By Shawn Schatzle, Esq., of Havkins, Rosenfeld, Ritzert & Varriale, LLP
It was October 31, 2004. Wanderlei “The Axe Murderer” Silva, the PRIDE middleweight champion, knocked out challenger Quinton “Rampage” Jackson with a barrage of knees to the head in front of 24,028 fans at the Saitama Super Arena in Japan. He quickly ascended the ropes and let out a guttural scream in celebration. The finish came at three minutes and 26 seconds into the third round. With the victory, Silva had extended his unbeaten streak to a remarkable 18 straight fights. As one of the most popular athletes in mixed martial arts, “The Axe Murderer” was on top of the world.
He would eventually lose his championship belt to former Olympic wrestler Dan Henderson at the PRIDE 34 event held on February 24, 2007. In total, Silva’s title reign lasted for over six years, an almost unheard length of time to hold a major championship in a sport that involves so many different ways to lose. PRIDE would only hold one more event before being bought out by and effectively absorbed into the current top promotion in mixed martial arts, the Ultimate Fighting Championship (“UFC”). Silva’s UFC return — he had fought in the promotion on three occasions before becoming a champion in PRIDE — would ultimately come against former champion Chuck “The Iceman” Liddell in December 2007 in one of the most heavily anticipated bouts in mixed martial arts history. He would lose a close decision in an exciting, back-and-forth bout that would be deemed “Fight of the Year” by numerous media outlets. Although Silva would never regain his championship form, he continued to be a popular figure and headliner throughout his UFC tenure.
There is perhaps no better example of Silva’s enduring popularity than his March 2013 UFC bout with “The All American” Brian Stann, which occurred at the site of so many of Silva’s greatest moments, the Saitama Super Arena. Stann was a decorated United States Marine. He was awarded the Silver Star after leading a platoon of soldiers that were ambushed by insurgents in Iraq for six straight days. Based in part on strategic decisions made by Stann, all forty-two soldiers under his command survived the assault. He then entered mixed martial arts, where he earned a reputation as a heavy-hitting knockout artist and quickly gained popularity. Based on Stann’s military career and exciting fighting style, one might expect that he would have been the fan favorite against Silva. However, the majority of the mixed martial arts fan base was supporting Silva in the bout, which ultimately ended via knockout with less than a minute left in the second round. “The Axe Murderer” had once again earned a highlight reel-finish in front of the Japanese fans.
And then came May 2014. Silva was scheduled to fight former middleweight and light-heavyweight contender Chael Sonnen in a highly anticipated bout at UFC 175, which was scheduled to be held in Las Vegas in July of 2014. However, the Brazilian was pulled from the fight after a refusal to undergo a random drug test at the request of the Nevada State Athletic Commission (“NSAC”). A representative of the NSAC arrived at Silva’s gym in order to conduct a random blood and urine test. After learning of the drug test, Silva escaped out of a back door and left the gym. The UFC subsequently learned of this and immediately pulled “The Axe Murderer” from the bout with Sonnen, who subsequently tested positive for performance enhancing drugs (“PEDs”) and was suspended before ultimately retiring from the sport completely.
The NSAC was not pleased with Silva’s decision to flee the scene of a random drug test. During a disciplinary hearing in June of 2014, “The Axe Murdered” attempted to explain himself by saying that he had been taking a diuretic and wanted to avoid a positive test. Although diuretics are not technically performance enhancing in their own right, their use is banned in the NSAC’s guidelines as PED users can utilize diuretics in an attempt to flush illegal substances out of their system.
Silva’s attorney argued that the NSAC did not have jurisdiction over him at the time of the test as he had not been officially licensed for the UFC 175 bout, and therefore the NSAC had no legal authority to punish him for refusing to take the test. This argument was largely based on two statutes — NRS 467.110 and NAC 467.922(1) — both of which conferred authority on the NSAC to institute disciplinary actions against those persons licensed to fight in Nevada. Silva’s attorney essentially argued that, despite the fact that “The Axe Murderer” had signed a contract to fight Sonnen at UFC 175 and was already being advertised for the event, he had not been formally licensed by the NSAC. The NSAC, therefore, did not have jurisdiction over Silva, the reasoning went, and could not render any form of punishment against him.
At a September 2014 hearing before the NSAC, this jurisdictional argument was rejected. The commissioners reasoned that Silva was subject to the NSAC’s authority the moment he agreed to participate in a bout in Nevada. The mixed martial arts legend then received an unprecedented lifetime ban from competing in Nevada, as well as a $70,000 fine. The severity of the punishment was shocking, as a lifetime ban in Nevada essentially equates to a lifetime ban from fighting in North America as most athletic commissions on the continent honor the decisions of other commissions. The UFC also will not promote a fighter who is under suspension by any commissioner, meaning that Silva’s UFC contract prevented him from fighting for any other promotion yet his suspension prevented him from being promoted in a bout for the UFC.
To place things in perspective, athletes who tested positive for steroids or other PEDs in Nevada in 2014 typically received suspensions of nine months to a year if it was their first offense. Silva, who may have exercised poor judgment in running from the test, had not actually tested positive yet was issued a lifetime ban. It appeared to many that the NSAC was making an example out of him. Practically overnight, he went from beloved fighter and a legend in his sport to an outcast.
Following his suspension, and after a public dispute, it became clear that the UFC’s relationship with Silva had deteriorated. He was ultimately released from his contract.
Silva, through his attorney, appealed the NSAC’s decision in Nevada District Court. He again set forth the jurisdictional argument, while also asserting that the NSAC’s punishment, even if it did have jurisdiction, was arbitrary and capricious and therefore subject to vacatur.
On May 15, 2015, over two years after Silva’s bout against Stann, Judge Kerry L. Earley ruled that the NSAC possessed jurisdiction over Silva at the time of the attempted drug test. However, with regard to the extent of the punishment, Judge Earley was required to determine whether the NSAC’s decision was an “arbitrary or capricious abuse of discretion.” Law Offices of Barry Levinson, P.C. v. Milko, 124 Nev. 355, 184 P.3d 378 (Sup. Ct. Nev. 2008). In noting that the record before her was “replete with the [NSAC’s] own concerns that the sanction [was] indeed arbitrary and not supported by any type of sentencing guidelines or within standard norms,” Judge Healey determined that both the lifetime ban and the $70,000 fine were arbitrary and capricious. She then ordered the matter remanded to the NSAC for a re-hearing on the appropriate punishment to be imposed.
Silva was ultimately granted a re-hearing in February 2016. The NSAC retracted the $70,000 fine it had levied against “The Axe Murderer,” reasoning that since he failed to actually fight at UFC 175, the athletic commission had no right to impose a monetary fine. More importantly, Silva’s lifetime ban was reduced to a three-year suspension retroactive to May 2014, giving the former PRIDE champion the right to return to active competition in the spring of 2017. He will be almost 41 years old.
Subsequent to the re-hearing, Silva signed a contract with the number two mixed martial arts promotion in the world, Bellator MMA. Like the UFC, Bellator MMA typically does not promote fighters who are under suspension with a state athletic commission. The company will likely not announce a bout for Silva until his suspension is over, or at least is near its end. “The Axe Murderer” has also signed a contract with Rizin MMA, a Japanese promotion that has a working relationship with Bellator MMA. His first bout for Rizin MMA will not be in a mixed martial arts contest, but instead in a “special grappling tag match” where he will team up with a yet-to-be announced fighter against Kazushi Sakuraba, a former opponent, and Hideo Tokoro. It is unclear if Rizin MMA will attempt to promote Silva in a mixed martial arts bout during the pendency of his suspension.
Silva’s story is a cautionary tale for fighters: it is never a good idea to run from a drug test. Cooperating with the athletic commissions is generally preferable to the alternative. Even if an athletic commission steps beyond its legal boundaries, the time, money and effort necessary to overturn an arbitrary and capricious decision is an extraordinary burden. Fighters have a relatively short window of time to maximize their earnings potential, which can be reduced significantly by fighting an athletic commission in court to overturn a suspension when they would rather be fighting trained combatants in a cage. The risks of consuming banned substances outweigh the possible benefits, and running from a drug test should never be an option. Just ask Wanderlei Silva.
