BATON ROUGE, La. — The NCAA has denied an appeal to overturn a two-year suspension of LSU football player Kristian Fulton, who got caught and admitted to cheating on a drug test. "We will pursue a waiver to get him on the field. That starts tomorrow. That is still a possibility. Candidly, this is extremely disappointing. They made the wrong decision," Fulton' attorney Don Jackson said.
Fulton, who came to Baton Rouge as a five-star cornerback out of New Orleans, will remain ineligible for the 2018 football season after an NCAA appeals committee on Thursday chose not to lift the two-year ban that it implemented more than 18 months ago. Fulton substituted another person’s urine for his own during an NCAA drug test in February 2017 and missed last season while serving the first year of the two-year ban, a harsh penalty that his parents have been fighting for a year. Sports Illustrated detailed the report in a story published in June.
The NCAA denied the appeal despite LSU’s support of Fulton during this last-ditch appeal, which was led by Fulton family attorney Don Jackson. In a letter to the NCAA appeals committee obtained by Sports Illustrated, LSU “requested immediate eligibility” for Fulton in citing a mishandling of the player’s drug sample. More importantly, the school acknowledges that it did not educate Fulton on the two-year penalty for tampering with a drug sample. In fact, LSU has updated its substance abuse policy to include details of the punishment, according to documents.
The ruling is a significant loss on the field for the Tigers, but one for which coach Ed Orgeron and staff have been prepared. Orgeron brought in former Stanford cornerback Terrence Alexander this offseason to help fill the gaping hole left by the departure of Donte Jackson, a second-round pick in the 2018 NFL draft by the Panthers. Fulton emerged from New Orleans’s Archbishop Rummel High as the nation’s No. 1 cornerback in the 2016 recruiting class, and many around the program saw him as an immediate starter if he were to be granted the appeal. He will serve out the second year of his suspension in 2018 and then have two years of eligibility remaining starting in 2019.
Sports Illustrated has obtained documents that outline a change implemented this past year to LSU’s penalty structure for substance abuse. The school’s new policy allows for an extra failed test before penalties are handed out. A player can now fail three tests, not two, before a fourth positive results in a 10% loss of competition (in football, one game). The new addition to the structure is termed a “first term enrollee” test, presumably for all new players.
Another change was made, too: If a player goes four consecutive months without a negative test, he’s allowed to expunge one previous positive test on his cumulative career record. In the previous policy, a player needed to be drug-free for six months to expunge an old positive test. The rest of LSU’s drug testing penalty policy remained the same: a fifth positive costs a player 50% of competition, and a sixth is a potential dismissal, pending an appeal. It’s unclear whether these two changes are directly related to Fulton’s case.
LSU is not the only program adjusting its drug testing penalty structure. Georgia revised its policy last year, making it more lenient on offenders, and similar measures have been taken elsewhere as recreational drugs become more accepted in society.
Thursday’s hearing took place on campus through a conference call between the NCAA appeals committee and Jackson, Kristian Fulton, LSU attorney Bob Barton and LSU administrator Miriam Segar. Fulton’s case is unusual in that he eventually passed the very test in which he attempted to cheat, supplying the testing administrator with his own urine sample immediately after being caught. Then an 18-year-old freshman, Fulton was under the impression that the NCAA test was for recreational drugs. The NCAA only tested for performance-enhancing drugs. Fulton’s urine was found to have a small trace of THC, the active ingredient in marijuana responsible for most of the drug’s psychological effects. No PEDs were found. Still, the NCAA slapped him with a suspension that many in college football feel is overly harsh and needs to be changed.
MLB, the NBA and the NFL consider cheating on a drug test as a positive test that carries a penalty for such an act. MLB has the most severe punishment, with a half-season (80-game) suspension for a first failed test. The NFL’s is a six-game suspension, or 37.5% of the regular season.
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, said 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 to 200 return positive, Wilfert says. That numbers includes those who tested positive, did not appear for testing and tampered at testing. Of the 25 to 30 drug-testing appeals filed each year, roughly 10% are granted, depending on the year.
Jackson, the Alabama-based attorney representing the Fulton family who’s spent a year working the case, got the NCAA to reopen the case after an LSU-led appeal last spring failed. He drafted what’s referred to as a “reconsideration,” 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 new evidence that helped prompt a reopening of Fulton’s case was a toxicology analysis from The Forensic Panel, a forensic science practice based in New York. Sports Illustrated obtained a copy of the analysis, in which 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.
In a letter Fulton wrote last spring urging the NCAA to overturn the suspension, Fulton expressed regret for his decision, calling it “horrible” and claiming he “panicked” because he was not aware of the stiff punishment for attempting to cheat.
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. LSU has honored Fulton’s scholarship over the last 18 months, and he continued to attend workouts, meetings and other team-related functions.