By Dr. Andy Pittman and Sarah Brown
Facts: On March 24, 2017, Gil Roberts, a track and field Olympic gold medalist, was tested out-of-competition. On April 14, 2017, United States Anti-Doping Agency (USADA) advised Roberts that he tested positive for probenecid, a Specified Substance in the class of Diuretics and Masking Agents on the World Anti-Doping Agency (WADA) prohibited list. Roberts had been subject to doping control since 2008. In 2009 when he turned professional, he was placed intermittently in the Registered Testing Pool. He had been tested 15 times since 2008 without any adverse findings until now.
Upon notice of the positive test, Roberts withdrew from the International Association of Athletics Federations (IAAF) World Relays. After Roberts B sample also tested positive for probenecid, he tendered a signed provisional suspension form to USADA, but requested time to analyze his supplements. The arbitration was stayed for 30 days. Five days after the stay was granted, Roberts’ counsel informed USADA that the banned substance entered his body from kissing his girlfriend, Alex Salazar. Roberts had been dating her for two years prior to his March 24 drug test. While on a trip to India with her family, she developed a sinus infection and was given medicine in capsule form labeled Moxylong which contained probenecid. She began taking the medication on March 14 and was still taking the medication on the date of the drug test. Salazar took the medicine by opening the capsule and emptying the contents directly into her mouth. Roberts stated he was not aware of, and did not witness Salazar taking a prohibited substance. On the day of the test, they engaged in an extensive amount of passionate kissing.
The Banned Substances Control Group (BSCG) tested one of Salazar’s capsules and discovered that the capsule contained .442 grams of probenecid.
Roberts’ Argument: Roberts argued that he either had no fault under Article 10.4 of the World Anti-Doping Code or no significant fault or negligence under Article 10.5 of the Code.
Dr. Kintz, Roberts’ Expert: Interpreting the adverse findings, Dr. Kintz opined it was more than likely that the probenecid originated from Roberts kissing his girlfriend. Dr. Kintz supported this theory with the fact the small amount of probenecid found in Roberts’ urine would be ineffective for masking banned substances and if Roberts had intentionally consumed the banned substance, the amount found in the sample would have been greater. Additionally, Dr. Kintz claimed that probenecid could contaminate Salazar’s mouth by binding to the cheek, teeth, and gums, particularly since she poured the capsules contents into her mouth and therefore transferred remaining residue to Roberts while kissing.
Dr. Fedoruk, USADA’s Expert: Dr. Fedoruk explained probenecid is a banned substance in any amount. Additionally, he argued it was highly unlikely Roberts would have ingested a significant amount of probenecid from his girlfriend’s saliva in the three hours before his drug test, to result in the positive finding. Dr. Fedoruk admitted that probenecid could bind to Salazar’s mouth, but questioned how the substance would move from Salazar’s mouth to Roberts. Lastly, he claimed that the small amount of probenecid in the sample could be a result from Roberts taking a larger dose earlier rather than a small dose before the test.
Arbitrator’s Decision: The arbitrator determined that Roberts proved a balance of the probabilities that he was without fault in ingesting probenecid. The arbitrator based this decision on the fact that Roberts had never tested positive for over a decade, the amount of the substance was too small to have a masking effect, and there was no indication of another banned substance in his sample.
A final award was signed on July 10, 2017.
What Does the Future Hold?
This was the third recent kissing case in which athletes were found to be without fault. (see ITF v. Richard Gasque and The Matter of An-Anti-Doping Violation by Shawn Barber) In both prior cases the athletes tested positive for cocaine after promiscuous nights with newly acquainted women. In all cases, the athletes established they did not know or suspect, and could not reasonably have known or suspected even with the exercise of utmost caution, that they had been administered a prohibited substance or otherwise violated an anti-doping rule. In addition, all three were able to establish a plausible cause for how the prohibited substance entered their system.
In the future, athletes would do well to be cautious when engaging in romantic relationships immediately prior to drug testing and must be aware of the possibility of suspensions due to their behavior.
Dr. Andy Pittman, Clinical Associate Professor, Texas A&M University.
Sarah Brown, BS Penn State University, JD Marquette University Law School, current sport management doctoral student at Texas A&M University.
