in their jurisdiction (in this case Silva appeared at a press conference publicizing the bout).  Whether the powers extend beyond this time, and if so how far beyond this period, remains unknown.

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Comments
  1. Jason says:

    I hope this gets appealed. How can the judge see that the main issue here was the licensing requirement and not discuss it a single time in her ruling. Its like she just cut and pasted Eccles response to the petition.

    • EMagraken says:

      For the sake of clarity alone an appeal is desirable. The waters are muddier than ever with respect to the scope of the NSAC’s out of competition testing powers.

  2. […] to appear in person before the NAC for a rehearing of the case at a date TBD, but according to Combat Sports Law, Early’s ruling granted NSAC the power “to conduct out of competition drug tests for […]

  3. […] at the time) rather it will focus solely on what a fair punishment is for such an infraction.  A further appeal is apparently underway about whether the NSAC enjoyed jurisdiction to ask for the test in the first place, but on the assumption they did, today the NSAC will set the […]

  4. […] at the time) rather it will focus solely on what a fair punishment is for such an infraction.  A further appeal is apparently underway about whether the NSAC enjoyed jurisdiction to ask for the test in the first place, but on the assumption they did, the NAC will set the tone […]

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