By Martin Maloney

Arbitration and Reducing a Suspension Under the No Fault/No Significant Fault Tests

In 2014, Major League Baseball (“MLB”) and the MLB Players Association (the “MLBPA”) agreed to a joint drug prevention program aimed at strengthening the detection and enforcement against players’ use of prohibited recreational and performance-enhancing drugs (“PEDs”).[1] As part of the agreement, MLB incorporated a “no fault/no significant fault” tests, whereby an arbitration panel may vacate a player’s mandatory suspension for testing positive to the use of banned substances if the player can demonstrate that “the presence of the Prohibited Substance in his test result was not due to his fault or negligence,” or reduce the length of the suspension if the player can provide “clear and convincing evidence that he bears no significant fault or negligence.”[2] For instance, Raul Mondesi Jr.’s eighty-game suspension for a first time violation of MLB’s drug policy in 2016 was reduced to fifty-games after Mondesi was able to demonstrate that his positive test of a banned substance was inadvertent and the result of taking an over-the-counter cold and flu medicine he had bought while in the Dominican Republic.[3]

MLB’s no fault/no significant fault tests are reflective of the same standards administered in many professional individual-performer sports under the auspices of the World Anti-Doping Agency (“WADA”) and countries’ corresponding agencies such as the United States Anti-Doping Agency (“USADA”).[4] Pursuant to WADA, an individual athlete must “ensure that no Prohibited Substance enters his or her body,” and are responsible for any such substances found.[5] An athlete may appeal a governing body’s decision to suspend them in response to a “positive test,” but only in exceptional circumstances will a presiding arbitrator or arbitration panel (CAS and/or AAA in the U.S.) eliminate the duration of an individual athlete’s suspension imposed by the respective sport’s international and national governing bodies if the athlete can establish that they bore no fault or negligence in taking a banned substance.[6] Alternatively, a suspension’s duration may be reduced by up to fifty percent of the original duration if the athlete can establish by a balance of probability that they bore no significant fault or negligence.[7]

The ‘Exceptional Circumstances’ Involving Locking Lips

Although it is exceedingly rare for an athlete to be able to establish that they bore zero fault or negligence in testing positive for a banned substance under WADA’s Code, Professional U.S. Track & Field athlete Gil Roberts became the most recent to meet this burden by positing a “frequent and passionate” kissing defense.[8] Months after winning gold at the 2016 Rio Olympics, Roberts tested positive for the drug probenecid, a prohibited substance used by athletes as a masking agent to inhibit the detection of PEDs when drug tested.[9] On appeal of his provisional two-year suspension for a first time offense out of competition, Roberts alleged that he was without fault because he had unintentionally—and indirectly—ingested a finite amount of probenecid after vigorously kissing his girlfriend.[10] Specifically, Roberts contested that his girlfriend visited a “local chemist” after becoming sick while on vacation in India and was given capsules that she broke apart on her tongue to ingest because she had a hard time swallowing them.[11] She continued to ingest the medicine after returning to the U.S., and did so hours before kissing and “chill[ing] out” with Roberts on the day he tested positive for probenecid.[12]

In determining that Roberts met his burden of proof that he was without fault or negligence, the arbitration panel postulated that “it must have been like lightning out of a clear blue sky for [Roberts] to learn that by kissing his girlfriend this time that he was exposing himself to a prohibited substance.”[13] Here, the panel cited its consistency with two analogous—and equally entertaining—decisions involving “kissing defenses” where the respective arbitration panels determined that the individual athletes were without fault or negligence.[14] In ITF v. Richard Gasque, a professional tennis player tested positive for metabolites of cocaine in his urine samples the day after he had allegedly spent a night kissing and sharing a bottle of vodka with a woman he had previously never met.[15] Similarly, in In re Barber, a professional pole vaulter tested positive for metabolites of cocaine the day after kissing a woman he met via the website Craigslist.[16] In both Gasque and Barber, the panels primarily relied upon evidence provided by the athletes that they had never ingested cocaine before or previously tested positive, and that the women they kissed consumed cocaine without their knowledge prior to meeting them.[17]

Here, the panel noted that Roberts had never previously tested positive for any banned substance, let alone cocaine.[18] Further, there was sufficient scientific evidence that probenecid binds to protein, thereby allowing the substance to bind to the girlfriend’s tongue, gums and tooth enamel for several hours after being consumed.[19]  Moreover, the panel noted that, in comparison to the athletes in Gasque and Barber, Roberts’s actions were “benign” because he had kissed his girlfriend of two years, rather than a stranger he had just met.[20] Consequently, the arbitration panel determined that Roberts had sufficiently demonstrated how the probenecid “entered his system and that he was without fault.”[21]

Legal Implications of the Kissing Defense

The arbitration panel’s holding in Roberts to find him without fault marks the third time lightning has supposedly struck out of a “clear blue sky.” Consequently, it is unclear whether the decision in Roberts strengthens the notion that the “kissing defense” provides a safe harbor of sorts for professional athletes who ingest prohibited substances as the result of locking lips with another person, or whether athletes—after three recent cases—are effectively on notice to be more careful of who they kiss—or, at the very least, who they meet on Craigslist. Because CAS decisions are not required to rely upon precedent or exclusively rely upon a particular body of governing law, the next “kissing defense” controversy is likely to be as uncertain and intriguing as the previous three.

[1] Joint Drug Prevention and Treatment Program (“MLB JDA”), MLB, available at http://www.mlbplayers.com/pdf9/5450924.pdf (last visited Sept. 30, 2017); Matthew J. Mitten et al., Sports Law and Regulations 516 (4th ed. 2017).

[2] Joint Drug Prevention and Treatment Program, supra note 1, at 8(B)(3)-(4) (“A Player cannot satisfy his burden by merely denying that he intentionally used a Prohibited Substance; the player must provide objective evidence in support of his denial.”).

[3] MLB generally does not make transcripts or records of arbitration hearings regarding prohibited substances publicly available, and thus it is not clear whether an arbitration panel decided to reduce the suspension, or MLB and the MLBPA agreed to a reduced suspension outside of arbitration. Jeffrey Flanagan, Mondesi Suspended 50 Games for PEDs, MLB (May 10, 2016), http://m.mlb.com/news/article/177333380/royals-raul-mondesi-suspended-for-peds/.

[4] See generally, WADA Anti-Doping Code, art. 10.3-.7 (Jan. 1, 2015); Athlete Reference Guide to the 2015 World Anti-Doping Code, WADA 3, available at https://www.wada-ama.org/sites/default/files/resources/files/wada-reference-guide-to-2015-code.pdf (last visited Sept. 30, 2017).

[5] World Anti-Doping Code, art.  2.1.1 (“A[] . . . violation is committed under this Article without regard to an Athlete’s Fault. [Rule 2.1.1] has been referred to in various CAS decisions as ‘Strict Liability’ . . . and has consistently been upheld by CAS.”).

[6] Id. at 10.4 (notwithstanding therapeutic exemptions, procedural defects or contamination, establishing that athlete did not know or suspect, and could not have reasonably known or suspected with the exercise of utmost caution, that they used the banned substance); Mitten, supra note 1, at 316.

[7] Id. at 10.5 (defining no significant fault or negligence as minimal when viewed in the totality of circumstances and taking into account the criteria defining 10.4 and 10.5); Id. at 3.1 (defining and placing the burden of proof upon the athlete “to rebut a presumption or establish specified facts or circumstances”).

[8]  USADA v. Roberts, AAA No. 01-17-0003-4443 (July 12, 2017) available at https://www.usada.org/wp-content/uploads/07_12_17-Gil-Roberts-AAA-FinalAward.pdf; Arbitrator Overturns Gil Robert’s Drug Ban After Springer’s Kissing Defense, ESPN (July 15, 2017), http://www.espn.com/olympics/story/_/id/20059315/arbitrator-overturns-gil-roberts-drug-ban.

[9] Roberts, 01-17-0003-4443 at 1-2.

[10] Id. at 3-4 (“Whenever they were together, they kissed frequently and passionately.”).

[11] Id. (internal quotations omitted).

[12] Id. at 4.

[13] Id. at 25

[14] Id. at 21-22 (citing ITF v. Gasque, CAS 2009/A.1926; In re Barber, SDRCC DT 16-0249 (Aug. 11, 2016)).

[15] Gasque, CAS 2009/A.1926.

[16] Roberts, 01-17-0003-4443 at 21-22 (citing Barber, SDRCC DT 16-0249).

[17] Id.

[18] Id.

[19] Id. at 20-21.

[20] Id. at 23-24.

[21] Id. at 25.