An author at CombatSportsLaw.com is suggesting that the NSAC came close to overstepping the bounds of its legislatively delegated authority during its disciplinary proceedings against Jon Jones. Specifically, Commissioner Marnell allegedly contemplated a form of discipline that wasn’t permitted by the legislative framework.
Marnell stated, “Instead of sending the money through us to the general fund to be used by some other government entity I would much rather see the money go into the community where, so, in my mind I can get very soft hearted about all the positives of all of this. And it doesn’t have to get paid until the next fight he fights in the State of Nevada where we would take it out of the cheque so it doesn’t burden his immediate cashflow”
The author suggests that the Commission doesn’t have the authority to effect such a creative proposition, a thought that was inserted by the Commission’s Clerk. The author of the article provided this interchange from the hearing:
“Commissioner Marnell, at this point any fine has to go into the general fund,” the Clerk inserted. “And if it’s something that this Commission wants to see the legislature change they can go before the legislature and say that they would like a certain percentage of the fine to actually go to…” at which time the Commission cuts the Clerk off and suggests they can find a way around this to which the Clerk again responds, “At this point any fine must go directly to the General Fund.”
It is unclear whether the Clerk was correct. Of course, we assume he or she has a working knowledge of the State’s regulations.
But Chapter 467 of the Nevada Administrative Code, which governs unarmed combat, doesn’t specifically address any limits regarding forms of discipline. In comparison, Chapter 645, which governs real estate brokers and salespersons, specifically orders, “Except as otherwise provided in this section, all fees, penalties and charges received by the Division pursuant to NRS 645.410, 645.660 and 645.830 must be deposited with the State Treasurer for credit to the State General Fund.”
It is unclear which legislative provision the clerk was referencing. There may be something buried within related rules that aren’t easily found online. Or, the clerk may be dead wrong, and the Commission may just have a public perception problem that causes us to assume it is engaging in funny business.
The author of this particular article references the Wanderlei Silva prosecution, which he or she deemed improper. NAC 467.850(5) compels an “unarmed combatant” to submit to a urinalysis test or chemical test if the Commission demands one. According to Section 467, the Commission’s disciplinary authority only extends to “a licensee who violates any provision of [the section].” NAC 467.850(6). The author concluded that because Silva was not licensed at the time he refused to test, the Commission’s hands were tied unless Silva later applied for a Nevada license. But the Commission has disciplined him anyway, levying a $70,000.00 fine and a lifetime ban.
Wanderlei’s attorney plans to appeal the ban, claiming the Commission lacked jurisdiction, based upon his same reading of the Rules. “It’s a matter of principle,” he said. “(The NSAC) has no jurisdiction and they recognize they have no jurisdiction. The answer from the attorney general was weak to say the best, based on nonsensical rules that are very black and white. I look forward to appealing it before an unbiased judge, who will readily see you have to be a licensee.” If Wand’s attorney is correct about his intention to appeal, his announced retirement from the sport may have been premature. Marnell’s creative disciplinary proposal in the Jon Jones hearing certainly invites speculation that the proceedings involve an expansive degree of discretion, and that they may even edge towards becoming incredibly arbitrary. But it is unclear, given the legislative rules, whether he was proposing to overstep. In the Wanderlei matter, however, the law appears to be plain. The Commission’s authority to render discipline has been limited by the Nevada State Legislature to armed combatants who have been licensed in Nevada.
While we may be a bit trigger-happy in citing abuses of power by the NSAC, they have appeared to demonstrate a willingness to disregard the limits of the law. That question will be answered if Wanderlei appeals. But the issue seems rather black and white, despite how we feel about ducking out the back door of a training facility to avoid a test. Perhaps the Commission is more concerned with taking a strong stance against test evasion than with obeying the letter of the law. That sounds good in theory, but it is a dangerous road to take given the NSAC lost an executive director in January amid controversy.