MMA Great Nick Diaz Inquires About Therapeutic Use Exepmption for Marijuana

by Steven Marrocco | MMA Junkie

While the Nevada State Athletic Commission waited for his license application to fight Anderson Silva at UFC 183, middleweight Nick Diaz took several drug tests at the UFC’s office, according to documents obtained by MMAjunkie.

The tests were taken so Diaz could forward the commission a clean drug test, per the terms of a 2012 suspension he received after a decision loss to Carlos Condit at UFC 143, his second drug test failure after a 2006 suspension for marijuana. Diaz’s manager believed any tests beyond the clean sample would be kept secret unless authorized by the fighter.

But with the clock ticking, the manager, Lloyd Pierson, allegedly admitted that the fighter was having a tough time passing a test and mentioned the possibility of obtaining a therapeutic-use exemption for marijuana to the NSAC’s legal representative, Nevada Deputy Attorney General Chris Eccles.

Diaz eventually submitted a clean sample on Jan. 28, clearing the way for the fight. But the information from the tests he took with the UFC is now at the heart of a battle between the fighter and the Nevada attorney general’s office over what evidence will be presented to the commission during Diaz’s hearing Monday in Las Vegas.

Diaz (26-10 MMA, 7-7 UFC), 32, faces fines and a potentially lengthy suspension for his third alleged marijuana infraction following a unanimous decision loss to Anderson Silva (34-6 MMA, 17-2 UFC) at the Jan. 31 pay-per-view headliner at MGM Grand Garden Arena in Las Vegas. (Silva later tested positive for multiple banned substances and was suspended and fined.)

Diaz’s reps deny the fighter failed his third test and argue the disclosure of the pre-fight test results will unfairly influence commissioners when they decide whether or not to take administrative action against him. This past week, they filed a motion to “quash” the NSAC’s subpoena for the documents.

“Prejudice will result from the adverse inference taken against Mr. Diaz from any test result disclosures,” wrote Diaz attorney Alicia Ashcraft and co-counsel Lucas Middlebrook. “Unfairness will result from admitting evidence that is not relevant and in breach of confidentiality.

“The effect will surely be to undermine Mr. Diaz’s due process rights by the commission’s abuse of discretion.”

The attorney general’s office, which reps the NSAC in administrative proceedings, filed a motion in opposition, countering that the tests prove Diaz used marijuana and lied about it on pre-fight medical paperwork.

“Diaz did not file his application until January 28, only three days before the contest,” wrote Nevada Deputy Attorney General Chris Eccles. “Why did he wait so long to apply for a license for the biggest fight of his life? The answer is simple: Because he could not pass the required urine test.”

It was previously known that Diaz took three NSAC-ordered drug tests in connection with the Jan. 31 fight at Las Vegas’ MGM Grand Garden Arena. He passed the first and last one, according to the WADA-accredited Sports Medicine Research and Testing Laboratory, which performs in- and out-of-competition testing for the NSAC. He failed the second one, according to another drug lab, Quest Diagnostics, which performs fight-night testing for the commission.

The attorney general’s office based its complaint against the fighter on the second result, pointing to marijuana metabolites in his urine in excess of 300 ng/mL, or double the NSAC’s allowed amount of 150 ng/mL, as well as his pre-fight medical paperwork in which he said he hadn’t used any drugs in the previous month.

But on Aug. 3, Aguilar subpoenaed Diaz to produce results for any tests not performed by the commission that he took between Jan. 13-28, when he submitted his test for licensure. In his opposing motion, Eccles said Pierson told him “on or about Jan. 23” that Diaz was having trouble providing a clean test and inquired about a TUE for marijuana.

The hearing was continued to Monday, Eccles wrote, to give Diaz more time to produce the results.

As previously reported, Pierson told MMAjunkie that Diaz attorney Middlebrook had a scheduling conflict and couldn’t attend the Aug. 13 hearing.

Diaz’s reps say they were assured that several tests they took “at the direction and under the authority of” the UFC would not be made public. (The UFC did not immediately respond to a request for comment.)

“Through its representative, UFC assured Mr. Pierson — and thus Mr. Diaz — that all UFC-arranged out-of-competition urine specimen collections, tests, and corresponding results were to be strictly confidential and to remain undisclosed unless Mr. Diaz consented otherwise,” Diaz’s attorneys wrote.

They also noted that the UFC’s tests utilized a 50 ng/mL cutoff as opposed to the commission’s higher cutoff of 150 ng/mL, according to the fighter’s motion, which suggests why he may have had trouble passing.

“The disclosure of such tests could adversely affect his professional reputation, damaging his income,” they wrote. “Moreover, the commission has no claim on such tests that were out-of-competition, conducted by utilizing collection procedures and testing methodology inconsistent with applicable WADA standards, and undertaken by Mr. Diaz in the good faith belief that they would remain confidential.”

The commission, however, argues that the results are fair game because they were disclosed by Diaz’s reps prior to the fight and are relevant to the complaint against him.

“And now, Diaz blithely argues that these results are confidential,” Eccles wrote. “He even asserts a commercial interest in preserving the confidentiality of failed urine tests disclosed by his own manager as part of the commission’s application process.

“In fact, Diaz was desperate to get licensed for the biggest of his life. But he waited and waited until the 11th hour to apply because he could not obtain the required clean drug test result.”

As of Tuesday, the NSAC hadn’t ruled on Diaz’s motion.

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