AppId is over the quota
A lawyer representing Nick Diaz said the Nevada Attorney General's office made a "very offensive" and "ridiculous" statement when Diaz was accused of lying on a pre-fight medical questionnaire prior to his fight with Carlos Condit at UFC 143. Las Vegas-based lawyer Ross Goodman contends that Diaz's medical-marijuana card doesn't constitute a prescription.
So, he said, the fighter wasn't lying when he checked "no" on the part of the questionnaire asking whether he had taken or received any prescribed medications two weeks prior to his fight.
"The fact that they're falling back now on this is significant because you would think they would respond to the stuff that we argued in the response, which I think is basically irrefutable," Goodman told MMAjunkie.com (www.mmajunkie.com).
Goodman on March 7 responded to a complaint for disciplinary action against Diaz that was issued Feb. 8 when a post-fight drug test revealed the presence of marijuana metabolites. Diaz (27-8 MMA, 7-5 UFC) lost a unanimous decision to Condit (28-5 MMA, 5-1 UFC) in the headliner of UFC 143, which took place Feb. 4 at Mandalay Bay Events Center in Las Vegas. He subsequently said he he was retiring from competition after the pay-per-view event.
For now, Diaz is temporarily suspended pending a hearing scheduled for next month in Las Vegas, where he'll appear to face a possible yearlong suspension and fines. He also tested positive for marijuana following a 2007 win over Takanori Gomi at PRIDE 33. Diaz was suspended for six months for that offense, and the result of the bout was changed to a no-contest.
Rule 467.850 of the NSAC's administrative code bars the use of illicit substances such as performance-enhancing drugs and drugs of abuse, including marijuana. The commission also recognizes a list of substances prohibited in and out of competition by the World Anti-Doping Agency, or WADA.
Goodman's challenge stated that Diaz didn't violate the rules because he tested positive for an inactive metabolite of marijuana that isn't prohibited by the NSAC or by WADA. (On the WADA list, marijuana is not prohibited during out-of-competition periods.) Therefore, there was no basis to suspend and/or fine him, he said.
On Wednesday, Jennifer M. Lopez, the public-information officer for the Nevada Attorney General's office, wrote via email that "not only did Nick Diaz violate the law by testing positive for marijuana metabolites, but he also lied to the commission on his pre-fight questionnaire when he swore that he had not used any prescribed medications in (the) two weeks before the fight."
Goodman, however, said Diaz's omission isn't admissible because he didn't fill out the paperwork under penalty of perjury.
"In order for you to have a false official statement, it has to be sworn to," Goodman said. "It has to be under oath. If you found something contradictory in an affidavit that is sworn to under penalties of perjury, then that's where you really have a claim of false official statement. Here, you have none of that. You have a one-page, pre-printed questionnaire that was simply signed. There was no witness to attest to it, it wasn't done under penalty of perjury, (and) it wasn't sworn to.
"The second issue, which is really the main issue, is that he was truthful in responding to that question. He didn't take prescription medications in the last two weeks (prior to the fight)."
A key point of contention, he said, is the attorney general's implication that Diaz has a prescription for medical marijuana.
"The way that you become a medical marijuana patient is ... that you have a doctor," Goodman said. "A doctor doesn't prescribe to you marijuana. A doctor recommends that that would be an approved use for whatever diagnosis somebody has. In [Diaz's] case, [attention deficit hyperactivity disorder]. So nowhere is there an actual prescription for marijuana. It would be illegal for any doctor to prescribe marijuana."
Yet in his challenge to the NSAC, Goodman cites a statute originally intended to address driving that defines a prohibited substance as any for which a person doesn't have a "valid prescription." And in previous interviews, Diaz's manager, Cesar Gracie, has said Diaz carries a prescription for medical pot.
The NSAC oversees two tests on two separate samples when it conducts a pre- or post-fight test for illicit drugs such as marijuana. The initial test confirms the presence of all marijuana metabolites, which are prohibited in-competition, and a second, or "confirming" test, that "specifically identifies and quantifies the carboxylic acid metabolite of THC (Delta-9-Tetrahydrocannabinol)," according to Dr. Barry Sample, director of science and technology for Quest Diagnostics, which conducts drugs-of-abuse and performance-enhancer tests for the commission.
The levels of all marijuana metabolties in Diaz's system were above an acceptable limit of 50 nanograms on his first test, according to NSAC Executive Director Keith Kizer, and 10 nanograms above an acceptable limit of 15 nanograms of the carboxylic acid metabolite on the second test. The second test is designed to confirm the use of marijuana, which can be detectable in a person's urine more than 30 days after its use.
Goodman, however, believes it's unlawful for the NSAC to punish Diaz for a substance that isn't prohibited out-of-competition by WADA. He said Diaz stopped using marijuana eight days prior to the UFC 143 and therefore wasn't abusing the drug in-competition. He said a therapeutic-use exemption does not apply to Diaz because he doesn't need the drug to fight.
"We're just not here for the hell of it, right?" he asked. "We're just not ... playing semantics; it's marijuana vs. marijuana metabolites, in-competition, out-of-competition. There has to be reasons for this. The reason is because you don't want a professional athlete to create a safety issue for himself, and the only way that could happen, arguably, is if he's under the influence of marijuana."
Kizer said that safety is precisely the reason commissions ask fighters about prescription or over-the-counter drug use prior to a fight – to avoid any complications resulting from possible post-fight treatment.
Goodman would dispute the idea that Diaz's marijuana use could potentially cause problems – to say nothing of its effect on his performance during the fight.
"Well, we know that he stopped legally using marijuana eight days before the fight," he said. "We know from all medical and scientific journals out there that's not refuted that the psychoactive effects of the active ingredient of THC is gone within two hours or six hours. So nobody can sit here and say there was a safety issue eight, nine days later in competition, nor would it make sense that somebody that trains the way that Nick does would want to somehow impede their performance by being under the influence of marijuana. We're not even talking about that.
"So what are we talking about? I don't think the Nevada State Athletic Commission knows how to address that issue now because we brought the actual rules to light. So now I think that they're first reaction was, 'Well, shoot, we do have some potential issues,' so what else can we say was wrong here? Oh, there was a pre-fight medical questionnaire that's asking for prescription medication? That was untruthful.'
"Maybe instead of attacking him and blaming him for something that's completely ridiculous, they should have a special category (on the questionnaire) that says, 'Are you a medical-marijuana patient?'"
(Pictured: Nick Diaz)
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