Veteran mixed martial arts fighter Wanderlei Silva has filed a reply in support of motion to dismiss for lack of jurisdiction in the case brought against him by the Nevada State Athletic Commission.
The motion was filed on Tuesday by Silva’s Las Vegas-based lawyer, Ross Goodman, and was stamped as received by the Nevada Attorney General’s administration office on Wednesday. Bleacher Report obtained a copy of the reply from Goodman Law Group. A full version of the reply may be viewed here.
Goodman told Bleacher Report that the motion is set to be heard on September 23.
The Attorney General’s office filed a formal complaint against Silva on August 5 after the fighter fled from a random drug screening earlier this year. The complaint urged the Nevada Athletic Commission to punish Silva for evading a random drug screening during the lead-up to his scheduled fight with Chael Sonnen earlier this year.
Silva’s defense has been that he was not licensed at the time of the attempted drug screening and therefore cannot be held responsible for the results. Goodman’s response letter follows these same lines. In the opening paragraphs, Goodman cites NAC code 467.850 (the code that governs unarmed combat in Nevada), which says:
“A licensee who violates any provision of this section is subject to disciplinary action by the Commission.”
Goodman follows up by stating:
It was no accident that the Complaint omitted any reference of the mandatory requirement. There is no dispute that the NSAC cannot lawfully take disciplinary action against Mr. Silva based on a NAC 467.850(1), (2) or (5) violation because Mr. Silva was not licensed as required by NAC 467.850.
Goodman’s second reply revolves around the NSAC‘s assertion that unarmed combatants do not necessarily need to be licensed. Goodman notes that, by NAC rules, an unarmed combatant is “engaged in unarmed combat in a contest.” Silva was not licensed at the time, and Goodman, citing NAC 467.0038(1), said he would have been required to obtain a license in order to compete in a contest.
All contestants, promoters, managers, seconds, trainers and ring officials must be licensed by the Commission. No person may participate, directly or indirectly, in any professional contest or exhibition of unarmed combat unless the person has first procured a license from the Commission.
The commission claimed that NAC 467.850(1) allowed it to take disciplinary action against an unarmed combatant. Goodman argues that the reference to an unarmed combatant in NAC 467.850(6) allows the commission to change the results of a contest if an unarmed combatant commits a violation of 467.850. For example, a fighter fails a post-fight drug test and his win is overturned to a no-contest.
In closing, Goodman said the NSAC lacks the authority to discipline a non-licensed person, and that any attempt to exceed an agency’s jurisdiction is without law. Goodman also says Nevada Deputy Attorney General Christopher Eccles has confused the standard for dismissal of factual issues with legal issues.
Lastly, the Attorney General’s office confuses the standard for dismissal of factual issues with legal issues. The dismissal standard of accepting all factual allegations as true is irrelevant to a question of law subject to de novo review of whether the NSAC exceeded its statutory authority.
He cites several Nevada cases: Andrews vs. Nevada State Board of Cosmetology, Clark County School District vs. Clark County Classroom Teachers Assn and City of Henderson vs. Kilgore.
Goodman closes the reply:
“Accordingly, the NSAC has no alternative except to dismiss the Complaint or subject itself to reversal on appeal for disciplining a non-licensed person.”
Silva has been out of action since a win over Brian Stann in March 2013.
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