Following Jon Jones drug test fiasco, NSAC in no hurry to amend current WADA 'out-of-competition' policies

Issue number 15 on the docket for last Monday's (Jan. 12, 2015) Nevada State Athletic Commission (NSAC) hearing was to discuss whether or not the out-of-competition drug-testing program or policies needed to be changed.

Back on Dec. 4, 2014, UFC light heavyweight champion Jon Jones tested positive for a cocaine metabolite known as benzoylecgonine. The champion was not suspended or fined because the NSAC adheres to the World Anti-Doping Agency (WADA) policy and its list for banned substances both in and out of competition.

Benzoylecgonine is not on the WADA "out of competition" list and since the test was weeks before the fight, it was considered "out of competition." The actual time period for out of competition is beyond 12 hours from fight night. Jones was tested a month before the fight and thus was not held in violation.

NSAC chairman Francisco Aguilar brought it up for discussion with the panel of commissioners and they deliberated on a few issues with using WADA policy and whether or not it should be changed. Obviously, the topic was put on the agenda for the hearing because Jones tested for an illegal substance and faced no subsequent punishment for it.

There are, or course, many layers to the onion in regards to this whole issue, from why Jones was tested for substances not on the "out of competition" list, to whether or not Jones should've been fined or suspended, and the UFC's refusal to take disciplinary action, among other things. But since the cat is out of the bag on what was in Jones' system, and the commission is trying to figure out their next step, we will stay on that path.

"As we all know this commission's subject has decided to adhere to the WADA code, in some part, and of that is the banned-substance list," NSAC Chairman Franciso Aguilar said.

"With that, in our program we recently ran into an issue with a fighter -- we are all aware of that fighter and the situation -- and in those drug tests we have opportunities to gather information as a commission as we see fit. The information we did receive was not necessarily the information we all receive, but since we had it, I believe we have to address it and decide where we want to go to as a next step."

Aguilar brought up what many in the media have discussed incessantly the last week, which is that had Jones tested positive for benzoylecgonine "in competition," then they would be having a discussion "as to what the next steps where and the appropriate action that needed to be taken."

"Is 'in competition' definition by WADA appropriate for us and do we want to move forward with that definition? Or do we want to deviate from it some way and kind of develop our own definition?" Aguilar asked the commission.

Commissioner Pat Lundvall -- who appears to be the most knowledgeable among the other commissioners -- went into detail how in 2007, the NSAC conducted a "full evaluation" on adopting WADA's policy and its banned substance list. She said the NSAC only adopted the latter and the "definitions contained within."

If the commission where to decide to change the definition of "in competition" and "out of competition" than Lundval would have "two issues," she stated.

"Do we have jurisdiction to make that expansion? And the way I look at our statute which is found in 467.070, we don't," she continued.

"Number two is that, if in fact that if we were able to make that change, what findings are we using to indicate that somehow a lifestyle choice or a lifestyle drug or recreational drug that is not prohibited out-of-competition would impact what we do have jurisdiction over. And I don't think we have any medical information or medical findings, no nothing, along that line and therefore it is such change that someone could argue could be arbitrary. And the last thing I want to do on a very important issue like this is to give anyone some type of legal argument for which we are unprepared for to deal with."

This hearing was very disjointed, as many of these often are. All the commissioners were not present, as both Bill Brady and Skip Avansino were on a conference call. It was a good example of the slow process of American politics. More minute details of the policy which is already in place were discussed than solutions to the proposed issue by Aguilar as to whether or not the NSAC should change their banned substances for fighters that are "out-of-competition."

Avansino said "it may warrant some other study" and the commission should get "good insight from others in the industry, physicians, and other experts," and thinks the issue is "worthy of review."

Brady didn't offer much as far as what the NSAC could do going forward, but he did offer praise for the job that commission has done so far.

"I think this commission in the state of Nevada has done an excellent job with their drug enforcement and the testing," he said. "I know it has really stepped up. I would put us second to no one. That is my opinion from what I've seen."

Commissioner Anthony Marnell III told Lundval that they have already been able to adopt and change policy and asked why they couldn't do it again?

"Where does the jurisdictional issue really lie if we just wanted to move a substance on the WADA list from in-competition ban to now moving it into the out-of-competition ban? " he asked.

"We've already been able to do that. We've been able to pick which ones we want to define and when we want to define them and when we can and cannot act on them. So, why are we not allowed to move them, or redefine what they mean?"

Lundval was making it clear that she feels the commission's best interest is to protect itself going forward from any legal ramifications before changing any policy in regards to the adopted WADA banned substance list and "out-of-competition" policy.

"Let me play devil's advocate and recognize that this is not my personal opinion," Lundval said.

"What I am trying to do is work within the confines of what I understand our statue is and what it is trying to do. Our statute identifies our jurisdiction as being over all contests or exhibitions of unarmed combat. It's not over sports. It's not over athletes. It's not over licensees. It's over contests or exhibitions of unarmed combat.

"There are other substances, let's use the one that is at issue: cocaine. It is a stimulant that has a short-term limitation as far as on the body that medical personnel will tell you that that athlete that has used it out-of-competition as defined by WADA does not bring any unfair advantage to the competition, to the contest, to the exhibition for which we have jurisdiction."

Lundval was saying that more or less the commission should err to the side of caution, because the commission's responsibility is over what goes on with athletes during competition, not over athlete's recreational activity, whether it involves drugs or not.

Marnell interrupted her and said, "Does it bring him an unfair advantage and threaten his health and safety? And I would argue that it does," he said.

Again, Lundval explained the need to be cautious.

"What I don't want to do is to give someone an opportunity to challenge us at some point in the future," she said. "That is why I think that looking at this, investigating it and properly wordsmithing this, or legalizing this in some fashion or another, it can give us the type of protection we need."

So, to sum it up, after 20 painstaking minutes of back and forth: Aguilar is searching for answers, Lundval is concerned about legal blowback against the NSAC, Avanino thinks they should look into some stuff, Brady says they're doing great and Marnell thinks the change is something the NSAC should "pursue aggressively."

No decisions were made, nor were any actual ideas for how to change the current policy aside from forming a committee to discuss the matter further and at a later date.

Aguilar put a bow on the topic before moving on to item number 16.

"So the sense I'm getting is we want to understand where we are with the WADA code, what our jurisdiction abilities are, discuss where we want to deviate from that code if we want to deviate from it, and also look at do we need to update our policies? " he said.

"Do we need to update our thinking as commissioners when it comes to drug testing. And finally the penalty phase: Is what we are doing in our process accomplishing in what we are intending to accomplish for unarmed combat.

"So with that I think we would like to move forward with a committee. We will develop the contents of that committee over the next time and hopefully for the next meeting we can come forward with a plan, a time frame and composition of that group."

The sense I'm getting is that they have no idea what they are doing or planning to do, or if it is at all possible for all of the commissioners to get on the same page. Looks like the WADA policy and banned substance list for athletes "out-of-competition" that the NSAC adopted won't be changing anytime soon.