By Zach Arnold | March 12, 2012
Last February, Vancouver Athletic Commissioner Jonathan Tweedale did something rather remarkable. The commissioner voiced an argument against a major athletic commissioner (Keith Kizer) over a drug test failure. For one AC to go after another AC publicly was unusual. What made things more unique is that the Commissioner came out in defense of Nick Diaz over his marijuana suspension in Nevada.
In a very detailed & lengthy response, the commissioner said: no disciplinary sanction warranted for Nick Diaz under a principled interpretation of NAC 467.850.
A lot of people read this article. Guess who’s channeling Jonathan’s line of thinking? Nick Diaz’s attorney in Nevada. Attorney Ross Goodman filed a response to the Nevada State Athletic Commission. Here’s the full text of that filing.
Ross C. Goodman
Nevada Bar No. 7722
GOODMAN LAW GROUP, P.C.
520 S. Fourth St., 2nd Floor
Las Vegas, Nevada 89101 Telephone: (702) 383-5088
Facsimile: (702) 385-5088
Attorneys for Respondent Nick Diaz
Respondent NICK DIAZ, by and through its attorney of record, ROSS C. GOODMAN, ESQ., of the Goodman Law Group, P.C., and submits this Response and Memorandum of Points and Authorities for consideration before the Nevada State Athletic Commission (“NSAC”).
MEMORANDUM OF POINTS AND AUTHORITIES
Nick Diaz (“Diaz”) is an authorized medical marijuana patient. As such, he did not test positive for marijuana (which is viewed as a prohibited substance if used without a medical marijuana license). Rather, Mr. Diaz tested for the presence of the inactive metabolite of marijuana known as THC-Carboxylic Acid (“Carboxytic Acid”). Under Nevada law and in Mr. Diaz’s home state of California, however, neither marijuana nor marijuana metabolite is considered a prohibited substance for users of medical marijuana.
In addition, the World Anti-Doping Agency (“WADA”) only prohibits marijuana “in-competition” but not “out-of-competition.” In preparation of the fight at issue, Mr. Diaz followed his general practice of stopping the use of medical marijuana eight (8) days before a fight. In WADA’s view, marijuana consumption “out-of-competition” and marijuana metabolites in general, such as the detection of Carboxylic Acid in Mr. Diaz’s post-fight urine test, do not violate the policy prohibiting substances that are considered performance enhancing or potentially dangerous.
As an authorized medical marijuana patient, Mr. Diaz’s consumption is legal in both Nevada and California. Notably, WADA’s limits on marijuana “in-competition”, and the exclusion of marijuana metabolite in general, have been adapted by the NSAC. Accordingly, the presence of a marijuana metabolite is not a prohibited substance under NAC 487.850 and should not, therefore, serve as a basis for any disciplinary action.
A. Marijuana Metabolite Is Not Defined As a Prohibited Substance For Legal Users of Medical Marijuana.
In 2001, Nevada legalized the use of medical marijuana. See NRS 453A.200. This exempted persons possessing valid registry identification cards from state prosecution for using medical marijuana. Id. In 2009, Nevada moved in line with other states with medical marijuana laws by excluding marijuana and marijuana metabolites as a “prohibited substance”:
484C.080. “Prohibited substance” defined
“Prohibited substance” means any of the following substances if the person who uses the substance has not been issued a valid prescription to use the substance and the substance is classified in schedule I or II pursuant to NRS 453.166 or 453.176 when it is used:
5. Marijuana or marijuana metabolite.
See NRS 484C.080 (emphasis added).
This plain language makes clear that marijuana and marijuana metabolites found in the body as a result of legal consumption are not considered prohibited substances. Here, Mr. Diaz’s physician approved the use of marijuana to treat Attention Deficit Hyperactivity Disorder (“ADHD”).2 See Affidavit by Nick Diaz attached as Exhibit “A.” As a result, the presence of Carboxylic Acid (a non-prohibited substance) cannot serve as a basis for discipline.
B. The Legal Consumption of Marijuana Out-of-Competition Is Not Prohibited.
1. WADA Makes Two Important Limitations for Marijuana.
WADA is an independent agency monitoring drug use in sports and has promulgated an International Standard. See WADA’s Prohibited List attached as Exhibit `B.” The NSAC, as well as other regulatory bodies, have adopted the International Standard classifying prohibited substances in categories of “in-competition,” “out-of-competition” and “in particular sports.” Id; See NAC 467.850 (2)(f) (any drug identified by WADA on its Prohibited List is “adopted by reference”).
Such substances as anabolic steroids, growth hormones (GH) and diuretics are prohibited “at all times” compared to marijuana which is prohibited only “in-competition.” Id. In evaluating marijuana, WADA permits such use “out-of-competition” but prohibits such use “in-competition.” The category for Substances Prohibited In-competition includes:
Natural (e.g. cannabis, hashish, marijuana) or synthetic delta 9tetrahydrocannabinol (THC) and cannabimimetics [e.g. "Spice" (containing JWHOI8, JWI-I073), HU-210] are prohibited.
Notably, WADA’s International Standard does not prohibit marijuana metabolite in any category. In part, WADA recognizes the long detection period associated with marijuana metabolites may extend weeks and even months after consumption. See Affidavit of John Hiatt, Ph.D. and Curriculum Vitae attached as Exhibit “C.” In addition, marijuana metabolite is not a psychoactive substance and not classified by the Pharmacy Board as a Schedule I or II substance. By way of adopting WADA’s International Standard, the NSAC should similarly find that the presence of Carboxylic Acid is not a prohibited substance.
2. NSAC Adopts WADA ’s Limitations.
The NSAC has adopted the two limitations promulgated by WADA: (1) marijuana is prohibited only “in-competition”; and (2) excluding marijuana metabolites as a prohibited substance. See NAC 467.850 (2)(f). The evaluation by WADA finds a substance prohibited only if it meets two of the three criteria:
- It has the potential to enhance or enhances sport performance;
- It represents an actual or potential health risk to the athlete;
- It violates the spirit of sport
See Exh. “A.”
Mr. Diaz’s general practice of discontinuing medical marijuana eight (8) days before a fight eliminated the possibility of any behavioral and psychological effects associated with the active ingredient of marijuana (THC) which typically lasts a few hours.
As it relates to the marijuana metabolite at issue, there is no medical or scientific evidence to support that Carboxylic Acid is performance enhancing or unsafe. As such, there is no policy advanced by prohibiting; marijuana metabolite resulting from legal consumption eight (8) day before the fight.
3. The Long Detection Window, Makes Marijuana Different from Other Prohibited Substances.
The active ingredient of marijuana (THC) upon ingestion is immediately circulated throughout the body where it is preferentially absorbed by fat tissues because of its chemical properties.5 See Exh. “C”. THC resulting from the regular use of medical marijuana is typically sequestered for long periods of time.
Id. In this post-fight urine test, the presence of Carboxylic Acid may have been elevated by two additional physiological factors not present in recent fights: (1) the increased physical exertion associated with five rounds compared to much shorter fights of 2011 e.g., Evangelista Santos (2 rounds), Paul Daley (1 round) and B.J. Penn (3 rounds); and (2) DIAZ’s uncharacteristic ten pound weight loss compared to an average weight loss of two pounds the day before weigh-ins. Id. The interplay of these physiological factors together with the long detection time for medical marijuana users further explains why WADA (and by adoption NSAC) does not consider metabolites as a prohibited substance.
In WADA’s view, as adopted by the NSAC, marijuana consumption `but-of-competition” and marijuana metabolites in general, are not considered performance enhancing or unsafe. The policy reasons making such limitations is even more persuasive when detection of marijuana metabolites results from the legal use of medical marijuana eight (8) before the fight. As such, Mr. Diaz did not test positive for a prohibited substance under NAC 487.850 and it is submitted should not be subject to any discipline.
Dated this 5th day of March, 2012.
AFFIDAVIT OF NICK DIAZ
STATE OF CALIFORNIA
COUNTY OF SAN JOAQUIN
COMES NOW, NICK DIAZ, and being first duly sworn, swears and deposes as follows:
- I have been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).
- My physician, Robert E. Sullivan, M.D., (CA License G31309), approved the use of medical marijuana to treat ADHD.
- I am in full compliance with the registry laws for medical marijuana in California.
- As part of my general practice, I discontinue using medical marijuana eight (8) days before a fight,
- Consistent with this general practice, I discontinued use of medical marijuana eight (8) days before the fight which is the subject of this Complaint.
- The day before weigh-ins, I had to lose a substantial amount of weight (10 pounds).
- In addition, this five round fight required increased physical exertion compared to the three (3) shorter fights of 2011.
SUBSCRIBED and SWORN TO before me this 6th day of March 2012, NICK DIAZ.
LORI L. PENNEY, NOTARY PUBLIC in and for said County and State
AFFIDAVIT OF JOHN HIATT, Ph.D.
STATE OF NEVADA, COUNTY OF CLARK
COMES NOW, JOHN HIATT, Ph.D., and being first duly sworn, swears and deposes as follows:
- I received a Ph.D. from Yale University in the field of organic chemistry and have been qualified in state and military courts as an expert in organic chemistry to include the testing of bodily fluids for drugs and toxic substances (see attached CV).
- The legalization of marijuana by several states in recent years, including Nevada, presents a challenge for both athletes and regulators in sporting contests that include urine drug tests.
- The active compound in marijuana, Delta-9-Tetrahydrocannabinol (THC), is rather unique among pharmaceuticals in that it has quite limited solubility in aqueous solutions but is very soluble in oils and fats, including the fatty tissues of the human body.
- DIAZ did not test positive for marijuana (Delta-9-Tetrahydrocannabinol (THC)).
- Due to this unusual property (solubility in fatty tissues), the time interval between ingestion and elimination is prolonged and not easily predictable since it depends on multiple variables, including amount of drug ingested, frequency and duration of ingestion, body fat content and metabolic turnover of body fat stores.
- DIAZ experienced two physiologic factors which were losing a substantial amount of weight prior to the fight and the increased physical exertion associated with a five round fight compared to previous shorter fights that may have contributed to the elevated presence of inactive metabolites.
- The most common testing protocol for detecting illegal use of performance enhancing drugs by athletes is a pre and/or post-contest urine drug test. In the case of marijuana the compound detected by the testing procedure is Delta-9THC-Carboxylic Acid, which is the pharmacologically inactive metabolite of THC.
- Since the metabolite may be detectable in the urine for days or even weeks after cessation of use of THC it is not a reliable indicator of current or even recent use.
- Prior to legalization this was not an issue since detection of the metabolite was an automatic rule violation with no valid excuse. The advent of the World Anti-Doping Association (“WADA”) and the concept of “in-competition” and “out-of-competition” drug use has also complicated the issue of marijuana use since the metabolite is detectable in the urine for (in some cases) weeks after any pharmacologic effect of the parent drug has ceased.
- A post-fight urine test for THC metabolite is not a sufficient or proper means of determining whether an individuals’ prior use of THC is in any way affecting that individual at the time a urine sample is collected.
- If an individual has a valid medical prescription for marijuana in some form, then in view of all the uncertainties associated with interpreting the meaning of the presence of THC metabolite in urine, it is not reasonable to reach any conclusion with regard to a persons ability to compete in an athletic contest.
- The only logical way to make that determination would be to test a blood sample for the presence of THC. A positive blood test for THC would be an indication of pharmacologic effect at the time of sample collection.
- In my opinion to a reasonable degree of scientific certainty, the presence of 25 ng/mL of inactive metabolite in DIAZ’s post-fight urine sample is consistent with DIAZ’s protocol of discontinuing medical marijuana use eight (8) days before a fight. Such a break in usage of marijuana would ensure that his normal usage would have no impact on DIAZ’s performance “in-competition” or create a safety risk.
SUBSCRIBED and SWORN TO before me, JOHN HIATT Ph. D.
NICCOLE MARIE PARKER, NOTARY PUBLIC in and for said County and State
John E. Hiatt, Ph.D.
8180 Placid Street
Las Vegas, NV 89123
- 1963 A.B., Occidental College, Los Angeles, California (major: Chemistry)
- 1968 Ph.D, Yale University, New Haven, Connecticut (Field: Organic Chemistry)
- 1968-1970: Postdoctoral Fellow, Department of Chemistry, Stanford University, Stanford, California
- 1971-1973: Postdoctoral Trainee in Clinical Chemistry, University of California Medical Center, San Francisco, California
- 1973-1976: Clinical Chemist, Valley Clinical Laboratory, Palm Desert, California
- 1976-2003: Technical Director, Associated Pathologists Laboratories Las Vegas, Nevada
- 2003-2007: Clinical and Forensic Chemist, Quest Diagnostics, Las Vegas, Nevada (Quest Diagnostics is successor Company to Associated Pathologists Laboratories)
- 2008-present: Partially retired, on-call employee at Quest Diagnostics, Las Vegas, Nevada
Other Relevant Information:
- Qualified as an expert witness in the areas of analysis of drugs and poisons in materials of human origin and interpretation of data pertaining thereto in the District Courts of Clark, Douglas, Elko, Lyon, Mineral, Nye and Washoe Counties, Nevada, and Air Force Courts (Nellis Air Force Base, Luke Air Force Base and Los Angeles Air Force Base).
- Independent Consultant: Forensic Chemistry