LAS VEGAS -- UFC light heavyweight Wanderlei Silva has filed a motion to dismiss the disciplinary complaint against him by the Nevada State Athletic Commission.
Silva, 38, was scheduled to appear at an NSAC disciplinary hearing on Tuesday, but was absent due to the filed motion. The NSAC tabled the matter for a later date.
The disciplinary complaint stems from an incident on May 24, in which Silva refused to take a random enhanced drug test ordered by the NSAC in Las Vegas. At that time, Silva was scheduled to fight Chael Sonnen at UFC 175 on July 5.
On June 17, Silva admitted to the NSAC he refused the test because he knew he had diuretics in his system, which are listed as a banned substance. Silva said he was using diuretics at the time as anti-inflammatories for a pre-existing wrist injury.
In a motion to dismiss the disciplinary action, received by the Nevada Office of the Attorney General on Aug. 15 and obtained by ESPN.com, Silva and his lawyer, Ross C. Goodman, have challenged the NSAC's jurisdiction over the matter, as Silva was technically an unlicensed athlete on May 24.
"Specifically, the NSAC can only take disciplinary action against a licensed unarmed combatant," the motion states.
"It is abundantly clear that the NSAC lacks jurisdiction to take disciplinary action over Mr. Silva, a non-licensee, for not submitting to testing that the NSAC had no authority to order."
Goodman expects a response from the Nevada Office of the Attorney General by the end of the week. Even though Silva was scheduled for a fight in Las Vegas when the NSAC ordered its test, which implies his intent to apply for a license, Goodman doesn't feel it's enough to place him under NSAC jurisdiction.
"If you look at the rules, it's very clear that in order to be an unarmed combatant, you have to be licensed before the commission," Goodman told ESPN.com. "You can argue (that he intended to apply), but for an administration to take action against somebody, you have to have jurisdiction.
"The purpose of (this motion) is to say, you can't lawfully discipline somebody who is not licensed before you."
A similar situation occurred in 2012, when UFC heavyweight Alistair Overeem failed an unannounced pre-fight test ahead of a scheduled title fight at UFC 146. Overeem was not licensed at the time of the failed test. The NSAC voted to deny him a license and essentially suspended him, denying him the ability to re-apply for a license in Nevada for nine months.
According to independent sample collector Jim Guernsey, the NSAC attempted to collect blood and urine tests from Silva at his Las Vegas residence and gym on May 24.
Guernsey reached Silva at his gym that afternoon. At that point, after learning what Guernsey was there for, Silva snuck out a back exit of the facility. During the June hearing, Silva admitted to the details as described by Guernsey.