As MMAjunkie.com first reported in May, Diaz (12-5 MMA, 7-3 UFC) is expected to fight Davis (17-6 MMA, 8-3 UFC) at UFC 118 on Aug. 28 in Boston, though fallout from the melee cast doubt on his ability to be licensed for the fight. This past weekend UFC president Dana White said that he would honor any suspension issued by the TAC as a result of the incident.
In the article Cesar Gracie states that he doesn't believe the TAC has the right to fine Diaz (or suspend him) because Diaz was not licensed by the TAC on the night of the brawl. According to the article, however, Gracie stated that "the TAC believes he acted as 'a second' (cornerman) to Strikeforce middleweight champion Jake Shields, who just prior to the brawl defeated Dan Henderson in the event's headliner."
There is some support for the TAC position that it can fine those "required to have a license" -- in addition to those who have a license --in the relevant TAC Rules as I posted about here, but ultimately the relevant statutes and rules are ambiguous. Ultimately, however, it is probably not worth the fight (and the distraction) and I think Nate Diaz is probably wise to pay the fine and enter into the consent order so that he can move on and focus on more important things, like his upcoming fight.
Here is my previous post if you want the analysis:
The question is, can the TAC exercise authority to assess fines against an individual who was not licensed by the TAC?
The answer is that, as is often the case with statutory and regulatory interpretation, the relevant provisions are ambiguous and it is not entirely clear.
At the outset, it is clear from the Tennessee Athletic Commission Act of 2008, Title 68 Chapter 115 of the Tennessee Code, and the TAC's implementing Rules, Chapter 0145-04 of the Rules of Tennessee Athletic Commission, that the TAC has the authority to assess fines (on top of suspensions) against any person licensed by the Commission.
Specifically, the TAC Act of 2008 provides in relevant part as follows:
(a) If disciplinary action is taken against a person by the commission pursuant to this chapter based on the conduct of the person that either directly or indirectly relates to a professional contest of unarmed combat, the commission may, in lieu of or in addition to revoking or suspending a license or permit issued to the person, impose a penalty not to exceed two hundred fifty thousand dollars ($250,000).
Under this language, the beginning of the sentence is certainly broad enough to cover a non-licensed individual as it applies to any "person" directly or indirectly involved in a professional contest of unarmed combat. However, the second part of the sentence (between the commas), by stating that the commission may "in lieu of or in addition to revoking or suspending a license or permit," could at least arguably be interpreted to mean that the "person" must have a permit or license in order to be assessed a fine under the final part of the sentence.
Alternatively, you could read the language between the commas as merely clarifying that for those persons in the first part of the sentence that do have a permit or license, the fine in the final part of the sentence can be added on or assessed even if no suspension is handed down. In other words, the "in lieu of" language can be read as only clarifying how the fine provision applies in the event that the "person" in the first part of the sentence is also licensed.
The TAC Rules (remember the Rules are promulgated under the Code and, therefore, cannot conflict with or exceed the scope of authority granted under the Code) provide in relevant part as follows:
(1) The Commission may, in a lawful proceeding with respect to any person licensed or required to be licensed, in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty for a violation of a statute, rule or order, enforceable by the Commission, in accordance with the following schedule...
I do not see any additional information about what "required to be licensed" means, but if a non-licensed individual was acting as a second or a manager -- despite not being licensed as such, theoretically he would be "required to be licensed" and subject to a fine under this Rule. Perhaps the TAC would argue that by being in the ring after a fight, a license is "required."
The questions that remain, however, are (1) under the Code, does the TAC have the right to assess a fine against a non-licensed person, i.e. how should the language between the commas be read; and (2) assuming "required to be licensed" is within the authority of the TAC under the Code (point 1 above), was the non-licensed individual acting in a capacity that "required" a license.
I reached out to Jeffrey Mullen, Director of the TAC, to ask for his position concerning the source of the TAC's authority to assess a fine against an individual who was not licensed and how the fines are enforced. He referred me to Christopher Garrett, Director of Communications of the Department of Commerce & Insurance.
Mr. Garrett responded as follows:
Tennessee Code Annotated 56-1-308 (a) states, 'With respect to any person required to be licensed, permitted, or authorized by any board, commission or agency attached to the division of regulatory boards, each respective board, commission or agency may assess a civil penalty against the person in an amount not to exceed one thousand dollars ($1,000) for each separate violation of a statute, rule or order pertaining to the board, commission or agency. …'
The Athletic Commission is attached to the Tennessee Department of Commerce and Insurance, Division of Regulatory Boards.
Additionally, T.C.A. § 68-115-204(a) states '.... No person shall participate, directly or indirectly, in any professional contest of unarmed combat unless the person has first applied for and received a license from the commission." T.C.A. § 68-115-209(a) states, 'The commission may, in accordance with the Uniform Administrative Procedures Act, ... suspend or revoke the license of any person issued pursuant to this chapter who:…(10) Has violated any provision of this act, any rule duly promulgated hereunder, ...' T.C.A. § 68-115-216(a) says, 'If disciplinary action is taken against a person by the commission pursuant to this chapter based on the conduct of such person which either directly or indirectly relates to a professional contest of unarmed combat, the commission may, in lieu of or in addition to revoking or suspending a license or permit issued to the person, impose a penalty not to exceed two hundred fifty thousand dollars ($250,000)." [emphasis supplied by Mr. Garrett]
The disciplinary actions will be handled internally by the Commission. If there is an appeal of the Commission's final decision, the appeal would be by writ of certiorari to the Davidson County Chancery Court. At that point, the Tennessee Attorney General's Office would likely get involved.
Despite Mr. Garrett's email, I think there is still ambiguity here under the relevant provisions I analyzed above. His reference to 56-1-308 expands the civil penalty authority of the Commission to persons "authorized" by the TAC (on top of "permitted" or "licensed"), but this provision should be trumped in any fair analysis by the more specific Tennessee Athletic Commission Act of 2008 addressed in my analysis that provides for a penalty up to $250,000.
Further, even if 56-1-308 applies, it is still unclear if the non-licensed person at the Strikeforce brawl was "authorized," whatever that means. Finally, because this provision only authorizes a $1,000 penalty (as opposed the $250,000 maximum in the 2008 Act) and because (according to the Sherdog article) a penalty in excess of $1,000 is being assessed, I don't think the TAC is relying on 56-1-308.
Fight Lawyer
