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Riding the Wave: A Swimmer's Fight to Live above Water Tygart’s point: Kicker was guilty of negligence because he did not have the Super Complete tested before he took it. Tygart was prepared to go through all 32 e-mails and press releases issued by USADA warning athletes of the contamination risk from consuming unregulated substances. This time Kicker said, yes, he had received the information. When asked why he had chosen to consume Super Complete, he replied: My roommate told me that if I took it, I would swim faster. Tygart displayed the Ultimate Nutrition website on an overhead projector. Tygart displayed the Ultimate Nutrition website on an overhead projector. Ultimate Nutrition was promoting pro-hormones. On the main page was a picture of a bodybuilder. Tygart told Kicker that he should have foreseen the possibility of cross-contamination of hormones in Ultimate Nutrition’s products. Kicker knew his swimming career was over. He sat outside, waiting for Jacobs, when Tygart, a fierce enemy in the courtroom, approached. They both would recall what he said: “Kicker, I just want you to know how hard it was for us to prosecute you. I hope you can help others learn from this experience.” A few days later, Jacobs confirmed what Kicker had been anticipating. The CAS panel had ruled to uphold the suspension. Its official ruling said: “The respondent had the opportunity to test the supplements he used. He chose not to do so. While this does not manifest in itself an intention to use a prohibited substance, the failure to test his supplements, particularly when coupled with the numerous warnings sent to him or as to which he was put on notice, amount to a lack of compliance on his part that obviate a reduction of the suspension under the applicable rules.” Nonetheless, Kicker’s suspension was reduced from four years to two. That was because FINA had decided, apart from his case, to issue suspensions in accordance with the provisions of the World Anti-Doping Agency. The maximum WADA suspension for doping was two years. But a two-year suspension meant he would still miss the 2004 Olympic trials. Later that evening, Kicker would recall, he sat at his dining room table eating dinner with his roommates. He stared outside into the darkness. All at once, a shadowy figure appeared. “Who’s that? Oh, shit, it’s Beth.” He met his fiancée at the door and wrapped his arms around her. The next afternoon, he took her to Nova. Saying goodbye to his teammates was an unforgettable experience. “I pretty much found out yesterday that my swimming career is over,” he told them. “The arbitrators didn’t feel that there was enough evidence to give me the kind of leniency I was hoping for.” Tears welled in his eyes. Salo put an arm around him. “They can take swimming away from me,” Kicker went on, “but they can never take away the relationships that I have made here as a part of this group. I wish you guys the best. Go make that Olympic team!” Beth wept. Several teammates shook his hand and said goodbye. Jason Lezak, his training partner, hugged him. Salo was the last to approach. “So I hear you’re thinking about moving to Tucson?” “You know, Dave, I’m a done man. I can’t swim anymore.” “I want you here. You’re a part of this group whether you’re going to be in the Olympic trials or not. There are very few people that put a smile on my face when they come through that door because I know they’re going to give 100%. You’re one. I always know that you’ll work as hard as you possibly can.” “Dave, I’m tired. I don’t think I can do this anymore.” “I just want you to know that you’re always welcome here. If you decide to come back, you can always train with us. The door will always be open.” Two months later, Kicker moved to Tucson. He had missed the Olympic trials, but now he had a new goal – proving his innocence. Jacobs filed a legal complaint against Ultimate Nutrition in January 2005. While Kicker waited for his day in court, 16 months of disappointment peaked in Long Beach during the week of July 7-14. The Olympic trials. Kicker attended to cheer Beth on. She was attempting to qualify one more time. But he didn’t feel welcome. USA Swimming refused to give him a deck pass because he was “banned from swimming.” Throughout the week, Kicker sat in the bleachers with Beth’s parents. He looked across the pool at his former teammates. On Sunday, July 11, he watched the men’s 100-meter freestyle final. It was the moment he had trained so hard for. He was overcome with anxiety. He felt dazed. The following year was a struggle. The passion that had defined him was gone. At one point, Beth would recall, he told her: It doesn’t really matter what you do in life, because you’re going to get screwed in the long run. I don’t know why you want to marry me. I’m nothing but a loser who works at She gave him the speech she had gotten from her parents when she was a 15-year-old Olympic gold medalist: Swimming is not the only thing that you’re good at. You have character, integrity, charisma and charm. None of that is affected by whether or not you make an Olympic team. On April 28, 2005, Kicker Vencill walked into Orange County Superior Court in Santa Ana. He was determined. He had been called a liar, a cheater and a doper. A Google search for his name produced an endless list of articles linking his suspension to steroids. He wasn’t going to allow Ultimate Nutrition to tarnish his integrity and his family name. He knew only one way to reclaim his reputation: by legal verdict. Kicker’s opponent turned out to be much like him. Brian Rubino, the vice president of Ultimate Nutrition, was a fresh-faced 25-year-old. He had just graduated from college. Rubino had recently inherited control of the company from his father. Like Kicker Vencill, he was also determined. He didn’t want the reputation of the company that his father had founded to be tainted with a guilty verdict. Ultimate Nutrition was liable, said Kicker’s attorney, Howard Jacobs, because its website guaranteed the purity of its products – but the company had neglected to follow the proper guidelines to ensure that the guarantee was valid. He cited a website statement saying: “Ultimate Nutrition uses only the purest ingredients to produce sports nutritional supplements with quality that never waivers. [sic] From container to container, Ultimate Nutrition’s product line boasts a consistency other companies can only dream about. You can be sure that what you see on the label is what you will get. That’s the Ultimate Nutrition promise.” On Kicker’s behalf, Dr. Tim Robert of the Aegis laboratory testified that what was on a label of Todd E. Croutch, the attorney for Ultimate Nutrition, called to the stand Dr. Roger Clemons from the University of Southern California to discredit Robert’s accusation. According to Jacobs, Clemons testified that at the level of norandrostenedione Robert claimed to have detected, Kicker would have had to consume more than 900 capsules of Super Complete in a day to yield 4 ng/ml of NA-19 in a urine sample. Jacobs, in turn, called on Dr. Catlin, whose UCLA Olympic Analytical Laboratory had tested Kicker’s urine. According to Jacobs, Catlin repeated what he had told the CAS hearing: “The level of contamination found in the Super Complete capsules was consistent with the 4 nanogram concentration level of Kicker’s positive urine sample.” Then Jacobs hammered the point home. He called Tygart to the stand to testify that CAS recognized Kicker Vencill’s positive drug test to be the result of Super Complete’s contamination. The attorneys turned to damages. Croutch said Kicker wasn’t entitled to any because he didn’t swim fast enough to make the Olympic team. For his part, Jacobs would remember thinking that a verdict could yield anywhere from $25,000 to To show what an overwhelming experience it had been, she recalled standing on the pool deck in front of 17,000 people wearing a pair of headphones. But she said she couldn’t hear the music playing through her Discman. All she could hear, she said, was the rhythmic chant of the crowd: “USA! USA! USA!” Watching her testify was agonizing for Kicker. The most excruciating part was seeing the pain of someone he loved. Beth said the tragedy wasn’t that Kicker had been robbed of his own Olympic experience, but that he would never know whether he would have qualified for the opportunity. (conclusion on page 4) |
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