Archive for the ‘Nevada Combat Sports Law’ Category

Update December 8, 2016 – today it is reported that Jones and the NAC reached a deal where he will receive a one year suspension which coincides with the punishment he received from USADA.

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It is reported that Jon Jones, who was pulled from UFC 200 days before his bout with Daniel Cormier due to a failed out of competition drug test, may in fact pull off the ‘contaminated product’ defense.

According to Jones’ lawyer

We’ve been able to establish the source of the prohibited substances. It came from a product that Jon took that was not labelled with either of these substances. We had it tested, the product was contaminated with both of them. I know USADA also independently had the product tested; their testing confirms what we found. We then sent essentially the same pills that we had had tested to be tested by USADA’s lab, which also found the same thing. So pretty much every time it’s been tested, it’s shown that the product is contaminated with both clomiphene and Letrozole, the two substances (Jones tested positive for).

Even unintentional ingestion of a banned substance is a violation of USADA’s and the Nevada Athletic Commission’s ‘strict liability‘ anti-doping standards, however, as has been demonstrated by Tim Means and Yoel Romero, reduced sanctions can follow true cases of contaminated products.

Jones raised several affirmative defenses in his answer to the NAC’s Complaint for Disciplinary Action.  He specifically argues that the NAC should “take into account” any punishment that USADA imposes and has arranged his USADA hearing to take place before his NAC hearing.

jon-jones-defence-screenshot

USADA is in the suspension business while the NAC is in both the suspension and financial penalty business.  Assuming Jones succeeds in obtaining leniency from USADA his legal team hopes that the NAC follows suit.  Only time will tell if they will but there is a legislative reason why the NAC should indeed respect USADA’s precedent.

In the most basic of legal terms the NAC and USADA do have ‘concurrent jurisdiction’ but for very different reasons.  The NAC have jurisdiction due to legislation.  USADA have jurisdiction due to private contract.  All things being equal both are free to impose their own sanctions irrespective of the other.  Recent legislative developments, however, may add fuel to fire Jones’ argument.

Last month a new regulatory framework came into force in Nevada overhauling some of the NAC’s anti-doping provisions.  One of the changes expressly allows reduced suspensions including the potential for no suspension where ‘one or more mitigating circumstances’ exist including the tainted supplement defense.

Additionally, the new regulations allow the NAC to require a promoter to “submit to the Commission a copy of any contract and each amendment to a contract entered into by the promoter and an organization that administers a drug testing program on behalf of the promoter” and allows the NAC to reject a contract that “does not contain sufficient terms to ensure protection of this State, the Commission or unarmed combat“.

I have checked with the NAC and they have not, as of yet, obtained a copy of the USADA contract with the NAC advising as follows:

nac-response-re-usada-contract

Despite not having the USADA contract on file, an exception exists where “A promoter is not required to submit to the Commission a copy of a contract…if the Commission, in its discretion, authorizes the promoter to arrange for a representative of the Commission to review the information and report to the Commission whether the contract or amendment complies with the provisions of subsection 1.

Assuming the NAC has ratified the USADA contract and are content that it “ensures protection of the State, the Commission (and) unarmed combat” then it only makes sense to honor findings and punishments imposed by USADA unless there are compelling reasons not to.  Only time will tell if the NAC accepts this reality of concurrent jurisdiction.

Earlier this year it was revealed that Brock Lesnar failed in and out of competition tests surrounding his bout with Mark Hunt at UFC 200 with “Clomiphene and hydroxyclomiphene” being detected.

Lesnar is undergoing results management with the United States Anti Doping Agency who oversee the UFC’s in house anti-doping program and further facing regulatory consequences with the Nevada State Athletic Commission.

There is speculation that Lesnar may try the ‘tainted supplement‘ defence blaming the positive results on products which failed to include them on their label.  While this is not an outright defense it is a mitigating factor which can result in drastically reduced punishments for athletes who successfully pull it off.

While USADA punishment is one thing, the NAC regulatory process creates its own challenges and Lesnar’s biggest barrier, even if he can prove a contaminated product, may be an alleged misrepresentation to the NAC.

I have obtained a copy of the State’s Complaint against Lesnar where not only doping allegations are made but also allegations of providing “false or misleading” information to the commission, a stand alone offence.

lesnar-ufc-202-complaint-screenshot

Lesnar’s pre-fight medical questionnaire indeed denies ingesting any “medication, drug, cream, inhalant, intravenous infusions, or injection, whether prescription or over the counter” in the month prior to UFC 200.

Lesnar does admit to ingesting multivitamins, creatine and protein powder but nothing else.

In short, if Lesnar’s legal team can indeed identify a product which resulted in his unwitting ingestion of Clomiphene he will need to link it to “multivitamins, creatine and protein powder” or a drug or other product ingested more than 30 days prior to UFC 200 which was capable of leaving detectable traces beyond 30 days.  This is, to put it charitably, an uphill legal battle.

lesnar-screenshot-ufc-202-questionairre

nsac-doping-ug-image

(Image courtesy of MixedMartialArts.com’s Kirik Jenness)

Although little media attention was received, on September 9, 2016 Nevada overhauled their combat sports regulations with many significant changes most notably to the anti doping scheme.

The full regulations can be found here.

The key changes to the anti doping rules are as follows which all Nevada combat sports stakeholders should be familiar with:

  • The NAC adopts, in addition to WADA’s prohibited substances, WADA’s prohibited methods thus eliminating a blood doping loophole which arguably existed in Nevada.
  • Specifically noting that anti-doping violations are strict liability offences and that “it is not necessary to establish that the unarmed combatant intentionally, knowingly or negligently used a prohibited substance or that the unarmed combatant is otherwise at fault for the presence of the prohibited substance
  • Confirming that a positive A sample where B sample testing is waived is sufficient to prove an anti doping violation
  • Confirming that a positive A and B sample is sufficient to prove an anti doping violation
  • Confirming that an anti-doping violation can occur even without a failed test if there is proof that an unarmed combatant “utilizes, applies, ingests or consumes by any means, or attempts to utilize, apply ingest, inject or consume by any means, a prohibited substance or prohibited method
  • Sets penalties for refusing or failing to submit to a test as a suspension from 12-24 months and fines of 20-40% of the fighter’s purse.
  • Confirming that intimidating test administrators or otherwise tampering or obstructing with the test collection process is a violation with suspensions of 12-24 months and fines of 20-40% of the fighter’s purse
  • Confirming that possessing out of competition substances at any time (or possessing substances banned in-competition while in competition) is an anti doping violation with suspensions ranging from 9-24 months and fines of 15-30% of a fighter’s purse
  • Confirming that it is a violation to sell, give, transport, deliver or distribute prohibited substances with suspensions ranging from 12 months to a lifetime ban and fines of 15-50% of a fighter’s purse
  • Allows for reduced penalties where an athlete “promptly admits to an anti-doping violation“.  If the admission is the only evidence against the fighter the suspension can be reduced by up to 50% and fines can be reduced to as little as 10% of the purse.
  • Similar leniency is built in where an admission is made in the face of other evidence.
  • Mandating a default suspension of 9-24 months for an anti doping violation with a fine from 15-30 % of a fighters purse.
  • Doubling the period of suspension for “a second anti doping violation” with fines of up to 40% of the fighter’s purse
  • Increased suspensions for “a third or subsequent anti-doping violation” from 18 months up to a lifetime ban and fines of 40-60% of a fighter’s purse
  • Doubling anti-doping suspensions if there are “aggravating circumstances” defined as “when the conditions, events or facts accompanying an anti-doping violation increase the culpability of the person who committed the anti-doping violation” with an unexhaustive list of examples provided.
  • Allowing reduced suspensions including the potential for no suspension where ‘one or more mitigating circumstances’ exist such as the tainted supplement defense or providing assistance in establishing anti doping violations against others
  • Clarifying the Therapeutic Use Exemption process including confirming that TUE’s can not be granted retroactively after a bout took place.
  • Confirming that a licence can be further suspended or revoked where an individual fails to pay a fine imposed in a timely fashion or otherwise comply with the terms of a payment plan
  • Requiring promoter hired drug testing organizations to be licenced with the commission and further requiring promoter/drug testing organization contracts to be filed with the commission and compelling such organizations to send all test results to the commission.

nsac-mcgregor-screenshot

In 2014 the NSAC levied steep fines for a press conference brawl between Daniel Cormier and Jon Jones.  Today the NSAC kept in line with this precedent when dealing with Conor McGregor for throwing bottles into the crowd at a UFC 202 press conference.

In short the NSAC hit McGregor with a $150,000 fine, 50 hours of community service along with compelling McGregor to appear in an anti-bullying Public Service Announcement which the NSAC will be able to use.  The legal justification for the imposition of sanctions was that throwing objects into a crowd created risk of public injury and this behavior violates NAC 467.886 which prohibits “any activity that will bring disrepute to unarmed combat“.

Perhaps to the surprise of McGregor’s legal team, the commission went well above the $25,000 fine and 25 hours of community service that the Nevada Attorney General was seeking. After hearing this position McGregor’s legal team essentially abandoned all defenses and admitted guilt assuming the prosecution’s recommendation would be a worst case scenario.  No such luck.

This case, coupled with the previous Cormier and Jones affair, show that the NSAC is comfortable taking a percentage of a show purse as punishment for press conference violence regardless of how high the purse is.  Jones and Cormier were fined 10% of their respective purses and the McGregor fine represents 5% of his purse.  The lesser percentage was justified in face of McGregor abandoning defenses at the hearing coupled with the time he will have to sacrifice to meet the 50 hour community service requirement.

 

In 2015 the Nevada State Athletic Commission revealed that Jon Jones tested positive for cocaine metabolites in a random out of competition drug test taken 30 days prior to a schedeld title defense at UFC 182.

At the time the NSAC adopted WADA standards which do not ban cocaine out of competition leaving the regulator with no sanctioning options for the finding and with a potential legal issue on their hands for exceeding their jurisdiction by testing for a non-prohibited substance.

The NSAC appears to be responding to this by overhauling their regulations expressly making cocain, along with other stimulants, banned at all times, not just in competition. (shout out to Twitter’s @dimspace for the find).

Specifically, proposed NSAC NAC-467.850(1)(f) reads as follows:

NSAC Stimulant Reg

Section s-6 of the 2016 WADA Prohibited List lists not only cocaine but all of the following stimulants which, if this regulation passes, will be banned year round for all licenced fighters in Nevada:

WADA Stimulant List

As @dimspace notes, these changes are problematic as they create friction among competing anti-doping schemes with little explanation for the rift with WADA.  Whatever reason for these proposed changes, all fighters licenced to compete in Nevada must do their due diligence and ensure they can comply with the NSAC’s contemplated new standards.

dimspace tweets

 

 

This summer the Nevada State Athletic Commission is looking to overhaul its regulatory scheme with significant new combat sports regulations.  Among these include reforms allowing the NSAC to oversee promoter anti-doping contracts along with formal adoption of stricter (and consistent) anti doping penalties.

Another noteworthy change will close the door on the blood-doping and IV loophole that arguably exists in Nevada.

Nevada’s current legislation is not clear on whether IV use is prohibited and arguably it is not.  This loophole is wide enough to potentially allow blood doping as Nevada’s regulations don’t currently expressly adopt WADA prohibited methods.  I have previously brought this loophole to the NSAC’s attention and, whether in response to my inquiries or of their own accord, the Nevada’s new regulations will clearly outlaw IV use and blood doping by expressly adopting WADA prohibited methods.

The proposed rule changes expressly refer to prohibited ‘methods‘ in several sections with the overhauled section 467.850(f) specifically reading as follows

With the exception of stimulants listed in section S-5 and S- 6 of the World Anti-Doping Agency’s Prohibited List, which are to be prohibited at all times, any prohibited substance or method drug identified on the most current edition of the Prohibited List published by the World Anti-Doping Agency (“WADA”), which is hereby adopted by reference. The most current edition of the Prohibited List may be obtained, free of charge, at the Internet address http://www.wada-ama.org. WADA’s definitions, prohibited lists, prohibited methodologies and tolerance levels will be used in interpreting violations of NAC 467.850 et.seq.

 

screenshot new nevada pre fight questionnaire

The pre-fight medical questionnaire is an important document which, when filled out incorrectly, can lead to significant legal consequences for fighters.  You need look no further than to Nick Diaz’s legal woes  and the lawsuits against Manny Pacquiao for examples of this or to the recent Supreme Court of Canada decision finding that undisclosed doping is criminal fraud against gamblers akin to a company misleading investors in a prospectus.

Yesterday the Nevada State Athletic Commission considered updating their pre-fight medical questionnaire.  The Commission has provided me with a copy of the new form and advise that this questionnaire “was adopted at the January 12th Commission Meeting.”.

Here is a copy of the updated form for combative athletes competing in Nevada –

New Nevada Pre fight Questionnaire

Silva NAC rehearing screenshot

Lost in yesterday’s news of Nick Diaz’s drastically reduced suspension following his Nevada Athletic Commission marijuana saga, is Wanderlei Silva’s prolonged and ongoing battle with the Commission reaching back to a ducked out of competition drug test in May of 2014.

In short Silva ran and was issued a lifetime ban and a $70,000 fine by the Commission.  In May, 2015, Nevada District Court Judge Kerry Earley overturned the ban and fine finding that the punishment was “arbitrary, capricious and not supported by substantial evidence”.  

The Court remanded the matter for re-hearing and ordered that the Commission issue “appropriate” discipline, a task the Commission has failed to follow through with.

Although scheduled to be re-heard (for a third time) yesterday there are now further delays and Silva won’t know his fate until at least February.  It also appears that the Commission and Silva reached a consent decree (ie a settlement agreement) and the Commission then got cold feet at the last minute causing further delay over strenuous objections by Silva’s lawyer Ross Goodman.  The following exchange took place at January 12, 2016 hearing –

Goodman – Good morning, I represent Wanderlei Silva as this Commission knows.  As the commission recalls this was ordered for rehearing back in October.  The Commission then continued it to a November date setting for another rehearing and proposed approval on a proposed consent order.

The Commission then moved it, at that time, to December. The commission then took it off calendar and moved it to January.  By continuing to move this hearing for Wanderlei it is violating his due process rights.  He has a due process right to have this re-hearing heard, to bring finality to it so that he can take whatever legal recourse he wants.  But it appears, for no reason, that the Commission is moving this which should have been re-heard some 4 months ago.  So I’d like to ask the Commission what the legal basis is to move this yet a 3rd time from the date of a re-hearing?

Chairman Anthony Marnell, Jr – I’ll be perfectly straight up with you.  Executive Director Bennett and myself are not comfortable with what’s been negotiated.  So all I can tell you at this point, I understand what you’re saying, you will have a hearing in February, you can count on that. And it will be a re-hearing as mandated by the court.

Goodman –  I apprecite those comments but it is set for a re-hearing as well today so what is the legal basis for not going forward with the re-hearing today?

Chairman Anthony Marnell, Jr – We’ve had a number of changes within the athletic commission, specifically prosecutor and counsel and we’re trying to make sure that everybody that is new in these positions is up to speed.  So we can present the case, so they can re-present the case.

After a brief exchange with Commissioner Lundvall about whether Silva will be present at the re-hearing Goodman explained as follows –

Goodman ….the commission needs to re-hear this.  Its as simple as that. There needs to be finality.  You just can’t hold this hearing hostage and prevent Wanderlei from getting finality and bringing this up to the Supreme Court.  The consent decree is rejected. IT has not been accepted so we do want to go forward with the re-hearing.  You have an able prosecutor here. Its a straight forward re-hearing.   We see no legal basis why we cant go forward with the hearing.

If the Commissioner is saying because Mr. Silva is not here then I jsut want to make that clear for the record that Mr. Silva is not going to appear, it is his right not to appear he can do it through counsel.

NSAC Diaz Silva Rehearing screenshot

Further Update January 12, 2016 – Diaz and the NAC reached a settlement agreement that was unanimously approved at the hearing.  His suspension was reduced from 5 years to 18 months.  His fine was reduced from $166,462 to $100,000.  Diaz was ordered to provide the NAC three clean urine test results before is next contest in Nevada. If Nevada is not to be the venue of his next bout then this last requirement need not be complied with.

Here is a full copy of the Diaz/NAC settlement agreement  (h/t Steve Marrocco) – Nick Diaz NAC Settlement.  The key points are as follows

– Suspension reduced from 5 years to 18 months

– Fine reduced from $166K to $100K

– Diaz has to give the NAC 3 clean urine tests before they will relicence him.  These will test for substances banned out of competition and in competition (ie Marijuana) 

– if Diaz fights in a jurisditction outside of Nevada then he need not comply with the urine test requirement 

– Each side bears their own legal fees

– Fine to be paid by December 2016 

– If Diaz breaches the agreement it reverts to the original punishment

– Diaz gives up his right to sue / seek judicial review of the NAC’s prior actions

Update January 12, 2016 – The Nevada Athletic Commission has moved the Wanderlei Silva re-hearing, yet again, now to February.  This was done over strong objections by Silva’s counsel that the delays are violating his due process rights.  Commissioner Marnell explained that the further delay is due to him not being comfortable to an apparently agreed plea bargain.

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Top agenda items for this week’s Nevada Athletic Commission meeting are Wanderlei Silva and Nick Diaz.

After having his lifetime ban for running from a Nevada State Athletic Commission drug tester overturned as ‘arbitrary and capricious’ Wanderlei Silva’s rehearing is at the top if the NAC’s agenda this week.

The hearing will not focus on whether the NAC had authority to request an out of competition test of Silva (who was unlicensed 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 for punishments that can be expected for test avoidance.

Of note the NAC’s suggested ‘tough on doping’ penalties (which were not in force at the time of Silva’s test avoidance) call for a 48 month ban for first time test avoidance infraction.

Diaz, on the other hand, has apparently struck a deal with the NAC and will face a plea bargain of sorts where his 5 year ban will be reduced and Diaz, in exchange, will presumably accept the new penalty in exchange for giving up his rights of judicial review where the current 5 year ban would likely receive similar judicial comments as Silva’s lifetime ban.

I will update this post once the NAC announce their new penalties for these combatants.

Today the Nevada State Athletic Commission Suspended Rousimar Palhares 2 years in addition to a $40,000 fine plus legal costs for not promptly releasing a submission hold upon referee direction.

Tweet re Mazzagatti testimony

The infraction occurred at World Series of Fighting 22 where then Welterweight Champion Palhares retained his title via kimura submission.  He was subsequently stripped of his title by the promoter and temporarily suspended by the NSAC pending today’s hearing.

This is not a first time occurrence for Palhares and his reputation preceded him with the NSAC being specifically concerned that this not occur.  This history likely influenced the level of punishment imposed.

Tweet re Bennett

Tweet re Palhares

Below is video of the infraction.

(Below GIF’s Courtesy of ZombieProphet)