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Opinion: NAC's Lundvall, Aguilar not ‘responsible persons’, failed to live up to their mandate

After letting it all sink in, Paul Gift believes the NAC commissioners failed to live up to their mandate and chose convenience over doing the right thing in the Nick Diaz case.

Ethan Miller/Getty Images

Something's been eating at me for two weeks since the conclusion of Nick Diaz's hearing in front of the Nevada Athletic Commission (NAC). Why did no one stand up and say something when Commissioner Aguilar asked if there were any public comments at the end? The answer could be that few if any members of the public without a direct connection to the fight industry were in attendance, and those in the fight industry don't exactly want to talk back to the NAC. But this was the highly-anticipated Nick Diaz hearing. Was there really not one person in the room or on the phone who could speak freely? Would you have said something if you were there? Would I? I like to tell myself so but who really knows.

As this question's been eating at me, I started wondering why wasn't I writing anything? I have a voice at Bloody freaking Elbow for god's sake. While NAC hearings aren't my specialty, anything that keeps this story in the news is a good thing in my book.

Full disclosure: I very much dislike the Diaz brothers' pre- and mid-fight attitude, antics, and sportsmanship. I train at Kron Gracie Jiu-Jitsu Academy where loving the Diaz brothers is almost mandatory and I do, but only as amazing martial artists, not for the way they conduct themselves leading up to and in a fight. I haven't yet met them in person and therefore have no opinion on what they're like outside of the fight world or as teachers or training partners.

NAC's Black Monday

Monday, Sept. 14, 2015 was a dark day in mixed martial arts history. At least two powerful athletic commissioners in the country's most powerful combat state revealed themselves to be disgraces to the sport, disgraces to their position, and disgraces to the governor who appointed them. Their bias was clear throughout the proceedings. By now, we've heard the stories about a "Kangaroo Court" and laughter, but three other things stood out to me while watching.

  1. At the 105:10 mark of the UFC Fight Pass broadcast, a NAC staff member asks, "Is Mr. Diaz going to be testifying?" Commissioner Lundvall then remarks, "He better be."
  2. At the 171:50 mark, Commissioner Lundvall refers to Nevada Deputy Attorney General Christopher Eccles as "Chris."
  3. At the 202:02 mark, Commissioner Aguilar overrules Mr. Eccles' objection with "Overruled, sorry."

These may seem like somewhat minor events but they stand out to me as subtle cues of bias. While a NAC hearing isn't a court of law, can you picture a judge saying "He better be" in reference to a defendant testifying? Can you picture a judge calling a prosecutor by his first name in the middle of a trial? Can you picture a judge overruling the prosecutor with a "Sorry" at the end? We can't picture these things because truly dispassionate authorities don't do them. While NAC commissioners aren't judges and don't operate under the rules of a court of law, they should, at a minimum, be dispassionate regulators, and that's clearly not what they were on NAC Black Monday.

The right to not testify against one's self is one of the most fundamental principles drilled into every American child's mind from a very young age. The NAC, however, has peculiar regulatory power in this regard.

NAC 467.942 Testimony of respondent or certain other persons; failure to respond to subpoena. (NRS 467.030)

1.  If a respondent fails to testify in his or her own behalf or asserts a claim of privilege with respect to a question propounded to him or her, the Commission may infer therefrom that the respondent's testimony or answer would have been adverse to his or her case.


3.  If, on a ground other than the properly invoked privilege against self-incrimination, a respondent fails to respond to a subpoena, or fails or refuses to answer a material question propounded to him or her, the Commission may deem such failure or refusal to be independent grounds for granting the relief requested by the Executive Director in the complaint with respect to that respondent.

I don't know the history of how this perverse regulation came to be or why it was determined necessary in a world of physical financial records, fight videos and drug testing evidence. But I do know that just because someone may do something doesn't mean they have to or ought to do it.

I don't think Commissioner Lundvall's primary motivation was to embarrass Diaz by having him say "5th Amendment" over and over and over again. She seemed to me to be operating to the absolute letter of the perverse NAC 467.942 regulation, and possibly covering her bases.

Rather than allow Diaz a single, blanket 5th Amendment claim, Commissioner Lundvall put a total of 38 questions on record to obtain as many instances as possible of Diaz refusing to answer so that an adverse inference could be drawn from each one, and possibly to protect herself in case a judge rules in the future that some of Diaz's 5th Amendment assertions were "properly invoked." Commissioner Lundvall even discusses this at the 270:26 mark when she says, "One of the things that I'm trying to do is to make the appropriate record that, in this civil proceeding which we are in is a civil proceeding, that we may infer a negative or an adverse response to the question that in fact that is given in response to a question for which the 5th Amendment is asserted. So I'm going to continue as far as to make the record here please."

Putting aside Commissioner Lundvall's motivations, a more important question can be asked. Is this the behavior of a responsible person? Here are the relevant clauses from the Nevada Administrative Code regarding NAC's rules of evidence and the evidentiary standard for findings of fact.

NAC 467.936 Procedure for hearing; rules of evidence. (NRS 467.030)  At a hearing before the Commission:

4.  The Commission need not follow the rules of evidence that a court must follow. All evidence that the Commission determines to be relevant and submitted in accordance with the requirements of this chapter is admissible. If the Commission determines that the evidence is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, the Commission may use that evidence alone to support a finding of fact.

NAC 467.956 Evidentiary standard for findings of fact. (NRS 467.030)  The Commission will base its findings of fact made pursuant to subsection 4 of NRS 467.113 upon an evidentiary standard in which the evidence, when considered and compared with that opposed to it, has more convincing force and produces in the minds of the members of the Commission a belief that what is sought to be proved is more likely true than not true.

If asserting one's 5th Amendment privilege is somehow evidence, is this the sort of evidence "on which responsible persons are accustomed to rely in the conduct of serious affairs"? I claim no. I strongly claim no. A reasonable, responsible person conducting serious affairs does not make and is not accustomed to making an adverse inference when someone asserts their 5th Amendment privilege, no matter how much they may want to, and they certainly don't ask question after question to rack up the adverse inference points like they're collecting tickets at Dave & Buster's.

What does a responsible person do? It's not hard to figure out. A responsible person allows a respondent to defend him or herself and analyzes the evidence without malice or bias. Diaz's evidence was overwhelming. A responsible person recognizes that there's just too much doubt. If you can't confidently punish a fighter when their traditional "B" sample tests clean, then you certainly can't confidently punish a fighter who has two clean, bookended tests performed with a better collection procedure and by a better lab than the one test in which they failed.

To put it in regulatory terms, there's just no way "the evidence, when considered and compared with that opposed to it, has more convincing force and produces in the minds of [responsible persons] a belief that what is sought to be proved is more likely true than not true."

To make matters worse, Commissioner Aguilar as much as admits that WADA testing is the NAC's preferred protocol and the only reason they don't use it is that "it is cost prohibitive both for our commission and for our promoters." He goes on to admit, "Yes, I think anybody would like to employ the WADA standard. However, given the expense and the amount of compliance, it doesn't allow for, I think, combat sports throughout the country and throughout the world to have the resources to employ the WADA standard, but when we can we will...And with that in mind, I think we do have a positive test today. It's not up to the standard as many would judge throughout professional, elite athletes and the WADA standard, but it is a standard we have employed and we have utilized throughout time and I think we will continue to do so." (UFC Fight Pass broadcast, 288:20-290:05)

When we can we will? Does Commissioner Aguilar realize that they could and they didn't...twice?

It's crystal clear that WADA testing is the NAC's gold standard and here we have two WADA tests that were performed for the NAC, bookending their own test, that are completely ignored. Would a responsible person do this? There appear to be only four people in the world who would do this and they happen serve together on the same commission.

What would cause these four commissioners to deviate from the behavior of a responsible person? As an economist, I live in the world of incentives and a pretty damn good incentive would seem to be that NAC members were more concerned with protecting the integrity of their cheaper, non-cost prohibitive testing procedure than doing the right thing towards another human being. What burdens and headaches might be created down the line if they cast any doubt on their testing procedure today? The correct answer is, "Who cares? What's the right thing to do?" This is another man's life we're talking about here.

The right thing would be to recognize that the WADA tests created too much doubt, pop Diaz for writing inaccurate information on his pre-fight medical questionnaire a second time, double the penalty from whatever it would've been for a first offense, and get on with our lives. But irresponsible people don't often do the right thing.

No one stood up for Nick Diaz at the end of the last NAC meeting, but we don't have to live with that twice. I challenge all Las Vegas residents who are passionate fans of mixed martial arts to attend the next NAC hearing at 9am on Thursday, Oct. 29 and express your Diaz thoughts directly to the commissioners when the floor is opened for public comments. Tell them in a public forum how you feel about their disgraceful behavior. Be truthful but please be respectful with your words. The last thing we want to do is address shameful behavior with shameful speech of our own.

And remember, bombarding the NAC's general e-mail address only burdens Colleen, a nice, well-meaning staff member who wasn't directly involved in this decision and, like many of us, just shows up for work each day to do her job. Better outlets are to add your name to the White House petition and to air your grievances to Nevada Governor Brian Sandoval at this website. He has the power to remove commissioners from their post and, while that may be unlikely, he also has the power to appoint and re-appoint them. If we bug him enough, perhaps he might think differently about these decisions in the future.

Perhaps he might think about what's right instead of what's convenient.

All opinions expressed in this piece are Paul's alone. Follow him @MMAanalytics.