Posts Tagged ‘marijuana’

Lost in the discussions of the Nevada State Athletic Commission’s draconian punishment of Nick Diaz and the far from ideal circumstances of his hearing is the fatal flaw in modern day athletic commission testing for marijuana.

Marijuana is, by WADA and by most athletic commission standards, only banned in competition (as opposed to steroids and other performance enhancing drugs which are banned at all times.).

The reason for this is simple.  Marijuana, alcohol and other so called ‘drugs of abuse’ are not performance enhancing.  In fact, WADA does not even ban alcohol in competition for most sports with the exception of those where harm is perceived to be possible such as air sports, motor sports and archery.  Intoxicating substances are only banned in competition in the combat sports world for the safety of the fighter consuming them.  No regulator will allow a fighting athlete to compete while impaired and little argument can be made against this objective.

To this end commissions largely rely on metabolite screening in urine tests which do nothing to determine if an athlete is impaired while competing.  These tests only show that marijuana was consumed some time in the past.  Various jurisdictions set artificial thresholds which, if exceeded, are deemed to be a violation of the in competition ban but these again do not measure sobriety

A far more sensible approach would be to rely on the integrity of pre bout medical screenings.  Physicians are present at regulated events.  It would take little time and effort for a once over to ensure no competitor is about to fight while showing signs of impairment.  If a fighter is not objectively impaired in any way and satisfies physicians present then the regulator’s legitimate safety concerns are meaningfully met.  Allowing a bout to take place, on the other hand, and finding traces of substances that could have been consumed days or weeks prior, misses this objective and is a practice which regulators should seriously consider re-evaluating.

Today I had the pleasure of sharing my thoughts on the NSAC’s 5 year suspension of Nick Diaz with Michael Martin, JD, Content Manager at DTLA’s Strong Sports Gym at Fightland.com and ViceSports.

For those visiting for the first time welcome!  You can click here to read my previous discussion on Diaz’s run ins with the NSAC for marijuana infractions.  You can find the full Fightland article here “A Sober Look At the Nick Diaz Saga”  which I reproduce below.

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A SOBER LOOK AT THE NICK DIAZ SAGA

FIGHTLAND BLOG

By Erik Magraken and Michael Martin

Yesterday the Nevada State Athletic Commission handed out one of their harshest penalties to date, a 5 year suspension, effectively ending the fighting career of Nick Diaz who tested positive for marijuana metabolites following his five round decision loss (since ruled a no contest due to Silva’s use of PED’s) at UFC 183. Immediately thereafter, a firestorm of criticism came roaring forth on Twitter as MMA journalists and fighters alike denounced the decision. A few examples-

The lazy headline would be that Diaz was banned for 5 years for marijuana but that would only be a half-truth. While a positive marijuana test was the catalyst for the legal proceedings, the harsh penalty was based on the fact that this was Diaz’s third such infraction in the State. This, coupled with Diaz pleading the Fifth Amendment for every question posed to him other than his name (even for benign matters such as whether he actually competed in UFC 183) clearly brought on the ire of the commission.

NSAC hearings are often criticized as a kangaroo court and this proceeding left much to be desired. From commissioners laughing when Diaz’s lawyers raised sensible objections to apparent double standards in how they treated Diaz’s witnesses compared to Nevada’s there is little shortage of perceived unfairness. Things became heated when Diaz’s lawyer reminded the panel that he had due process rights and was entitled to these and one can fairly ask whether these exchanges influenced the commission’s draconian sentence.

It is clear this hearing is likely headed to judicial review before Nevada’s Courts, especially given the fact that Diaz’s lawyers voiced their intention to apply for such a judicial review within minutes of the conclusion of the hearings. While Diaz may be able to point to certain procedural shortcomings his unfortunate reality is that the foundation of the NSAC’s decision should withstand scrutiny.

Diaz failed to mention any marijuana use in his pre-bout questionnaire. This is an admission he could have made without consequence as marijuana is not banned out of competition. No defence was offered for this failure and this alone can trigger consequences. Whatever procedural flaws an appellate body finds with the NSAC’s hearing this blemish for Diaz will remain and he will be punished.

The NSAC will likely learn a valuable lesson from judicial review as well. While they were condescending to Diaz for failing to learn his lesson from past failures the same accusation can be leveled at them. The Nevada judiciary recently slapped down the NSAC’s lifetime ban on Wanderlei Silva finding it was “arbitrary and capricious“.

Earlier this year the NSAC adopted sentencing guidelines to create consistency and predictability for doping offenders.  A third violation for marijuana is not the egregious penalty which calls for a lifetime ban as Nevada acknowledges with their guidelines setting out the following in black and white:

“3rd offense: 36 months, 6075% of purse”

The NSAC failed to give any reasons why they deviated from this recently adopted guideline. They were clearly irked with Diaz’s assertion of his 5th Amendment rights and appeared further irritated with his legal representative insisting the commission honor Diaz’s rights to procedural fairness. Being butt-hurt, however, is no legal ground for harsher punishment, and the Nevada judiciary may just remind the NSAC of this truth.

At the end of the day combat sports stakeholders should take a sober look at the reality of marijuana prohibition in combat sports. The in-competition cannabis ban only exists for protection of the fighter consuming the drug. Whatever your thoughts are on recreational marijuana use the reality is that no athlete should fight while impaired. That said, the testing of metabolites which can reveal marijuana use as remote as several weeks prior to testing seems to be an ineffective way to address this safety concern. Perhaps it would be better to rely on the integrity of a pre-bout medical exam to verify an athlete is not intoxicated, instead of the flawed marijuana metabolite screening system presently in use.

In any event, there are lessons to be learned from all involved here and hopefully the sport can progress to better deal with the benign threat that recreational marijuana use poses in combat sports.

Earlier this year I canvassed the possibility of obtaining Therapeutic Use Exemptions for medical marijuana users licensed to compete in combat sports.

The Association of Boxing Commissions Medical Committee has now addressed this issue, noting that “there are no good data at present to suggest that marijuana acts directly as a performance-enhancing drug” and confirmed that, provided that the underlying medical condition does not bar the combatant from being licensed, Athletic Commissions should be open to granting marijuana TUE’s.  Below is the Medical Committee’s consensus statement which ought to be referenced for any user seeking a TUE for medical marijuana:

ABC MEDICAL COMMITTEE CONSENSUS STATEMENT REGARDING
MARIJUANA
The ABC Medical Committee Consensus Statement regarding MEDICAL
MARIJUANA is as follows:
Based on current standards of care, the current diagnoses for which medical
marijuana could be indicated as treatment would most probably preclude a
combatant from participation in combat sports. Nevertheless, the committee
recommends that each request be reviewed on a case-by-case basis.
Should the athlete be deemed healthy enough for participation, an explanation from
the treating board certified physician, who must be in good standing in his/her
states) of licensure, should be submitted to the jurisdiction sanctioning the bout. It
is recommended that the letter include the following:
1. The length of time the contestant has been under the physician’s care
2. The complete work-up and diagnosis of the patient
3. A clear explanation as to why other treatment modalities deemed acceptable in
competition have not been suggested to the contestant.
4. Follow-up plan for the contestant including the means for objective assessment of
improvement with this treatment modality.

 

The use of marijuana by licensed MMA athletes is in the news again now that it is reported that the Nevada State Athletic Commission has raised the testing threshold of marijuana metabolites from 50 ng/mL to 150 ng/mL.   This move is in line with the World Anti Doping Agency’s current policies who adopted the 150ng/mL standard as of May 11, 2013.  This change in policy, while perhaps a reflection of the times, does nothing to take away the penalties for athletes who test positive.  It simply creates a higher test threshold for a failing result.

The marijuana prohibition creates a conflict for combatants who are prescribed medical marijuana.   Even if you discontinue your marijuana use days prior to the competition such that you are not under the influence of the drug while competing  you may still fail their drug test.

If you are a medicinal marijuana user and don’t want to run afoul of the law what is the safest course of action?  Apart from discontinuing the drug’s use, obtaining a Therapeutic Use Exemption is an avenue worth exploring.   This is an option which should be available depending on the laws of the specific licencing jurisdiction.

I reached out to BC’s Athletic Commissioner who confirms that TUE’s for marijuana “would be looked at when brought forward and dealt with on an individual basis”.   Manitoba’s Commissioner also confirmed this possibility advising that “If a fighter meets the standard for a Therapeutic Use Exemption then I have no issue with it.”  Below is the breakdown of the framework for why a marijuana TUE is possible.  I should note that nothing in this article suggests that combatants should be allowed to compete while intoxicated, rather I am simply exploring a remedy that balances the rights of combatants who are lawfully prescribed marijuana against the regulatory need to look after combatant safety.

BC adopts WADA standards with respect to doping with section 21(2) of the BC Regulation reading as follows:

For the purpose of this regulation, the World Anti-Doping Agency’s list of prohibited substances and methods applies as amended from time to time

WADA’s current list of prohibited substances include cannabinoids.  Interestingly these are only prohibited “in competition” as opposed to the broader “out of competition” standard which outright bans the use of certain substances at any time.

Complying with this distinction is difficult if a medical marijuana user discontinues use prior to competition because the industry standard urine test searches for the presence of marijuana metabolites which can be detected many days after discontinued use.  This is possible even with WADA’s and the NSAC’s higher standards.    As illustrated by the Nick Diaz Marijuana experience , a combatant’s word that they discontinued use prior to competition may not be sufficient to get around a failed test.

The solution with medical marijuana is the same as with all prohibited substances, applying for a Therapuetic Use Exemption.   The WADA criteria for gaining a TUE are as follows:

The four criteria that must be fulfilled before a TUE is granted are set forth
in the International Standard for TUEs:
1. “The Athlete would experience a significant impairment to health if
the Prohibited Substance or Prohibited Method were to be withheld in
the course of treating an acute or chronic medical condition.” (Article
4.1 a. of the International Standard for TUEs.)

2. “The Therapeutic Use of the Prohibited Substance or Prohibited
Method would produce no additional enhancement of performance
other than that which might be anticipated by a return to a state of
normal health following the treatment of a legitimate medical
condition. 

3. “There is no reasonable Therapeutic alternative to the Use of the
otherwise Prohibited Substance or Prohibited Method.” (Article 4.1
c of the International Standard for TUEs.)

4. “The necessity for the Use of the otherwise Prohibited Substance or
Prohibited Method cannot be a consequence, wholly or in part, of
prior non-Therapeutic Use of any Substance from the Prohibited
List.” (Article 4.1 d. of the International Standard for TUEs.)

With the correct medical evidentiary foundation there is no reason why TUE’s cannot be granted for medicinal marijuana.  Seeking a TUE is the safest course of action to give a medical marijuana using combatant clarity about whether continued use will run afoul of athletic commission requirements.  I reached out to Nevada State Athletic Commissioner Ketih Kizer who sensibly advises combatants “not to lie to the Commission about any relevant medication use.” and in the event a TUE is not granted  to take the practical step of “Quit smoking pot“.

Twitter image Pat Healy

OK, with BC’s new legislative framework in place regulating professional MMA and with Marc Ratner’s confirmation that BC is back on the UFC’s map its time to have some fun with hypotheticals.

What if Pat Healy’s failed marijuana drug test following UFC 159 occurred under BC’s new regime?

For those of you that don’t know the story, following his last fight in New Jersey Pat Healy tested positive for marijuana metabolites.  To his credit he immediately fell on his sword and owned up to his mistake.  The apology could not, however, stop the official result of the fight changing from a win to a no-contest.  This in turn stripped him of bonus money which made up the lion’s share of his purse.

So what if this happened in BC?  Would the result be different?  We need to make a few assumptions here but there is a strong likelihood that his victory would have remained intact and his pocketbook would be left untouched.

Once in force, the BC Scheme will be far more lenient than New Jersey’s or other jurisdictions when it comes to marijuana metabolites.  The World Anti-Doping Agency largely sets the standard when it comes to testing for banned substances.  Many jurisdictions look to WADA for guidance when drafting their regulations relating to banned substances and acceptable levels when testing.  When WADA changes their rules, athletic commissions generally need to change theirs if they want to keep pace.

British Columbia has gone further, however, and not only been guided by WADA’s standards but have expressly adopted them as they stand at any given time.  Specifically, section 21(2) of the BC Regulation reads as follows:

For the purpose of this regulation, the World Anti-Doping Agency’s list of prohibited substances and methods applies as amended from time to time

This means that when WADA changes their rules BC law is automatically updated to follow suit.  This is where the Pat Healy saga comes into play.  WADA has just announced that they are relaxing their rules when it comes to marijuana.  As of May 11, 2013 athletes are allowed to have 10 times more marijuana metabolites in their system before failing a drug test as compared to the former WADA standards increasing the standard from 15 ng/mL to 150 ng/mL.

This means that Pat Healy will have 10 times the slack under BC’s system over jurisdictions which implemented the former WADA standards.  Many US States such as Nevada have a standard of 50 ng/mL (although they are being lobbied to get in line with WADA’s new standard) meaning that BC’s standard is three times more generous than this standard.

Pat Healy’s exact readings have not been publicly reported but I have reached out to him to see if he is willing to share these.  Assuming he was not over 150 then he would not have run afoul of BC regulations, would have kept his win and his bonus money would still be intact.

This conclusion is bolstered by the fact that a fighter’s contract regarding controlled substances, while expressly prohibiting the use of marijuana, seems to defer to Athletic Commission testing arguably meaning that a reading below 150 by the BC Commission would not be a breach of this policy.  The relevant section of the UFC’s contract reads as follows:

UFC Fighter Cotract Controlled Substances Clause