The NBA on Thursday suspended Phoenix Suns center Deandre Ayton for 25 games due to the 7’1" center testing positive for a banned diuretic.
A diuretic, as explained by the Mayo Clinic, is sometimes referred to as a “water pill.” A diuretic can provide legitimate medical uses. One is to reduce blood pressure by facilitating the release of sodium into urine and increasing the rate of urine. Athletes, however, sometimes use diuretics to conceal cheating. To that end, diuretics have been used as masking agents to obscure the presence of steroids and performance-enhancing drugs (SPEDs) in an athlete’s urine. They have also been used to effect rapid weight loss. Those types of practices have occurred for decades in competitive sports. The International Olympic Committee’s World Anti-Doping Agency includes diuretics on its list of banned substances.
The NBA has not revealed which diuretic was detected in Ayton’s urine. This confidentiality is consistent with the NBA and National Basketball Players’ Association’s collectively bargained drug testing policy. The policy is detailed in Article XXXIII of the CBA. It prohibits 24 named diuretics, as well as nearly 200 SPEDs. Per the policy, the NBA is not allowed to disclose the identity of the diuretic absent agreement by the NBPA or disclosure by the player or an authorized representative (in contrast, if Ayton had tested positive for a SPED, the substance would be publicly named, per the same policy).
The NBA’s drug policy also specifies punishments. The first time a player tests positive for a SPED or diuretic he automatically faces a 25-game suspension. This is a substantial punishment: it reflects approximately 31% of the regular season. Here, such a suspension will cost Ayton $2.17 million, not to mention deprive the Suns of their starting center and, after guard Devin Booker, their top player. There are still other consequences for Ayton. His positive test ensures that he’s now in the NBA’s SPED Program, which will require him to provide various health care materials to the SPED Medical Director and be subject to additional testing. Should Ayton, 21, test positive a second time during his NBA career, he would face an automatic 55-game suspension; a third offense would warrant a two-year ban from the league.
Companies endorsed by Ayton will take notice of the drug result
It’s possible that companies with whom Ayton has signed endorsement deals could review their options to suspend or void those deals. Endorsement deals almost always contain “morals clauses.” These clauses empower endorsed companies to cut ties with a player—and not pay him or her—if the player engages in controversial conduct. Under an ordinary morals clause, a positive drug test would authorize (though not compel) the voidance of an endorsement deal.
Last year, Ayton signed a four-year, multimillion-dollar sneaker deal with Puma. Don’t expect Puma to renege on its commitment. Ayton is one of the NBA’s most promising young players. The former Arizona Wildcats star was the number one overall pick in the 2018 NBA Draft. He averaged 16 points and 10 rebounds a game during his rookie season. Ayton projects to have a long and successful NBA career. While a drug suspension is a professional setback and a source of some embarrassment, Ayton should be able to overcome it.
To mitigate the reputational fallout, Ayton has already apologized to his family, the Suns, teammates and fans. In a statement, Ayton expresses that he is “extremely disappointed” to have let his team down.
Puma, meanwhile, is attempting to carve out space in the competitive marketplace of athletic footwear endorsements. The company has signed several young players, including the first two picks from the 2018 NBA Draft (Ayton and Sacramento Kings forward Marvin Bagley III). It will surely stand by Ayton, who would be of immediate interest to Puma’s rivals should he become available.
Legal strategy for Ayton and the NBPA to appeal the suspension
The NBPA, on Ayton’s behalf, will challenge the 25-game suspension. Article XXXIII contains a detailed procedure for advancing an appeal. The appeal will be heard by a grievance arbitrator, who is neutral and independent. Under Article XXXIII, a player must prove by a “clear and convincing evidence that he bears no significant fault or negligence” for the presence of a prohibited diuretic in his system.
Ayton will need evidence that shows not only that he didn’t know or suspect he was ingesting a diuretic, but that he could not have reasonably known or suspected. Ayton’s apology explained his likely strategy. He stresses “that this was an unintentional mistake and unfortunately I put something in my body that I was completely unaware of.”
To be clear, Ayton will need to show more than a lack of intent to ingest a diuretic or unawareness that he was ingesting one. Proving that he made an innocent mistake will not, by itself, lead to a successful appeal. As mentioned above, Ayton must also prove that he could not have reasonably known or suspected.
Ayton will thus need to detail what he consumed and prove that the food, supplements and drinks he ingested would not have motivated an ordinary NBA player in that situation to check the ingredients before consumption. The more unusual and unsuspcecting the circumstances for Ayton’s consumption the more compelling legal argument he can raise.
The “clear and convincing” standard is a high one. In a civil lawsuit, a plaintiff must prove by a “preponderance of the evidence,” meaning more likely than not or anything more than 50% certainty. Although “clear and convincing” can’t be quantified, it is appreciably higher than “preponderance of the evidence.” This means Ayton will need to thoroughly convince the arbitrator.
The NBPA will advocate for Ayton not only for his sake but also for the sake of precedent. The union wants to ensure that players who test positive due to an (allegedly) understandable mistake should not suffer the same consequence as players who deliberately or recklessly consume foods and drinks that contain prohibited substances. This goes to the heart of Article XXXIII allowing a player and the NBPA to argue that there was neither significant fault nor negligence by the player.
If the arbitrator rules for Ayton, the arbitrator would either reduce the suspension from 25-games to a smaller number of games or rescind the suspension outright. A reduction would be more likely than a rescindment.
Ayton joins a tiny group of NBA players on an ignominious list
Fewer than one percent of NBA players have tested positive SPEDs or diuretics. In fact, over the last dozen years, only nine players have tested positive for SPEDs. Brooklyn Nets forward Wilson Chandler, who in August was suspended 25 games after testing positive for Ipamorelin, is the most recent. No player had tested positive for diuretics until Ayton.
The scarcity of positive SPED and diuretic test results does not appear to be caused by an infrequency of testing. NBA players can be randomly tested (meaning no advance notice) as many as six times during the year. An independent, third-party testing company determines which players are tested and when, meaning neither the NBA nor the NBPA plays any role. Should there be reasonable suspicion that a player is using a prohibited substance, he can be subjected to additional tests.
There are suspicions that the rarity of NBA players testing positive reflects “microdosing.” This refers to a player ingesting a small enough amount of a prohibited substance that it leaves the body quickly and thus goes undetected in a urine test. The amount, however, is still large enough to provide some degree of competitive advantage. Those suspicions have not been proven.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.