A Look at the Nevada State Athletic Commission's New(ish) Drug Testing Policy

In a post I wrote for FightTicker yesterday, I commented on the fact that two more UFC 91 fighters testing clean in another round of the Nevada State Athletic Commission's year-round tests, I had a couple questions about this testing policy because I didn't know much about it.

I started researching a little bit and found the memo, dated May 24, 2008, that John R. Bailey, chairman of NSAC, wrote to all NSAC Licensees. You can check it out yourselves here. (It's a .pdf file.)

Check after the jump for some text from the memo as well as my thoughts on their new drug-testing policies. For another post I did on drugs in MMA, go here.

From the memo:

Therefore, in addition to the steroid and drug performed on contestants on fight night, the Commission will be requiring fighters licensed by the Commission, and applicants for such licensure, to submit to these tests when ordered by the Commission at other times during the year. (The costs of these "pre-fight night" tests will be paid by the Commission if funds are available; otherwise, the costs will be paid by the fighter or the promoter.) The process for selecting which fighters are required to submit to these tests will be based on: (i) a random selection; (ii) some indication that a particular fighter may be using a prohibited substance; (iii) the fact that a fighter has previously tested positive for using a prohibited substance; (iv) a request by a Commissioner; or (iv) any other cause determined by the Commission.

I realize that last (iv) should be (v), but I'm quoting from the original.

First, let's start with what will likely be one of the less controversial/easier to deal with complaints. The potential financial cost. If the promoter runs out of money, they're going to charge the fighter. Sure, that might not make a difference to guys like Couture or Lesnar, but what about guys fighting in the smaller promotions making $500 to show and $500 to win? Drug tests aren't cheap. To combat this, the Commission could just raise the cost of licensing fees, to make sure there was some surplus money that could pay for these tests, but who do you think that extra cost gets passed on to and hits the hardest? The fighters. So let's hope that NSAC has been stashing away money for some time now, because nobody likes a raise in fees.

As many of you have undoubtedly realized, the process by which someone can receive one of these pre-fight night tests is fairly subjective. Sure, I understand testing people who have previously tested positive for a banned substance, but testing someone on "some indication...a request by a Commissioner...or any other cause determined by the Commission" could cover pretty much anything. First of all, let me say that I am in favor of this, in principle. I also understand that NSAC is supposed to be a non-partisan commission, above the influence of promotions.

But let's be real - this process could easily be abused. Not to mention, if a particular fighter pissed off one of the Commissioners, that Commissioner could cause the fighter to be randomly tested every week - or for that matter, every day. I'd like to believe that such an abuse of power would quickly be noticed, but one man's abuse of power is another man's modus operandi.

I understand that some people could be particularly wary of the "...any other cause..." language because of the potential for massive invasions of privacy. However, let's not forget - these are not just random people on the street being picked for drug tests - they are athletes who chose to apply for a license to fight. They know sports are drug free, and should behave as such. I'm not judging what anyone chooses to do on his or her own personal time, but I think it's ludicrous when some athletes get upset when their licenses are suspended, or when they're fined. The broke the rules that were outlined for them at the very beginning and they should be accordingly punished.

Additionally, I'm sure some fighters will make the argument that they agreed to testing when they were signed up for a fight, but not year-round. Frankly, that's probably just not true. Sure, the fighters did not likely anticipate being tested year-round, but I'd almost guarantee that all NSAC license applications (prior to this new change) had in language that stated that the licensee could be subject to random testing at any time.

Some other relevant language relates to what happens if one of the fighters fails one of these tests.

If a fighter either fails to take the test within the required timeframe (determined by the Commission) or fails the test, the Commission may refuse to license the fighter, refuse to allow the fighter to compete, and/or discipline the fighter.

I emphasized "may" because of, once again, the potential for abuse of power/disparate treatment. This sort of power the Commission has once again allows for potential manipulation. If the language had read "will" refuse to license the fighter, or "will refuse to allow the fighter compete", the fighters would know beyond a reasonable doubt that if they tested positive, they would not be competing. However, the "may" allows for the possibility that somebody might still be allowed to compete if they test positive, and hypothetically, a powerful promoter or executive could attempt to sway the commission to allow the person to fight.

But that's a hypothetical situation. I actually don't have a big problem with this language because it gives the Commission some wiggle room. It's not hard to imagine a situation where the Commission would need some leeway, such as where a fighter took a prescribed diuretic to help rid his body of a staph infection long before a fight was supposed to occur, but because of these year-round tests, he tested positive for a banned substance. Because the Commission has "may" in there and not "will", they are not required to refuse the fighter a license or prevent them from fighting. They could, for example, just order a regular round of tests until the fight occurs to make sure that the diuretic is out of his system long before it would help him as a performance enhancer.

Athletic Commissions get a lot of bad press, whether it be from guys like Armando Garcia, who recently resigned from the California State Athletic Commission (to see a comprehensive list of the bad decisions Garcia made or was a part of, check out FightLinker.) However, the bottom line is that the Commissions are looking out for the fighters, whether or not they look out for themselves. Their decisions may be unpopular, but they're meant to keep the fighters safe, level the playing field, and bring legitimacy to the sport.

NSAC's website has a number of other articles/memos/studies linked on their website, so I'll likely be posting on some of those in the future, too.

Until then, I'm just waiting to see how this new policy plays out.


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