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« | Home | »

Deciphering Nick Diaz’s Nevada court petition

By Zach Arnold | September 28, 2012

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You know the gist of the story regarding Nick Diaz’s predicament in Nevada. Keith Kizer, one of the most detestable human beings in combat sports, doesn’t mind having his non-endocrinologist doctor Timothy Trainor giving out hall passes to fighters for testosterone… but use marijuana outside of a fight and have it show up on a urine test? That’s when the sledgehammer comes down. Way to promote an anti-doping agenda in combat sports.

We also know that Kizer comes from the Nevada AG’s office, meaning the hack is politically & legally connected. So, the question is — can Nick Diaz, even with Ross Goodman as his attorney, find a judge willing to hear his court petition to review/overturn the NSAC’s suspension of Diaz (12 months, $79,000 fine) or will the request be tossed aside?

The introduction

Here’s how Diaz’s court petition filing starts out:

This is an application for judicial review of the Decision and Order of the Nevada State Athletic Commission made in Findings of Fact, Conclusions of Law, and Order Regarding First Amended Complaint dated June 26, 2012, suspending Petitioner’s license as mixed martial artist for 12 months and fining Petitioner in the amount of $79,500 in respect of allegations that Petitioner violated NAC 467.850 and NAC 467.885(3) by:

a) providing a urine sample that tested positive for inactive marijuana metabolites following his participation in a mixed martial arts contest on February 4, 2012; and

b) providing false or misleading information to the NSAC by his answers to questions on his Pre-Fight Medical Questionnaire dated February 3, 2012 (the “Questionnaire”).

Fundamentally, Petitioner’s position is that:

a) Inactive marijuana metabolites do not constitute a ‘prohibited substance’ under NAC 467.850 and the NSAC erred in law by treating them as such; and

b) The information Petitioner provided on the Questionnaire was accurate and correct, and the NSAC erred in law by finding a violation of NAC 467.885(3) where the Petitioner had properly and correctly answered the questions the NSAC had elected to include on the Questionnaire. The NSAC further erred by mistakenly conceiving of the allegation as determined the issue of ‘credibility’, the findings made in respect of which are clearly erroneous – but which issue does not even arise given the accuracy of Petitioner’s answers given on the Questionnaire.

Filing translation: Kizer and company are a bunch of biased, hack liars who didn’t give Nick Diaz a fair hearing in front of the athletic commission and didn’t follow the letter of the law.

Rather than copy the text of the 29-page filing, we’ll just note some snippets from the filing that advance the argument that Ross Goodman is making here.

“Errors Under Review”

Here’s the core argument from the filing:

It is Petitioner’s position that:

a) The NSAC’s conclusion that Petitioner violated NAC 467.850 was premised on a misinterpretation of NAC 467.850 and, specifically, its error in treating inactive marijuana metabolites as a prohibited substance under NAC 467.850; and

b) The NSAC’s conclusion that Petitioner provided false and misleading information was premised on (i) an error of law in finding a violation under NAC 467.885(3) where the information given by Petitioner on the Questionnaire was factually correct; and (ii) credibility findings that were clearly erroneous, arbitrary or capricious.

Based on this argument, this is what Ross Goodman is now asking for:

Accordingly, it is open to this Court to review the factual findings made by the NSAC on the basis that the findings should only be upheld if the evidence before the NSAC reasonable satisfies the more stringent “more convince force” standard.

Regardless, this petition should be resolved in the Petitioner’s favor solely on the basis of correcting the errors of law made by the NSAC. Insofar as there may be limited findings of fact that are directly engaged by the issues raised by this petition, such findings cannot withstand review under either the general or the specifically applicable standard as set forth above.

If Ross Goodman is able to get a court hearing to overturn/throw out the NSAC suspension ruling against Nick Diaz, this is the argument used as case law for future suspensions regarding marijuana usage by fighters.

However, marijuana metabolite is not a prohibited drug or injection under the NSAC’s regulations.

‘Inactive marijuana metabolites’ are neither an enumerated ‘prohibited substance’ under NAC 467.850 nor are they incorporated by reference at NAC 467.850(2)(f). Inactive marijuana metabolites are not identified on the most current edition of the Prohibited List published by the World Anti-Doping Agency.

(later on…)

The NSAC’s conclusion is therefore premised on its misconception that medical marijuana is a “prescription medication” which constitutes an error of law — or a finding that is clearly erroneous or arbitrary and capricious given the absence of evidence that Petitioner used any prescription medication in the two weeks before the Contest.

(later on…)

Medical marijuana is not such an over the counter medication/product. Retail stores and pharmacies do not stock medical marijuana on their shelves. The NSAC made no finding that medical marijuana constituted an “over the counter medication/product.”

This certainly isn’t a legal fight that I think Kizer and the AG’s office could have ever expected to have on their plate. Even if you are pessimistic about Goodman being able to get his client a court hearing to overturn the suspension, it is going to be very interesting to see if Kizer shows up in court and gets pressed on this matter because this is not a man that handles criticism or pressure well at all. He becomes very whiny in quick fashion and exudes petulance. Even if most of the factors here (political & legal in terms of connections) are on his side, Kizer himself is not a great witness or figurehead when it comes to credibility. It’s probably a safe bet that the AG’s office will try to keep Kizer as far away as they possibly can from this hearing.

Given all of that that, I’m not surprised at all that Ross Goodman is pushing the issue against Kizer here. It’s just too tempting of an opportunity to pass up.

Topics: Media, MMA, UFC, Zach Arnold | 14 Comments » | Permalink | Trackback |

14 Responses to “Deciphering Nick Diaz’s Nevada court petition”

  1. Actually, I can’t imagine anything more entertaining than Kizer and Diaz being in the same court session.

    But realistically, it seems like the whole thing is hampered by Diaz being himself. What I mean by that is he’s not as articulate a speaker as the court seems to desire, and anytime Diaz is asked a direct question, he runs the risk of accidentally indicting himself.

    If there’s anything I noticed from his hearing last May, Diaz has a habit of answering questions that he doesn’t really know the answer to, such as if he did something or went somewhere. He’ll be asked if he did something on Monday, and Diaz will say yes, when he actually didn’t.

    Here’s a specific example: Diaz was asked if he stopped smoking marijuana eight days prior to competition, and he says yes, but immediately follows up with a statement that he doesn’t keep track with a log or anything. Arghhh.

    God, looking at the transcripts just makes me angry. It sounded less like a court hearing and more like a visit to the principal’s office.

    • 45 Huddle says:

      I agree. Diaz is just the wrong person to be using to fight against the NSAC. He is a 2 time offender for the same offense. He comes across as highly uneducated.

  2. david m says:

    I really detest these state athletic commissions. What a bunch of worthless cunts. Zach, thank you for all your efforts to expose these horribly inept, corrupt, hypocritical douche bags.

    • Fluyid says:

      I find them to be largely staffed by small people…. they’re just small. By that, I mean that they very often seem to be a bit on the insecure side and end up being and acting petty, which often manifests with the “big me, little you” -type syndrome.

      Sometimes you get pulled over for speeding and you get a nice cop and other times you get the cop who fits the “power mad” stereotype. This sort of stereotype is also often manifested in many/most of these commission people.

      But that’s just one man’s opinion.

  3. klown says:

    Love this.

  4. 45 Huddle says:

    Off topic, but still MMA related. What are people’s thoughts on the new format for both MMA Fighting and Bloody Elbow? I find them both to be horrible. On a desktop…. it is ugly, hard to follow, and lacks any sort of proper design. On a smart phone, the websites are now completely unusable. I find myself going to both websites much less now.

    • Well, I don’t have an outright scathing hate for it.

      Right now, the elements make sense, but the way they’re organized and executed is completely balls backward. If they just trimmed things down and scrunched everything closer, it would be less of an issue.

      SBN’s real issue is that this redesign targets lurkers, who just read the front page and leave without clicking anything. With the way all the SBN sites look now, those people HAVE to click headlines to get info, which will drastically improve traffic.

      http://www.bloodyelbow.com/2012/9/27/3418472/how-sb-nation-united-should-look-img
      http://www.mmamania.com/2012/9/27/3416128/one-simple-way-to-fix-sb-nation-united

      So, I’ve made my own recommendations, but Geno Mrosko says that the dev team isn’t going to do anything.

      • Steve4192 says:

        ” With the way all the SBN sites look now, those people HAVE to click headlines to get info, which will drastically improve traffic.”

        Which is why they are crowing about their ‘improved traffic metrics’ even though many of their regular readers are greatly disappointed by the redesign.

    • Steve4192 says:

      I hate it.

      My visitation to those sites has dropped off dramatically, as have my click-throughs to the articles.

      Prior to the redesign, I read the front-page of BloodyElbow religiously and found myself clicking through to about 80% of the articles because the first few paragraphs hooked me enough that I wanted to finish the article. I also commented frequently.

      After the redesign, I find myself just reading headlines and only clicking through on the feature articles that I am familiar with (judo chops, MMA history, event previews, etc). In terms of comments, I have only made a handful since the switch. I have also stopped visiting Bloody Elbows rankings page altogether, as I can’t even find it anymore without using Google to get me there.

    • macaroni says:

      It’s the nail in the coffin for me. I’ll be taking my traffic to websites that don’t make you fight so much to get information.

      • Steve4192 says:

        The worst part is, it goes beyond MMA for me. Some of my favorite NFL/NBA/MLB/collegiate sports sites have also been rendered unreadable.

  5. klown says:

    45, I much quit Bloody Elbow cold turkey the moment they switched to the new format. I can’t stand the new layout.

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