Earlier this month Nevada and Kansas became the latest jurisdictions to either remove or stop testing for marijuana metabolites as banned substances in combat sports.
Today the Nevada State Athletic Commission provided me with a copy of an internal memorandum explaining their legal authority and reasoning behind this decision.
The memo, authorized by Nevada’s Senior Deputy Attorney of the State’s General Gaming Division first explained why the commission had the legal authority to remove cannabis if they so desired and went on to explain that in order to do so they had to conclude that “sufficient cause” existed to do so. In providing the NSAC with potential reasons for sufficient cause Senior Deputy Attorney General Edward L. Magaw noted as follows:
As stated above, the Legislature vested the Commission with plenary
authority over unarmed combat in the State of Nevada. While the
Commission has adopted the WADA list of prohibited substances, it possesses
independent authority (as discussed above) to determine which substances
should be prohibited under its anti-doping policy. It has not yielded or
delegated its authority to WADA (nor can it).
Since there is no legal impediment that prohibits the Commission from
removing cannabis from its list of prohibited substances, the Commission
only needs to make a finding that sufficient cause exists to institute a waiver.
The following factors may assist the Commission in determining
whether sufficient cause exists:
Nevada voters and the Nevada Legislature have approved the
medical and recreational possession and use of cannabis. There is
no longer a basis under Nevada criminal law to prohibit an
unarmed combatant for using or possessing cannabis.
WADA itself treats “out-of-competition” (i.e., the period up to
11:59 pm on the day prior to the competition) use of cannabis as a
“substance of abuse” if the athlete can prove its use was unrelated
to sport performance. See WADA Code 10.2.4. If the athlete can
prove this, WADA may recommend a lesser penalty than it would
for the use of other prohibited substances on its list. See id.
According to WADA, a substance, such as cannabis, is considered a
“substance of abuse” because it is frequently abused in society
outside the context of sport. See WADA Code 4.2.3. This implies
that WADA does not consider the effects of cannabis to be
WADA recognizes that cannabis use by unarmed combatants is
frequently for social reasons and the substance is not known as a
performance enhancer. See WADA Code 4.2.3. Yet, under the
Commission’s current anti-doping policy, the reason behind the use
of any prohibited substance, including cannabis, is irrelevant to the
determination as to whether a violation of its anti-doping policy has
occurred (i.e., strict liability). This could result in an unarmed
combatant, who otherwise legally used cannabis for purely
recreational purposes, facing the same penalties as someone who
used a prohibited substance specifically for performance
enhancement. This, in turn, could result in a significant penalty,
both financially and otherwise, that might be considered overly
harsh for the nature of the violation