Sherdog Rewind: An Interview with Ross C. Goodman, Attorney for Nick Diaz

By Jack Encarnacao Apr 2, 2012

When Nick Diaz appears before the Nevada State Athletic Commission next month to appeal his suspension for marijuana use, his corner will have a powerful new member.

Ross C. Goodman, one of the most influential attorneys in Las Vegas, will represent the embattled UFC welterweight contender. The son of a longtime Las Vegas mayor with experience in high-profile cases -- the kind that prompts invitations to come on Nancy Grace’s television show -- Goodman has been a go-to defense lawyer in the city for people facing marijuana possession and impaired driving charges.

Goodman and a fellow lawyer revived the World Fighting Alliance in 2005 and made waves by signing names like Quinton “Rampage” Jackson, Carlos Condit and Lyoto Machida. The UFC eventually purchased the promotion and its fighter contracts. Goodman joined Jack Encarnacao on a recent edition of the Sherdog Radio Network’s “Rewind” program to discuss his history in MMA and the nature of Nevada’s case against Nick Diaz.

To stay updated on the show, follow it on Twitter @SherdogRewind. How is marijuana detected in a person’s system? How does it show on tests?
Goodman: It should show up as an active ingredient of THC, which is the active ingredient of marijuana. In this case, Nick Diaz tested for the presence of its metabolite, called “THC carboxylic acid,” which is an inactive ingredient of marijuana metabolite, which can stay in your system stored in your fat tissues for weeks, up to months, after use of marijuana. Most people understand that [the] psychological effects of marijuana after smoking it wear off within two to six hours. That is what the commission, the regulatory agencies, are concerned about because you don’t want somebody fighting under the influence or impaired by a psychoactive substance. Once that active ingredient wears off within two to six hours of use, then all that’s left are the residual metabolites from the metabolism of the marijuana stored in somebody’s fat tissues, which is not a controlled substance, which is not psychoactive, which is simply an inactive metabolite which has no impact on an athlete. So the difference between an active and inactive marijuana metabolite is that an active metabolite has a psychoactive effect and an inactive one does not?
Goodman: That’s correct. If the active marijuana metabolite clears the system in hours, wouldn’t athletic commissions have to test seconds before a fighter goes out to the ring to ensure he’s not fighting while impaired? Don’t commissions take tests too far out to tell if a fighter has marijuana in his system when he walks to the ring?
Goodman: Let me clarify for a second. The psychological and physiological effects of marijuana last upwards of six hours, but if you test within 24 hours or 48 hours, it can still show for the active ingredient of THC (formal name is delta 9-tetrahydrocannabinol) and that’s what sports agencies and regulatory commissions prohibit -- marijuana “in-competition.” So a post-fight urine test could show for marijuana, the active ingredient, if you smoke it 24 hours before the fight. To be clear, did Diaz’s positive test come from a pre- or post-fight test?
Goodman: They’re alleging that the basis to sanction Mr. Diaz is the presence of this metabolite in a post-fight urine test. Whether or not carboxylic acid is a banned substance per the letter of the regulations, isn’t it still a trace element of marijuana and proof of use?
Goodman: Of course, it’s directly related from marijuana use, but the point is this: it’s not only Nevada, the World Anti-Doping Agency and most other regulatory bodies only prohibit the active ingredient of marijuana in-competition and not out-of-competition. So that’s an important distinction that I think everybody has to make, and, again, Nick Diaz didn’t test for marijuana, only marijuana metabolite and marijuana metabolite itself, it’s not prohibited, both in Nevada and by the world Anti-Doping Agency, which is the international organization that monitors and regulates sports competitions. Nick Diaz did not violate any rule by having an inactive metabolite in his post-fight urine test. In the WADA code, there is a clause that says any substance that is not expressly banned but has not been approved by any authority for “therapeutic use” is prohibited, meaning anything could conceivably be considered prohibited if you can’t show evidence that it’s been approved by a regulatory body. Is finding such evidence part of your case?
Goodman: Well, I mean, it’s much easier than that. Again, as a lawyer, the first thing that lawyers should do is read the rule, so as much as I’d like to take credit for pointing out the obvious, I can’t. WADA, which is incorporated by expressed reference in the Nevada rules, says, “We don’t care if an athlete smokes marijuana out-of-competition, whether it’s legal or illegal.” Here, of course, we know that any use of marijuana by Nick Diaz was legal. He had a marijuana card; a doctor approved the use of medical marijuana. He’s an outspoken medical marijuana patient, so that’s not the issue. Regardless of legal or illegal use, the premiere international organization that regulates sports says, “We don’t care about marijuana out of the competition.” So it’s not just semantics, marijuana versus marijuana metabolite. There’s a reason why they permit marijuana out-of-competition but not in-competition, and there’s a reason why they say, “We don’t even care about marijuana metabolite, whether out-of-competition or in-competition,” because marijuana metabolite has no impact; it’s not performance-enhancing and obviously doesn’t represent a safety risk. It’s not a psychoactive substance like marijuana is, and, so, there are real policy reasons behind what substances are prohibited and which ones aren’t. [This] bolsters our argument that trying to sanction an athlete, in this case Mr. Diaz, for an inactive metabolite -- which has no bearing on his sports performance, which was consumed legally more than a week before the fight -- is not a rule violation. It begs the question, how do you ensure an athlete is not fighting while high? Just by showing whether that active metabolite (delta 9-tetrahydrocannabinol) is present in a post-fight test?
Goodman: It’s as simple as that. If you’re under the influence of marijuana, which everybody agrees an athlete shouldn’t be in-competition, then it would show when you take a post-fight urine test. It would show for THC, for the active ingredient of marijuana, as opposed to residual metabolites, which could come from consuming marijuana weeks, if not months, before the fight. Because marijuana is one of those substances which has such a long detection window, longer than almost any other drug that we know, and because it’s water soluble and it has the capacity to just stay in your fat tissues, there’s no rational basis to prohibit somebody, especially in this case, when you legally consume it weeks before the fight. And it has no effect whatsoever on that athlete’s performance, and it’s not considered a prohibited substance. And, so, that was the basis of our response to the Nevada athletic commission. One of the things that colored MMA fans’ response to this new allegation against Diaz was his 2007 marijuana positive when he fought Takanori Gomi in Las Vegas. There was a commission hearing then, and a commissioner basically said Diaz wasn’t feeling the blows in there because he was high he could absorb more punishment. What’s your sense of that?
Goodman: Well, those comments aren’t going to be allowed and permitted in this hearing if I’m representing Nick Diaz, because those are completely frivolous, unsubstantiated, not-based-in-reality statements. You have to have some scientific evidence to make a statement like that; you have to have some expert evidence. That’s what happens in these hearings most of the time. Fighters come in unrepresented [by an attorney], you have a urine test and a fighter just accepts whatever punishment, and the commissioners -- and, in that case, that one commissioner -- can make these statements that have no basis in reality. Well, we retained one of the foremost forensic toxicologist experts in Nevada, who’s going to be testifying at the hearing on Nick Diaz’s behalf, and those statements are not going to be allowed because they’re completely false. Unlike in the pending matter, Diaz had the active THC in his system in the Gomi fight, correct?
Goodman: You know, I don’t recall offhand whether it was active. In either case, there’s a couple different things also in the legal landscape that has occurred since that fight. One of which is there’s been a lot more medical studies and scientific studies supporting what we’ve been saying, which I’ve outlined in my reply to the Nevada athletic commission and substantiated by the affidavit provided by our expert. I think the commissioners are going to be more sensitive to this popping off and making statements that have no basis in science and medicine, number one. Number two: that happened in 2007. In 2009, Nevada specifically fell in line with other states that have had legalized the use of marijuana. Nevada has a specific statute, which says, “These are the substances which we define and consider prohibited substances.” And they made a specific exception for medical marijuana users and, so, I think that, from a legal point of view, the athletic commission will have a very tough time in saying it recognizes the only statute that exists in Nevada exempts marijuana and marijuana metabolites from its prohibited list and then still sanction Nick Diaz. That statute did not exist back in 2007. Why doesn’t marijuana fall into the same category as ADHD medications like Ritalin, which you need to get a therapeutic exemption to use as a licensed fighter? Just because something is legal to use in society doesn’t mean a commission has to let you use it as a licensee, right?
Goodman: Yeah, but Nick Diaz wasn’t using it in-competition, so it’s completely inapplicable here. What you’re talking about are prescribed medications that an individual needs to continuously use and therefore uses during competition. Nick Diaz has a general practice of discontinuing marijuana use eight days before a fight, so he wasn’t under the influence and he wasn’t consuming an illegal substance -- whether you want to call it prescription medication or medical marijuana -- in-competition. So there was no need for him to seek a therapeutic use exemption. And again, that’s why Nevada and the World Anti-Doping Agency say, “We don’t care about your marijuana use before the fight. We only care about it in-competition.” And Nick doesn’t use it in-competition. It would be foolish for him to use it in-competition. The Nevada Attorney General’s office told Yahoo! Sports that Diaz lied on his pre-fight medical questionnaire because he didn’t mention his medical marijuana use on it. What’s your response to that?
Goodman: For a prosecutorial agency -- which is the AG’s office, where this statement came form -- to come out when there’s a disciplinary hearing coming up and call somebody a liar is just outrageous, number one, and irresponsible, but more than that, it’s just wrong. But before I talk to you about that, I think it’s very indicative that they don’t come out and respond to these issues that we raised, talking about marijuana metabolite not being a prohibited substance. That’s the basis for this whole action that Nevada’s taking against Nick. Instead of responding to that, they’re now retreating back and trying to latch at anything to try and show that there should be a reason, a basis, to discipline Nick, and the response is quite simple: they’re wrong. Nick truthfully answered that question on that one-page, pre-printed form that’s given to fighters at the weigh-ins the day before the fight. I understand that the athletic commission now is in a difficult position because they can’t address the real issues that we raised, so they have to latch on to that, but the problem with that argument is that it’s contrary to federal law. The federal government doesn’t call medical marijuana “prescription medication.” The DEA doesn’t call medical marijuana “prescription medication.” The pharmacy board doesn’t. Doctors cannot prescribe medical marijuana. I mean, it just shows you that they’re so unfamiliar with the medical marijuana law to make a statement like that. So Nick truthfully answered the question. He didn’t take prescription medication. Nobody, no responsible authority, no medical doctor, the U.S. government, nobody would construe medical marijuana, legal medical marijuana, to be the same as a prescription medication. In fact, when you look at the state requirement, the requirements for each state that legalizes marijuana, there’s no mention of prescription medications. In fact, you have to have a physician’s statement to do different things; you have to have an approved medical condition -- ADHD, which Mr. Diaz has; you have to have a doctor explaining to you the risk/benefits; you have to have the doctor provide a statement and do all these things. Nick has never seen the word “prescription medication” in renewing his application. Filling it out, it wouldn’t even cross his mind. And the second part of that is that this ... it’s just ridiculous. It’s a one-page, pre-printed form that Nick didn’t even fill out; and it wasn’t sworn under oath, it wasn’t under penalties of perjury; it was “to the best of his knowledge.” Is medical marijuana a prescription medication? To the best of Nick’s knowledge? No. To the government’s knowledge? No. To the American Medical Association? No. So I think Nick is right in line with everybody else. Did you intimate there that Nick himself didn’t fill out the form?
Goodman: No, it’s my understanding that somebody else did. Do you know who that was?
Goodman: No. If that pre-fight questionnaire isn’t under oath and the person himself doesn’t even have to fill it out, what purpose does it serve? Why wouldn’t everybody just lie on it?
Goodman: Well, I mean, it’s one thing to lie, but the point is that he’s not being untruthful about it; he’s not lying about it. But if it is a concern, then the athletic commission needs to be more progressive and modify the rules, instead of, after the fact, trying to find something to blame Nick Diaz on because they have a losing argument right now. Why don’t you be proactive? Why don’t you be responsible and why don’t you write questions that are reasonable and clear for somebody to understand and say, “Have you taken medical marijuana in the last two weeks? Have you done this? Have you done that?” Instead of, after the fact, try and suggest that he was untruthful because he didn’t identify with prescription medication as a form of medical marijuana? [It’s] ridiculous when nobody odes. How is medical marijuana not a prescription? Don’t you get a prescription for it?
Goodman: No, you don’t. The government -- the federal government -- does not allow a medical doctor, a physician, to actually prescribe medical marijuana. It’s illegal; the doctor will lose his DEA license. The states that have legalized marijuana have a whole host of criteria that you have to satisfy in order to register for this card, which everybody refers to as a “medical marijuana card,” and then it’s up to you to get the marijuana. But a doctor … he doesn’t write a script for you -- like he would for Adderall -- for medical marijuana [and] then you take it to a pharmacy. It’s not a prescription medication. You’re legally entitled to use medical marijuana in different states where you satisfy the criteria, none of which requires a doctor’s prescription, because a doctor can not legally prescribe medical marijuana. What is to be gained by using marijuana as an athlete? There are people who say it helps with concentration and other things.
Goodman: I’ve heard the same things that you’ve heard. From a legal perspective, I can tell you that California and Nevada allow individuals to use marijuana to mitigate different approved conditions, one of which is ADHD. In the doctor’s affidavit you submitted as part of your appeal, Dr. John Hiatt, of Las Vegas, claims blood tests, not urine tests, are needed to assess precisely when a person used marijuana. Considering commissions only do urine tests, wouldn’t that greatly complicate the question of whether someone is using in-competition or out-of-competition?
Goodman: Yeah, I think Dr. Hiatt’s right in pointing that out. The burden is on the state, the regulatory agency. The commission’s trying to find whatever they can to knock Nick Diaz, but Nick is just a fighter. It’s up to them to craft better questions on their pre-fight questionnaire; it’s up to them to do better testing if that’s what they want to do. Nick’s not responsible for any of this. If they want to be more accurate, if they want to have better pre-fight questionnaires, then it’s up to the athletic commission, the governing body, to do it, not a fighter. Does it strike you as a reach to include marijuana use, even out-of-competition, as something that someone would need to get cleared by an athletic commission, like they would testosterone replacement therapy?
Goodman: I think that’s something that somebody can do in the future. I hope that this hearing and this case will help expedite the reform in medical marijuana, but, as it stands right now, there are real policy reasons to prohibit marijuana use in-competition, just like how we prohibit alcohol use in-competition. Do you have a timeline in mind as far as how long it will be before MMA fans know when Nick Diaz can return to action, if he indeed wants to?
Goodman: Well, I think at the hearing [the commission] will issue findings potentially that day. If Nick Diaz wanted to fight and the UFC wanted to use him in the promotions, then there’d be no legal reason not to. In a prior life, so to speak, you were one of two people who bought the World Fighting Alliance, which the UFC ended up purchasing from you. What are your memories of how you got involved and that whole experience?
Goodman: It was a great time. I’m a big fan. I know a lot of the fighters just from being a lawyer in Las Vegas and doing different things I do here, and Tito [Ortiz] approached me one day when he was kind of banned from the UFC and said, “Let’s go ahead and start up the WFA again.” And back then, B.J. Penn was left out of the UFC, and I stated talking with B.J. Penn. And then that led to Lyoto Machida and Quinton “Rampage” [Jackson] and Urijah Faber, and it just started to make sense. So I basically revived the WFA. We were successful in getting the first [MMA-related] 30-minute piece on Showtime, which aired before our fight at the [Los Angeles] Forum. I have a good relationship with the owners of the UFC and [UFC President] Dana White, and it just made sense at that point to do a deal. In the beginning, was the sense that you were going to take on the UFC? That was a hell of a roster you had.
Goodman: Yeah. I mean, like anything else, you just take it one step at a time, and we were having a good time and we put together a good roster and we had other people that were talking to us. But like anything else, it comes down to money, and we know the UFC, Zuffa [LLC], had a lot of money behind it. When you sold, did you just want out or was it a price you couldn’t refuse?
Goodman: I think it just made sense for everybody. It made sense for the fighters, it made sense for the UFC and it made sense for the owners of the WFA, so it was an amicable business transaction. If it had played out differently, would you be joining me today as a promoter instead of a lawyer?
Goodman: We definitely had a lot of interest. We were talking to a lot of fighters that ultimately went into the UFC who the UFC, at the time, was also trying to sign up. And I don’t want to mention those names right now, but the obvious names, and who knows what could have happened. But everything happens for a reason, I believe.
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