By Zach Arnold | April 27, 2012
- Nick Diaz’s attorney uses Jonathan Tweedale’s marijuana defense
- Nevada amends complaint against Nick Diaz, shift strategy
- Keith Kizer: Sensitive, sanctimonious speech
- Text of Team Diaz rebuttal to Nevada commission
- Nick Diaz attorney Ross Goodman to Nevada: If you don’t give us our hearing on April 24th, your suspension is invalid
The following is the text from a filing by Ross Goodman, Nick Diaz’s lawyer, for a preliminary injunction hearing on May 14th at 10:30 AM in a Las Vegas court room. We posted this filing separate from the lawsuit text because of the length of the filing.
MEMORANDUM OF POINTS AND AUTHORITIES
This is an application for a preliminary injunction staying the summary or temporary suspension of the plaintiff’s fighter’s license and staying the disciplinary proceedings commenced against him. The suspension, effected by the Nevada State Athletic Commission (the “NSAC”) summarily and without a hearing to determine the merits of the complaints made against him, has been in place for nearly three months. Despite repeated requests for a prompt and speedy hearing to adjudicate the merits of the complaints made against him, the NSAC has refused to set the matter down for a hearing. During this time, the plaintiff has been unable to earn a livelihood as a professional mixed martial artist. Absent this Court’s intervention, the plaintiff will continue to be deprived from the opportunity to earn a livelihood. This Court should issue a preliminary injunction in this case because, as set forth in further detail below, the plaintiff has demonstrated the requirements of a reasonable probability of success on the merits and proof of irreparable injury, and the relief sought is necessary to prevent the continuing violation of the plaintiffs statutory and due process rights.
II. STATEMENT OF FACTS
The plaintiff, Nicholas Diaz, is a professional mixed martial artist. On or about February 4, 2012, Mr. Diaz participated in a professional mixed martial arts contest at the Mandalay Bay Events Center in Las Vegas, Nevada (the “Contest”). That Contest was conducted under the direction of the NSAC. Before the Contest, Mr. Diaz applied to the NSAC for a license as a mixed martial artist, which the NSAC duly issued and approved pursuant to NAC 467 before the Contest.
On February 8, 2012, Deputy Attorney Christopher Eccles sent a letter to Mr. Diaz. (Exhibit A.) That letter enclosed a complaint filed by the NSAC on that same date (the “Complaint”) and Notice of Hearing on Temporary Suspension. (Exhibit B.)
The Complaint alleged that the urine sample provided by Mr. Diaz for urinalysis immediately following the Contest reflected a positive result for the presence of marijuana metabolites. The Complaint further alleged that marijuana metabolites are “prohibited by the regulations of the Commission” (Complaint, paras. 6 and 7). The Complaint sought relief including, inter alia, a monetary fine and disciplinary action “against Diaz’s license pursuant to the parameters defined at NAC 467.885″, which includes a potential suspension or revocation of
In his February 8, 2012 letter Mr. Eccles stated that the NSAC “will hold a hearing on the complaint … in the near future” [emphasis added] and that the NSAC is “willing to work with you regarding the scheduling of that date”. Mr. Eccles also stated that the hearing shall be conducted “in accordance with Nevada Revised Statute (NRS) Chapter 233B”.
The February 8, 2012 letter also enclosed a document entitled “Notice of Hearing on Temporary Suspension” that stated that an NSAC meeting was scheduled for February 22, 2012 on which “the issue of temporary suspension” would be included as an agenda item.
On or about February 9, 2012, the NSAC’s Executive Director, Keith Kizer, suspended Mr. Diaz’s license under NRS 233B.127(3) and NRS 467.117(1) (the “Summary Suspension”).
In reliance on Mr. Eccles’ representation that the hearing of the Complaint would be scheduled “in the near future”, Mr. Diaz elected not to appear at the February 22, 2012 interim hearing. (Affidavit of Nicholas Diaz, paras. 13-14.) Mr. Diaz instead elected to marshal his resources for defending the Complaint itself, which Complaint appeared to Mr. Diaz to have no merit.
It never entered Mr. Diaz’s mind that the NSAC would elect to effect a suspension of indefinite duration in the absence of any hearing on the merits of the Complaint — by indefinitely postponing the hearing of the Complaint itself, (Affidavit of Nicholas Diaz, para. 15-17)
On February 22, 2012, the NSAC proceeded with its regularly scheduled meeting and resolved to continue the Summary Suspension of Mr. Diaz’s license pending a final determination of the complaint. (Exhibit C.)
On March 7, 2012, in response to the Complaint Mr. Diaz filed (i) his reply to the Complaint (the “Reply to Complaint”), (ii) his affidavit sworn March 6, 2012, and (iii) the affidavit of Dr. John Hiatt sworn March 2, 2012. (Exhibit D.)
The Reply to Complaint stated in Mr. Diaz’s defense that, inter alia:
- a) Mr. Diaz is an authorized medicinal marijuana patient for treatment of attention deficit hyperactivity disorder (“ADHD”);
- b) marijuana metabolite is not a prohibited substance under NSAC’s regulations;
- c) the NSAC and the World Anti-Doping Agency prohibit the consumption of marijuana only “in competition”;
- d) Mr. Diaz’s practice is to discontinue medical marijuana treatment eight days before any fight to eliminate the possibility of any behavioral and psychological effects associated with medicinal marijuana’s active ingredient; and
- e) Mr. Diaz has committed no violation of the NSAC’s regulations.
Dr. Hiatt’s affidavit stated, inter alia:
- a) Mr. Diaz did not test positive for marijuana (Hiatt Affidavit, para. 4);
- b) testing for inactive metabolites of THC is not a reliable indicator of “current or even recent use”; and
- c) presence of inactive metabolite in a post-fight urine sample is consistent with discontinuing medical marijuana use eight days before a fight, which would have no impact on a fighter’s performance “in competition”.
On March 14, 2012 Mr. Eccles wrote to Mr. Diaz’s counsel and advised that the disciplinary hearing “will be in April”. Mr. Eccles further promised to “contact you when I have a date/time certain”. (Exhibit E.)
Two weeks later, having heard nothing from Mr. Eccles or Mr. Kizer about a hearing date, Mr. Diaz’s counsel wrote to Mr. Eccles on March 28, 2012 requesting an update as to the hearing date. (Exhibit F.)
On or about March 29, 2012, Mr. Kizer delivered to Mr. Diaz’s counsel a revised complaint (the “First Amended Complaint”). (Exhibit G.) The First Amended Complaint made further allegations against Mr. Diaz including, inter alia, allegations that Mr. Diaz provided false or misleading information to the NSAC by indicating on a `Pre-Fight Questionnaire’ that (i) he does not have any serious medical illnesses, (ii) he had not taken or received any prescribed medications in the last two weeks before the Contest, and (iii) he had not taken or received any over the counter medication or products in the last two weeks before the Contest.
On March 29, 2012, Mr. Diaz sent further correspondence to Mr. Eccles requesting a firm date for the hearing. Neither Mr. Eccles nor Mr. Kizer provided a response. (Exhibit H.)
On April 2, 2012, Mr. Diaz’s counsel sent further correspondence to Mr. Eccles and Mr. Kizer requesting an update as to timing. (Exhibit I.) Neither Mr. Eccles nor Mr. Kizer provided a response.
On April 3, 2012, Mr. Diaz’s counsel sent further correspondence to Mr. Eccles and Mr. Kizer requesting the reason for the delay. (Exhibit J.)
On April 4, 2012, Mr. Eccles wrote to Mr. Diaz demanding certain documents relating to Mr. Diaz’s qualification to use medical marijuana pursuant and other documents. (Exhibit K.)
On April 11, 2012, counsel for Mr. Diaz provided to Mr. Eccles:
- a) the filed reply to the First Amended Complaint on behalf of Mr. Diaz (the “Reply to FAC’) (see Exhibit L); and
- b) correspondence (i) enclosing Physician’s Statements that constituted the requisite
written documentation that qualified Mr. Diaz to use medical marijuana pursuant to California Health & Safety Code 11362.5, (ii) objecting to the production of any further medical records on grounds of relevance and privilege, and (iii) requesting confirmation that the disciplinary action. against Mr. Diaz would be formally added to the April 24, 2012 agenda. (Exhibit M.)
In the Reply to FAC Mr. Diaz stated, inter alia:
- a) the First Amended Complaint does not allege any facts supporting that he violated any NSAC rule;
- b) marijuana metabolite is not a drug or injection that has not been approved by the NSAC under NAC 467.850;
- c) all answers provided by Mr. Diaz on the Pre-Fight Questionnaire were “true and accurate to the best of [Diaz's] ability”, and therefore met the standard required by the NSAC;
- d) Mr. Diaz does not believe that ADHD is a “serious medical illness”;
- e) Mr. Diaz does not believe that medical marijuana is a “prescribed medication” and that this belief is consistent with federal law; and
- f) Mr. Diaz does not believe that medical marijuana is an “over the counter” medication.
On April 13, 2012, Mr. Diaz’s counsel delivered further correspondence to Mr. Eccles demanding that Mr. Diaz’s hearing be set down for the April 24, 2012 NSAC meeting, or else the complaint would be deemed to be abandoned. (Exhibit N.)
On April 16, 2012, Mr. Eccles delivered to Mr. Diaz’s counsel correspondence again demanding a copy of Mr. Diaz’s medical marijuana card and declining to commit to a date for the disciplinary hearing, (Exhibit O.)
On April 18, 2012 the NSAC published the agenda for its April 24, 2012 meeting on its website at http://boxing.nv.gov/Agenda/04-24-12AG.pdf. The requested disciplinary hearing relating to Mr. Diaz’s suspension is not on that agenda. (Exhibit P.)
Neither Mr. Diaz nor his counsel has received any further correspondence concerning the date on or by which the hearing of the NSAC’s complaint will proceed.
In the present circumstances, Mr. Diaz’s license has been suspended indefinitely, in the absence of any adverse findings having been made against him by the NSAC.
III. LEGAL ARGUMENT
A. A Preliminary Injunction Is Warranted Because The Licensee Has A Likelihood Of Success On The Merits And Will Suffer Irreparable Harm Absent Injunctive Relief
1. Preliminary Injunction Standard
A preliminary injunction is available upon a showing that the party seeking it enjoys a reasonable probability of success on the merits and that the non-movant’s conduct, if allowed to continue, will result in irreparable harm for which compensatory damages are not an adequate remedy. See, e.g., Labor Comm ‘r v. Littlefield, 123 Nev. 35, 38-39, 153 P.3d 26, 28 (2007); Clark County Sc/i. Dist, v. Buchanan, 112 Nev. 1146, 1150, 924 P.2d 716, 719 (1996); Camco, Inc. v. Baker, 113 Nev. 512, 516, 936 P.2d 829, 831 (1997); NRS 33.010. Additionally, injunctive relief is to be granted in order to preserve the status quo until such time as the underlying action is resolved. See Pickett v. Commanche Construction, Inc., 108 Nev. 422, 426,836 P.2d 42, 44 (1992); GoTo.com, Inc. v. Walt Disney Co., 202 F3d 1199, 1210 (9th Cir. 2000)
(“The status quo ante litem refers not simply to any situation before the filing of a lawsuit, but instead to `the last uncontested status which preceded the pending controversy”).
As set forth more fully herein, Mr. Diaz has demonstrated a likelihood of success on the merits and that he will suffer irreparable harm if the Summary Suspension is permitted to continue. Thus, the Court should grant Mr. Diaz’s motion for a preliminary injunction.
2. Diaz Is Likely To Succeed On The Merits Of His Claims
A preliminary injunction is warranted because Mr. Diaz is likely to succeed on the merits of his claims. In order to show a likelihood of success on the merits, movants are not required to prove that they will ultimately prevail in the lawsuit. Rather, movants are only required to establish “a reasonable probability of success on the merits.” Clark County Sch. Dist. V. Buchanan, 112 Nev. 1146, 1150, 924 P.2d 716, 719 (1996). Mr. Diaz will likely succeed on the merits of his claims against the NSAC. Injunctive relief is therefore appropriate.
i. Violation of the Prescribed Statutory 45-day Time Period
NRS 233B.127 applies to all revocations, suspensions, annulments and withdrawals of licenses — including licenses issued by the NSAC. That statutory provision, which is a constituent part of the “minimum procedural requirements for the regulation-making and adjudication procedure of agencies of the Executive Department of the State Government” (under NRS 233B.020), is engaged by any “summary suspension of a license … ordered pending proceedings for revocation or other action”, In any such case, “[p]roceedings relating to the order of summary suspension must be instituted and determined within 45 days after the date of the [suspension] unless the agency and the licensee mutually agree in writing to a longer period”
The intent of this statutory provision is to ensure that where an administrative agency suspends a license before a full hearing and adjudication of the merits of the underlying complaint, the agency proceeds to a final determination of the matter on a timely basis. Absent the stipulation as to time set out in 233B,127(3) (i.e. 45 days), licensees are at risk of having their licenses compromised for an indefinite period without any consideration of the merits of the complaint made against them.
Further procedural limitations on the NSAC’s power to suspend a license, pending final determination of a disciplinary complaint, are set out in NRS 467.117. That section provides that (i) each member of the NSAC or its Executive Director may “suspend for a period not exceeding 10 days any license or permit until final determination by the Commission if, in his or her opinion, the action is necessary to protect the public welfare and the best interests of the sports regulated pursuant to this chapter” (subsection (1)), and (ii) if such a suspension is made, then the Commission may upon written notice and after a hearing “continue the suspension until it makes a final determination of any disciplinary action to be taken against the licensee”
NRS 467.117(1) makes clear that the power to suspend a license “until final determination by the Commission” does not imply the power to suspend indefinitely (“…suspend for a period not exceeding 10 days any license or permit until final determination by the Commission…”). NRS 467.117(2) provides for a power to continue a suspension “until final determination [by the Commission]” but does not expressly provide a time limitation. In the absence of any express stipulation as to a time limit in NRS 467,11.7(2), the general time limit set out in NRS 233B.127(3) applicable to suspensions made pending final determination must apply,
given the legislative intent set out at NRS 233B.020,
Furthermore, the time limitation in NRS 233B.127(3) must be interpreted to apply to suspensions made under NRS 467.117(2) to ensure that the latter statutory provision does not, on its face, constitute an infringement of licensees’ due process rights under the Fourteenth Amendment (as elaborated further below).
The Summary Suspension of Mr. Diaz’s license was a suspension made pending proceedings for revocation or other action. The Summary Suspension was continued “until [the Commission] makes a final determination” of the complaint, which must be within 45 days under NRS 233B.127(3). The Summary Suspension of Mr. Diaz’s license was affected on February 9, 2012. The statutory 45-day time limit has already been violated by over four weeks. The NSAC has not even yet set the matter for hearing, and therefore evidences an intention to continue and in fact continues its violation of that statutory requirement. Accordingly, Mr. Diaz’s suspension must now be set aside,
ii. No Finding of “Necessity to Protect the Public Welfare”
Even absent the application of NRS 233B,127, Mr. Diaz’s Summary Suspension was effected contrary to law and must be set aside.
Under NRS 467.117(1) a summary or temporary suspension may be made only where “the action is “necessary to protect the public welfare and the best interests of the sports regulated” [emphasis added]. This statutory requirement is conjunctive, not disjunctive. A suspension made under NRS 467.117(1) is permitted only where it is necessary to protect the public welfare — i.e. where it is necessary for the protection of the community’s health and safety.
Where an administrative or governmental agency is required to make a decision based upon considerations of “public welfare”, such considerations “demand both … a focused attention and the exercise of a fair and enlightened discretion … based upon substantial evidence”. See Nova Horizon, Inc., v. The City Council of the City of Reno, 105 Nev. 92, 98, 769 P.2d 721, 724. In this case, no “substantial evidence” was considered by the NSAC in connection with the Summary Suspension.
NRS 467.117(1) does not license the NSAC to arbitrarily and capriciously effect summary or temporary suspensions on the basis of no evidence at all (as in this case).
No reasonable person acting in good faith could suggest that Mr. Diaz’s license constitutes a threat to the public welfare at large — such that failing to suspend Mr. Diaz’s license immediately, prior to a determination of whether the complaint has any merit, may jeopardize the public welfare. It is even more untenable to suggest that such suspension is “necessary” to protect the public welfare.
Accordingly, insofar as the Summary Suspension of Mr. Diaz’s license was made on the basis of NRS 467.1 17, the suspension was affected wholly absent statutory jurisdiction, and will be set aside.
iii. Violation of Mr. Diaz’s Due Process Rights
Because the consequences of even a summary suspension can be severe, the U.S. Supreme Court has held that the Due Process Clause requires that a statutory provision permitting a temporary suspension pending final determination requires a promptly convened final hearing to determine the merits of a disciplinary complaint. See Barry, Chairman, Racing and Wagering Board of New York, et al. v. Barchi, 443 U.S. SS; 99 S. Ct, 2642, 61 L. Ed. 2d 365.
In Barry, supra, a regulatory authority had suspended a horse trainer’s license after a
post-race urinalysis revealed a prohibited substance in a horse for which the trainer was responsible. The suspension was affected without any hearing on the merits of the complaint, pursuant to a statutory provision that specified no time in which such hearing must be held. The Court held that such suspension did not affront the licensee’s due process rights by permitting a suspension without a pre-suspension hearing, but that the licensee’s due process rights were breached by the statute’s failure to assure a sufficiently timely post-suspension hearing “that would definitely determine the issues” (at 2648-9). The Court held that: “Once suspension has been imposed, the trainer’s interest in a speedy resolution of the controversy becomes paramount” (at 2650) [emphasis added]. Because the statute “as applied in this case was deficient in this respect, the licensee’s suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment” (at 2650),
Over two months have transpired since the Summary Suspension of Mr. Diaz’s license was affected by the NSAC. The NSAC has still not convened a hearing. Nor has a hearing been scheduled. This is not a “speedy resolution of the controversy”, and hence the application of NRS 23313.127 and/or NRS 467.117 is an unconstitutional deprivation of Mr. Diaz’s due process rights.
Furthermore, as set forth above, NRS 467.117(2) does not, on its face, provide for a timely hearing to definitely determine the merits of the complaint. That does not render NRS 467.117(2) constitutionally infirm, in Mr. Diaz’s submission — as, in the absence of an express time limitation in that provision, the time limitation in NRS 233B.127(3) must be deemed to apply.
- a) Because the NSAC has not complied with the 45-day time limitation in NRS 233B.127(3) — the only statutory provision that could render the NSAC’s summary suspension regime constitutionally valid (by assuring a prompt hearing on the merits) — the NSAC’s refusal to promptly convene a hearing for a final determination of the complaint must be deemed to be an unconstitutional deprivation of Mr. Diaz’s due process rights; and
- b) If this Court were to hold that NAC 233B.127(3) does not apply to a suspension putatively effected under NRS 467.117(2), then NRS 467.117(2) is constitutionally infirm on its face — as it permits a license suspension with no assurance of a prompt hearing to ensure a final determination of the complaint.
iv. NSAC February 22, 2012 Meeting Ineffective Under NRS 467.117
The NSAC’s action taken on February 22, 2012 was procedurally ineffective pursuant to the requirements of NRS 467.
A hearing at which the NSAC continues a suspension until it makes a final determination of any disciplinary action is itself a disciplinary hearing. Under NRS 467.113(4), in connection with the adjudication rendered at any such disciplinary hearing, the NSAC “shall file a written report of its findings, adjudication and order in the record of the proceedings and send a copy to the accused”.
In connection with the February 22, 2012 NSAC meeting:
- a) The NSAC has filed no written report in connection with its findings (if any) including, inter alia, the finding that a continuation of Mr. Diaz’s Summary Suspension pending final adjudication of the Complaint is necessary to protect the public welfare;
- b) The NSAC has filed no written report in connection with its adjudication of the request for a continuation of the suspension (e.g. written reasons justifying the basis for continuing the suspension of Mr. Diaz’s license pending final determination of the Complaint, including inter alia its reasons for making any finding that a continuation of the Summary Suspension is necessary to protect the public welfare); and
- c) the NSAC has filed no written report of its order effecting a continuation of the suspension of Mr. Diaz’s license pending final determination of the Complaint.
Accordingly, (i) the NSAC has not complied with the requirements of NRS 467 in connection with February 22, 2012 meeting. By virtue of such failure of compliance, the February 22, 2012 meeting was wholly ineffective to continue the Summary Suspension.
V. The NSAC has lost jurisdiction to proceed with the Complaints
As set forth above, NRS 233B.127(3) provides that, inter alia:
Proceedings relating to the order of summary suspension must be instituted and determined within 45 days after the date of the order unless the agency and the licensee mutually agree in writing to a longer period. [emphasis added]
More than 45 days have elapsed since the suspension against Mr. Diaz was made. The disciplinary proceedings against Mr. Diaz have been instituted but have not been determined. Accordingly, NSAC has lost jurisdiction to proceed to a determination of the disciplinary proceedings. Those proceedings must be deemed abandoned by virtue of the passage of time, as the mandatory limit beyond which the NSAC must not proceed to a determination of such proceedings has elapsed.
The statutory language in NRS 23313.127(3) is mandatory (“must”). While providing this definitive limit on an administrative agency’s powers to proceed against a licensee, there is no statutory provision that empowers an agency to proceed with disciplinary proceedings after the prescribed time limitation has elapsed. In the absence of any such provision, an agency that violates the requirements of NRS 233B.127 has no jurisdiction to proceed with disciplinary proceedings after the conclusion of the prescribed time period.
This interpretation accords with the purpose of NRS 233B.127(3) — i.e. to ensure that administrative agencies do not delay in proceeding to a final determination of a disciplinary matter where interim suspensions have been imposed. This purpose would entirely undermined if agencies were free to proceed with disciplinary proceedings notwithstanding violations of the time limitation set out in the governing statute.
3. Mr. Diaz Will Be Irreparably Harmed In The Absence Of A Preliminary Injunction
Mr. Diaz earns his livelihood solely in connection with his participation in professional mixed martial arts contests as a mixed martial arts combatant.
During the course of the Summary Suspension, over the past 76 days and continuing, the NSAC has prohibited Mr. Diaz from earning a livelihood by participating in mixed martial arts contests. Not only does the present suspension preclude Mr. Diaz from participating in mixed martial arts contests in the State of Nevada, but administrative agencies charged with the sanctioning and regulation of mixed martial arts contests in other jurisdictions will reciprocally enforce Nevada’s suspension.
Furthermore, the entity to which Mr. Diaz has granted exclusive rights to promote mixed martial arts contests in which he is a participant, Zuffa LLC dba The Ultimate Fighting Championship (“Zuffa”), is a licensed promoter in Nevada and is concomitantly prohibited by NAC 467.780 from having “any dealings related to unarmed combat with any person whose license has been suspended or revoked by the Commission”. Mr. Diaz therefore is unable to compete at mixed martial arts events promoted by Zuffa anywhere in the world, so long as his suspension is continued.
The Summary Suspension therefore prevents Mr. Diaz from participating in mixed martial arts contests, generally. This represents a substantial financial loss to Mr. Diaz that cannot be adequately compensated in damages. The NSAC has a statutory immunity from actions for damages for actions based upon the exercise or performance of a discretionary function or duty, whether or not the discretion involved is abused. See NRS 41.032. If Mr. Diaz is successful in setting aside the suspension, Mr. Diaz has no remedy in damages that could provide adequate compensation for the loss occasioned by his wrongful and unlawful suspension by the NSAC.
It is well established a professional fighter suffers irreparable injury where regulatory action (or inaction) prevents him from professional competition. See, e.g., All v. The Division of State Athletic Commission of the Department of State of the State of New York 316 F. Supp. 1246 (S.D.N. Y. 1970) at 1253.
B. Mr. Diaz Should Not Be Required to Post A Bond
Mr. Diaz should not be required to post a bond, or should only be required to post a de minimus bond, pursuant to N.R.C.P. 65(c), as security for a preliminary injunction. The basis for the requirement of a bond is to provide some security for the enjoined party in respect of any loss that party might incur, in the event that the preliminary injunction should not have been made. There is no prospect of the NSAC incurring or suffering costs or damages if the NSAC’s suspension and disciplinary proceedings are found to have been wrongfully stayed. Accordingly, there is no basis for a bond in the circumstances of this case.
For the foregoing reasons, Mr. Diaz requests that the Court issue a preliminary injunction against the NSAC:
- a) staying the suspension made February 9, 2012 and February 22, 2012 on a preliminary basis pending the determination of the within claim;
- b) staying the disciplinary proceedings commenced against Mr. Diaz pending the determination of the within claim or, in the alternative, enjoining the NSAC from issuing any further or other summary or temporary suspension of Mr. Diaz pending final determination of the matters alleged or referred to in the Complaint and First Amended Complaint.
DATED this 25th day of April, 2012.
GOODMAN LAW GROUP, P.C.
AFFIDAVIT OF NICHOLAS DIAZ
COMBS NOW, NICHOLAS DIAZ, and being first duly sworn, swears and deposes as follows;
1. I am a professional mixed martial artist.
2. Since August of 2001, I have earned my livelihood solely in connection with competition in professional mixed martial arts contests.
3. Since the summer of 2011, I have been contracted to Zuffa LLC dba The Ultimate Fighting Championship (the “UFC”) for the purpose of competing in mixed martial arts contests.
4. Over the past year, I have earned in excess of $475,000 in connection with my participation in mixed martial arts contests promoted by the UFC.
5. On February 4, 2012, I participated in a professional mixed martial arts contest at the Mandalay Bay Events Center in Las Vegas, Nevada, for the “UFC Interim Welterweight Championship.”
6. That contest was held under the jurisdiction of the NEvada State Athletic Commission (the “NSAC”) which regulates and sanctions professional mixed martial arts events in the State of Nevada. Prior to the contest, I applied for and was granted a license by the NSAC.
7. On or about February 9, 2012, I learned that the NSAC had commenced a disciplinary proceeding against me in connection with the February 4, 2012 contest (the “Complaint”). It was my understanding that the NSAC believed that I had violated their rules by using marijuana in connection with the February 4, 2012 contest.
8. I received a copy of the NSAC’s filed Complaint dated February 8, 2012, and correspondence from Christopher Eccles enclosing the Complaint on or about February 10, 2012. Mr. Eccles’ letter also enclosed a “Notice of Hearing on Temporary Suspension.”
9. It was my understanding after having reviewed Mr. Eccles’ correspondence and the materials enclosed therewith, that I was required to file an answer to the Complaint and to appear at a hearing on the merits of the Complaint.
10. It was my view at that time, and it my view today, that the Complaint has no merit.
11. I was eager, at that time, to proceed to a hearing before the NSAC for a final determination of the Complaint.
12. I have been diagnosed with Attention Deficit Hyperactivity Disorder, and am in full compliance with the registry laws for medical marijuana treatment in California.
13. As part of my general practice, I discontinue using medical marijuana eight (8) days before any fight. Consistent with this general practice, I discontinued use of medical marijuana eight (8) days before the February 4, 2012 contest in Nevada. I do not believe that this is a violation of the NSAC’s regulations.
14. Following receipt of the Complaint and rleated documents, I sought advice and assistance in responding to the Complaint. It was my expectation, based on the February 8, 2012 letter from Mr. Eccles, that the NSAC would work with me to schedule a hearing of the Complaint very shortly. I also expected that the matter would be very straight-forward to schedule and adjudicate because I was prepared to agree with the NSAC as to the facts, so there would be no factual controversy which could slow down the process.
15. Because Mr. Eccles committed to a hearing ‘in the near future,’ I did not take issue at the time with the NSAC’s suspension of my license prior to the hearings. It is my understanding that the NSAC generally affects suspensions of fighters’ licenses where disciplinary proceedings are commenced, pending a final hearing. I therefore did not object to a summary suspension at the NSAC’s regular meeting on February 22, 2012.
16. Despite repeated requests, the NSAC has still not scheduled a hearing of the Complaint.
17. The NSAC’s delay has surprised and disappointed me.
18. I am particularly disappointed that the NSAC would not proceed to schedule the hearing of an unmeritorious complaint where it has elected to affect a suspension pending the hearing, in the interim.
19. Because the NSAC has not yet schedule a hearing, the suspension continues to be in effect. As long as my license is suspended by the NSAC, I will not be able to take a fight in any jurisdiction that recognizes and reciprocally enforces the NSAC’s suspensions. It is my belief that the majority of athletic commissions in the United States and Canada reciprocally enforce suspensions affected by their peer commissions, such as the NSAC.
20. Also, it is my belief that the UFC is legally obligated under the NSAC’s regulations to refrain from promoting any fight, in any jurisdiction around the world, in which I am a contestant as long as I am suspended by the NSAC.
21. The NSAC’s suspension therefore renders it impossible for me to earn a livelihood.
22. The February 4, 2012 contest for the title of Interim Welterweight Champion was a controversial decision win for my opponent, Carlos Condit. That the NSAC’s judges awarded the decision to Mr. Condit, rather than to me, polarized the mixed martial arts community.
23. On February 7, 2012, the UFC’s President publicly announced that Mr. Condit agreed to an immediate re-match against me.
24. It is my understanding that the winner of that re-match will be offered a contest against Georges St. Pierre, the current UFC Welterweight champion.
25. The summary suspension against me, made without any consideration of the merits of the Complaint, is the only reason I am aware of that a re-match against Mr. Condit has not been scheduled.
26. If the summary suspension is set aside, I would be prepared to compete against Mr. Condit or against any other opponent deemed suitable immediately.
Dated this 24th day of April, 2012.