The Nevada State Athletic Commission (NSAC) has been in an uproar since May, when UFC fighter Wanderlei Silva refused to take a random drug test prior to UFC 175. In a recent action, Silva has opted to petition disciplinary actions of the NSAC.
In an ordinary case of fighter vs. NSAC drug testing policy, Silva would be hard pressed to escape discipline measures, but at the time of his refusal he was not licensed with the NSAC, and unless fighting in the state of Nevada, has no reason to apply for a license.
The governing statute according to NAC 467.850(5) states, “An unarmed combatant shall submit to a urinalysis or chemical test if the Commission or a representative of the Commission directs him or her to do so.”
The language of the statute does not expressly state that an ‘unarmed combatant‘ must be currently licensed for its application. It has yet to be decided if that fact is legally implied. On July 31, the Nevada attorney general’s office filed a formal complaint against Silva. The AG’s office asked for investigative costs, attorney fees and any other punitive costs the NSCA sees fit.
Without having held the license at the time of his refusal, Silva may still be subject to disciplinary action should the AG succeed in the complaint. Under NAC 467.082 , “The Commission may deny the application of an applicant if it finds that the applicant has performed any act which would, if performed by a licensee, subject the licensee to discipline pursuant to NAC 467.885.”
The statute also states, “Any applicant who has been denied a license by the Commission may not file a similar application until 1 year after denial by the Commission, unless the Commission specifies otherwise at the time of denial.”
Both Fighters on Banned Substances
Silva did admit to having taken a banned diuretic, which he claims was used to assist in healing and pain management of a wrist injury he sustained on the set of “The Ultimate Fighter Brazil 3.” Silva had been scheduled to fight Chael Sonnen at UFC 175, but was replaced by Vitor Belfort due to the drug test controversy. Sonnen was tested twice for the event and failed both times, therefore neither fight happened.
Lack of Jurisdiction
Silva’s legal team is moving to dismiss the complaint because of lack of jurisdiction. The contention focuses on the fact that Silva was not licensed with the NSAC and sites NAC 467.850(6) as stating, “A licensee who violates any provision of this section is subject to disciplinary action by the Commission.”
The petition also asserts that because Silva did not compete in UFC 175 in the state of Nevada, he does not fall under the definition of an “unarmed combatant” and therefore had no need to be licensed.
The NSAC has stated that this case is important because they are ramping up their out-of-competition testing procedures and they have a right to order a potential athlete to undergo testing preemptively. To succeed on this contention, the express language of pre-emptive testing has to be evident in the statute.