- Is a two-year ban from NCAA competition too severe a punishment for one poor decision? That question is at the heart of the unusual case of LSU cornerback Kristian Fulton.
NEW ORLEANS, La. — The $300 plane ticket Michelle and Keith Fulton bought their youngest son in December went unused.
No form of convincing could get Kristian Fulton on that jet, bound for Orlando, Fla., to attend LSU’s Citrus Bowl game against Notre Dame. Even a pre-purchased, non-refundable boarding pass did not sway Kristian from something he’s sworn off attending: LSU football games.
“He doesn’t go to games,” says Michelle Fulton, Kristian’s mother, who on this random June Wednesday is seated in her living room in the family’s modest New Orleans home. “It’s too hard for him.”
Kristian Fulton, entering his third year as an LSU cornerback, is suffering through one of the most unusual and severe penalties the NCAA doles out to an individual. In a wave of panic, Fulton attempted to use another person’s urine as his own during an NCAA drug test in February 2017.
He got caught and is paying dearly. The NCAA punishment for tampering or attempting to tamper during a drug test is a two-year ban from participating in college football games.
It is somewhat of a wrecking ball, the Fultons contend, to the career of what was one of the country’s most talented prep players. Fulton emerged from a New Orleans high school as an Under Armour All-American and the nation’s No. 1 cornerback in the 2016 recruiting class—a blue chip prospect who, even his father revealed, planned to be playing in the NFL by 2019.
Kristian Fulton’s emotionally charged boycott of LSU games has resulted in his father and he spending fall Saturdays laying in Kristian’s bed at his Baton Rouge apartment, the LSU Tigers—his team—playing on the television before them.
“Hard?!” Kristian’s father, Keith, says. “Hard is not the word. It’s been tough, tough on me, my family, tough on him. A lot of people think he was on steroids. That’s not the truth.”
The Fultons are fighting back against the NCAA, exposing what many refer to as a “harsh” penalty for a misconceived decision of a then 18-year-old college freshman. Equipped with new evidence and a high profile attorney, the Fultons this week will file a last-ditch appeal with the NCAA in an effort to get their son eligible for the 2018 season.
Don Jackson, an Alabama-based attorney representing the Fulton family who’s spent a year working the case, has drafted what’s referred to as a “reconsideration.” Jackson is petitioning the NCAA to reopen the case, arguing on three fronts: (1) the absence of due process in the drug-testing appeals structure, (2) the lack of drug-testing education given to Fulton and (3) presenting new evidence that calls into question the credibility of the drug-testing procedure.
The latter might be his strongest point.
That new evidence is a toxicology analysis from The Forensic Panel, a forensic science practice based in New York. Sports Illustrated obtained a copy of the analysis. The Forensic Panel found that the NCAA’s testing procedure in the Fulton case lacked a “valid chain of custody,” legal jargon that refers to the transferring of physical evidence, in this case, a drug sample.
Will it be enough to sway an NCAA appeal committee? If not, Jackson said, a lawsuit is a “very realistic possibility.”
Seventeen months into this 24-month ordeal, Michelle Fulton is holding out hope on a positive outcome.
“I’m hoping they’re going to come back and say ‘Time served!’” she says.
The rarity and severity of this NCAA policy makes this case unusual, but the results of Fulton’s own urine sample push it farther toward the extraordinary. After ditching efforts to use the outside urine, Fulton provided his own sample to the testing administrator. It returned from a UCLA laboratory clean of any performance-enhancing drugs.
He passed the test—the very same test at which he attempted to cheat.
“He thought the test tested for marijuana, too,” Keith Fulton said. “He had smoked (marijuana) two days before.”
According to NCAA policy, an athlete involved in a case of “clearly observed tampering” with a drug test is banned from competition for 730 days, or two full calendar years—whether his own sample is positive or not. And, so, marches on the curious case of Kristian Fulton, one of the most unique NCAA cases to be made public.
LSU denied a request to make Fulton available for an interview for this story, and school administrators declined to comment on the matter. Meanwhile, Sports Illustrated obtained more than 15 pages in documents regarding Fulton’s case, including lab results, witness testimony from the test site and a 600-word letter Fulton wrote last spring urging the NCAA to overturn the suspension.
In his letter, Fulton expresses regret for his decision, calling it “horrible” and claiming he “panicked” because he was not aware of the stiff punishment for attempting to cheat.
Documents detail the event on Feb. 2, 2017 at LSU’s Broussard Hall. The test administer, Jason Shoemake, noticed Fulton pouring the contents of a small bottle into the beaker the player was expected to fill with his own sample. When approached, Fulton poured the contents of the beaker into a urinal and began to fill the beaker with his own urine sample.
“I understand that my poor decision has a consequence, but because the urine was not actually used or submitted to the tester, I would like to appeal the decision of a two-year ban from competition,” Fulton wrote in the appeal.
Fulton’s situation shines a spotlight on NCAA drug testing and its penalty structure. The severity of its penalties for performance-enhancing drugs exceeds even professional sports leagues, especially with regard to tampering.
MLB, the NBA and NFL consider cheating on a drug test as a positive test, an act that carries a penalty. MLB is the most severe, with a half-season (80-game) suspension for a first failed test. The NFL is a six-game suspension or 37.5% of the regular season.
In the NCAA, a first failed PED test carries a one-year suspension. And cheating? Double it.
“Why wouldn’t it just be an automatic failure—one year (suspension)?” asks Ramogi Huma, the founder and president of the College Athletes Players Association and a former UCLA football player who has led the college athletes’ rights movement for more than 15 years. “It’s just this iron fist rule to destroy a kid’s career. He wasn’t on steroids. (One year) would be more reasonable.”
The NCAA strengthened its penalty structure on tampering in 2012 from one similar to professional leagues—a one-year ban. The NCAA Committee on Competitive Safeguards and Medical Aspects of Sports made that decision because its members believed cheating “should be sanctioned more seriously” than a positive test, says Mary Wilfert, the NCAA associate director of prevention and health promotion.
Wilfert says cases of tampering on a drug test are “minimal” and “infrequent,” but the NCAA cannot provide a number of such cases specifically. Of the 12,500 random drug tests administered annually, about 150–200 return positive, Wilfert says. That numbers includes those who tested positive, did not appear for testing and tampered at testing.
Jackson says he’s unable to find a case of the NCAA suspending an athlete for tampering with a two-year penalty. Wilfert confirms it has happened, but NCAA officials are not permitted to release details on individual cases.
How rare is it? Six major college football coaches told Sports Illustrated over the past two weeks that they had never heard of such a penalty levied against an athlete.
Some were altogether shocked by the story, including Tim Nevius, a former NCAA enforcement officer who now leads a New York-based law practice that represents college athletes on a full-time basis.
“Wow, I have not heard of that,” said Nevius, who worked for the NCAA from 2007–12. “There seems to be mitigating circumstances. Without knowing all the facts, it’s a shame this young man has to sacrifice two years despite the fact he had a clean test. It just seems wrong.”
Nevius and Huma both compared Fulton’s case to one from nearly a decade ago involving Oklahoma State receiver Dez Bryant and NFL star Deion Sanders. In October of 2009, the NCAA ruled Bryant ineligible for the remainder of his junior season for failing to disclose to enforcement officers an interaction with Sanders.
Fearing he had committed an NCAA violation, Bryant lied about having lunch and jogging at Sanders’s home earlier that summer. The NCAA later ruled that the interaction did not violate NCAA rule.
Bryant’s suspension—for lying about a non-violation—stood after an Oklahoma State appeal.
“There’s been a number of instances where an athlete is being questioned in an investigation,” Nevius said, “and they decide to lie and often times the penalty for lying is greater than the information they held.”
Fulton isn’t completely clean. His parents and lawyer admit to that.
While his urine returned clear of PEDs during that February 2017 test, his sample was found to have 5.4 nanograms per milliliter of Tetrahydrocannabinol, or THC, the active ingredient in marijuana responsible for most of the drug’s psychological effects.
Fulton’s sample was 0.4 ng/ml above the NCAA’s THC threshold of 5 ng/ml at the time of that test. However, the NCAA’s THC threshold has already changed within the last year, increasing to 15 ng/ml, the same as LSU’s school threshold. Since his initial test 17 months ago, LSU has tested Fulton 30 times, Jackson said. In just one of those tests, in April of this year, did he register a THC count (7 ng/ml).
LSU has honored Fulton’s scholarship, and he continues to attend workouts, meetings and other team-related functions. He’s on pace to graduate in May, his father says, and he’s even spent time training outside of the LSU facility with former Tiger defensive back and NFL Pro Bowler Ryan Clark.
Fulton, whose brother Keith Jr. is a walk-on running back at LSU, briefly thought about a move to junior college, his father says, but he decided to remain in Baton Rouge.
“He wants to prove everybody wrong,” Keith Fulton says, “show why he was ranked where he was out of high school.”
Fulton picked off 17 passes his final two seasons at Archbishop Rummel, a 650-student Catholic high school in the New Orleans suburb of Metairie. He ran track at Rummel, too, excelling in the hurdles and playing guard on the basketball team.
At Rummel, Fulton’s name still carries weight. He’s described as a quiet, humble kid who worked hard at his many crafts and had no off-the-field issues, said Rummel coach Jay Roth.
Fulton’s predicament at LSU is somewhat of a kept secret on campus. He returned in May for the team’s spring game, smiling and laughing with coaches and players as if everything was O.K.
“Nobody asked questions,” Roth said, “but you know, usually a kid would quit and move on if he were in his position. When the time for football comes again—this August or next—he’s going to be ready. He’s going to be the college football player and eventually the NFL player we all thought he’d be.”
At worst, Fulton will have two years of eligibility remaining starting in 2019. He burned a year by playing in just three games as a freshman in 2016, a fractured right ring finger midway through the season holding him back. He used 2017, the first year of his suspension, as a redshirt. He’ll burn 2018 if the case is not reopened.
“A lot of kids would have cut and run,” Keith Fulton says LSU cornerbacks coach Corey Raymond told him recently in a phone conversation.
“He’s not normal. He’s different,” Keith Fulton says of his son. “If anyone can rebound from it, he can and he will. He’s built different.”
Reopening the case won’t be easy. Nevius calls it an “uphill battle.”
The NCAA’s appeals process is at the heart of the reconsideration, Jackson says.
A first round of appeals, coordinated by LSU, was denied last spring. Jackson argues that appeals process did not allow for enough time to mount supportive arguments. A request for an appeal must be made within five business days of the positive test, and all documents pertaining to the appeal must be submitted within 45 days.
“The most troubling issue here is the absence of due process and this entire testing and appeals situation,” Jackson said. “Real due process requires a student athlete to have an opportunity to contest that before sanctions are imposed.”
According to the NCAA’s manual of a drug-testing appeals process, appeals can be granted if the committee believes that the institution was “inadequate” in educating the athlete. In this case, appeals members agreed that LSU supplied enough educational material to Fulton, but that’s not stopping some—Jackson included—from questioning the school’s drug education program. The attorney plans to use it in the latest appeal.
“In this case, the player should not have been kept in the dark for what the NCAA is testing for,” Huma says. “I highly doubt this player made this choice had he understood why the NCAA was there for.”
As part of Fulton’s appeal last spring, the university provided to Drug Free Sport—the private company that handles NCAA drug testing—extensive documentation of its drug education program, according to documents SI obtained. Also, in his appeal letter to the NCAA, Fulton says LSU officials educated him properly on drug tests and banned substances. Jackson argues that officials were not specific enough in outlining the penalties for tampering.
Either way, Huma and other advocates don’t necessarily point the finger at the schools. They blame the NCAA’s litany of rules.
“The NCAA has to realize its rule book is over 400 pages,” Huma said. “Schools hire interpreters for the NCAA rulebook it is so big. How’s an 18-year-old supposed to get it?”
NCAA appeals are not often won, Wilfert says. Of the 25–30 drug-testing appeals annually, only about 1–3 are granted, depending on the year. Educational materials are not provided at test sites, Wilfert says, but at least one school administrator is present. Packets of information are delivered each summer to member schools about new, updated drug-testing procedures and banned substances.
So why did Fulton not know the details of the test 17 months ago?
“He listened to an upperclassman instead of going to his coach,” Michelle Fulton explained. “He panicked.”
For the Fultons, one of the most difficult parts of this ordeal is social media. The lack of explanation last year from LSU coaches and administrators resulted in a swirl of rumors, many of them accusing Fulton of failing a performance-enhancing drug test.
The attacks on Twitter began.
“Some of them were real ugly,” Michelle Fulton says.
Keith Fulton gave his son advice on the critics hurling insults his way: “Leave them to me.”
For now, Keith and his family have no control over the next move in this case. The ball, so to speak, is with the NCAA. One of its former employees believes the governing body should give it a second look.
“That is a harsh penalty,” Nevius says. “For a system that constantly has a paternal instinct, in this situation that seems to be missing. Why are we punishing them so harshly at a time in their life when they’re still maturing?”