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March 11, 2022 Feature

The Business Buds: How the Booming Marijuana Industry is Potting Seeds in Professional Sports Enterprises

By Jake Kelinson

Marijuana’s transitioning ideologies within sports policy regulations are headed in a common direction. However, due to the rapidly expanding marijuana industry, there is still an abundance of lingering stigma and negative connotation surrounding its use. Thus, this Note will grapple with the societal stigma, reputation, and federal law holding back professional sports enterprises across America. It will analyze the legal recreational marijuana system in Canada, as it directly trickles into the NHL. In turn, this Note will address the “Big Four” sports CBA’s and how each league handles marijuana use. It will exemplify each leagues’ trending initiatives towards marijuana leniency. Additionally, it will analyze “PEDs” and “controlled substances” concerning marijuana use in professional athletes. It will feature numerous individual athletes who are leading the nation-wide reform. Then, it will explore the complexities of marijuana and professional sports sponsorships and endorsements. This Note will conclude with an evidence-based future for progressive marijuana policy standards across all American professional sports enterprises.

I. Introduction

Marijuana and professional sports have collided head-on in recent years. Nowadays, most business enterprises and professional sports leagues conduct testing for banned substances on employees/athletes for a number of substantive reasons. Corporate behavior and social responsibility often directly emulate maximized profitability, reputation, and respect. 1 For years, many large corporations have pointed to marijuana, and the associated stigmas, to be “damaging to their image.”2 In comparison, professional sports leagues must apply a similar evaluation on the basis of player success and health, fan livelihood, league integrity/respect, and profitability. This widely renowned entity of marijuana has allured the press, ravaged headlines, and caused controversy across all industries. Although, within the past few years, many professional sports leagues and their athletes seem to be “ditching old policies” and quickly evolving.3

In pertinent part, marijuana or “marihuana” refers to parts of the Cannabis sativa L. plant with substantial amounts of tetrahydrocannabinol (“THC”).4 Public support of marijuana has risen significantly across the globe, while aged negative stigmas have been greatly eroded.5 However, there is still room for progressive change throughout the country. Historically, anecdotal medicines and therapeutics were the backbone of marijuana’s early use.6 Dating back to 440 B.C.E, cannabis steam baths were common for pain reduction.7 In addition, it was used to treat conditions like inflammation, depression, nausea, malaria, and gout.8 Similarly, some early cultures used marijuana and its psychoactive component for religious ceremonies and/or rituals.9

Over 500 years ago, marijuana was brought to the North American continent by the Spanish.10 Since then, the United States (“U.S.”) federal government has remained nearly concrete in its prohibition, regulation, and application of marijuana.11 With national prohibition having plagued America for the past century, it has not been until recent years that pro-marijuana “philosophies” have caught fire.12 Accordingly, a few individual states have legalized recreational and/or medicinal marijuana and it is rapidly expanding through individual state legislatures.13 Most recently, Canada is leading the charge in its legalization of recreational marijuana across its entire country.14 In conjunction, the modernization of marijuana has been tethered through all sectors of business enterprises in America.15 Professional sports, one of the most lucrative and prominent industries in modern day, has seen its own slew of marijuana obstacles.16

The “Big Four” professional sports leagues, National Hockey League (“NHL”), National Basketball Association (“NBA”), National Football League (“NFL”), and Major League Baseball (“MLB”), have all taken a different approach to the modernization of marijuana and the other cannabinoid derivatives.17 All of these leagues have been deeply rooted in American culture for decades, while all being structurally and legally similar. Further, Canada’s leading initiatives have leaked into the NHL’s marijuana leniencies.18 The NHL was the first to adopt a progressive approach. Marijuana use in the NHL is no longer “predicated on punishment”.19 While over the last several decades, most professional sports leagues and individual teams too often punished their athletes for marijuana use.20

The respective collective bargaining agreements (“CBA’s”) of these professional enterprises are where these policies are negotiated and ratified.21 The three other major sports enterprises, as well as other smaller leagues, have sparingly distinguished and adapted themselves in terms of marijuana regulation.22 Some leagues punish for marijuana use, some turn their heads, while others treat. Correspondingly, many professional athletes have used marijuana as an effective substitute to the common prescription opioid painkillers, which are often abused.23 Also, it is not unequivocally clear if marijuana and the cannabinoid derivates are distinctive from the merely objective “performance enhancing substances/drugs” (“PEDs”).24 Leagues differ as to what constitutes a PED, but overall the “Big Four” do not vary substantially.25 Yet, there still is a complexity of potential issues between law, policy, and stigma that this Note will analyze.

II. The Influential Canadian Model

In October of 2018, Canada became the largest and widely renowned country in the world to entirely legalize recreational marijuana.26 Uruguay was the only other country to legalize recreational marijuana to date.27 Under the Cannabis Act or Bill C-45, adults are allowed to “buy, use, possess and grow recreational marijuana, under the law.”28 The Canadian government outlined three goals in their progressive regulation: the reduction of criminal activity associated with the illegal “black” market; the protection of the youth, and the protection of the public health.29 The legalization was backed by ample evidence that “illegal marijuana” did not halt its consumption, but in turn prompted an underground illicit black market.30 These black markets, which are tethered through American cities too, are proven to stimulate criminality and gang involvement.31

Since its legalization through the Cannabis Act in 2018, Canada continues to rollout smooth operations of success without any catastrophes.32 Canadian government officials have remained adamant on a comprehensive plan to demolish the black market, which the US would assumptively want to emulate.33 Additionally, Canada has sealed all prior drug convictions and have “attempted” to alleviate some underlying marijuana stigma.34 They have also put together a federal task force to attack issues as soon as they arise.35

Decisively, Canada has been able to roll out their legalization legislation without major issues or disasters. The U.S. will have to address many other components, such as a national banking and federal taxing system, if federal legalization is passed.36 In essence, Canada’s progressiveness in marijuana legalization, on such a large scale and so close to homelands, will undoubtedly serve as a successful model blue-print for the U.S. But, diminishing the stigma many attach to marijuana has been a challenge in every corner of the globe.

a. Reducing Stigma

Although, prior to Canada’s promulgation, there was an abundance of backlash and lingering stigmas towards marijuana. In America, these stigmatizations are similar, yet distinctive from Canada. According to the Civilized 2019 Cannabis Culture Poll, ironically marijuana stigmas have been much more prevalent in Canada than America, before and after their legalization.37 Yet, in comparison, the majority of states in America still ban the recreational use of marijuana.38 Most prominently, the use and possession of cannabis remains illegal under U.S. federal law by way of the Controlled Substances Act (“CSA).39 Rebelling against the federal prohibition was first commenced with California in 1996, despite its Schedule 1 categorization.40 Since then, as of 2020, America has grown to 15 states which have legalized recreational marijuana.41 Colorado, acting on its own, kicked off the recreational marijuana “movement” in 2012.42

Moreover, lingering stigmatizations seem to remain weary no matter the governmental mandate. These underlying marijuana beliefs ravaged headlines and spilled into several widely known lawsuits. For example, in Nebraska and Oklahoma v. Colorado, Nebraska and Oklahoma filed suit against Colorado for profoundly disagreeing with the legalization of marijuana and the policy decisions of their neighboring state.43 Clearly, opinions and stigmatizations simply vary across state lines all across the nation. Moreover, Canada didn’t automictically put an end to the longstanding stigmatizations of marijuana by simply legalizing cannabis.44 These aged mindsets towards marijuana are shifting, but some still seem stuck to their roots. According to the same Civilized 2019 Poll, roughly 73% of Americans say they are okay with consuming cannabis “now and then”, compared to 66% of Canadians.45 This directly signifies the modern trends and heightening acceptance for Americans. The poll also declared that Americans are more comfortable to have “a puff” in a business setting or around their boss.46 These findings deem to be leaning to marijuana leniency within American business enterprises, which Canada has already established.

b. Leniency in the NHL

In light of Canadian legalization, large professional enterprises that encompass both the US and Canada have succumb to some marijuana regulatory obstacles. One of the most prominent and historic businesses being the National Hockey League. The NHL is highly idolized throughout Canada, while being home to seven teams.47 The NHL was founded in 1917 and is the second oldest major professional sports enterprise in North America.48 The annual revenue for the NHL is approximately $5 billion dollars, which is made up of local television revenues, concession and ticket sales, and royalties from licensing components.49 It is widely known that the NHL has the largest Canadian contingency of the “Big Four” sports leagues. With that being said, Canadian legalization may have influence and pressed leniency in NHL’s marijuana policies.

During this progressive movement of Canadian legalization in 2018, NHL Alumni Association executive director Glenn Healy stated he is “all-in” in terms of marijuana in the league.50Although alumni don’t regulate policies, this progressive mindset exemplifies the changing ideologies. Emily Kaplan of ESPN offered an excellent hypothetical: A player in the NHL often has a tough time unwinding after he gets home from a hockey game, while he is still ridden with the emotions of the game.51 That day was full of unbounded stimulation, he wakes up and goes to the rink for a morning skate and a team meeting, then naps, before heading to the arena for warm-ups.52 Once at the arena, the loud blasting “EDM” music and rowdy fanbase combust in his eardrum, while bright lights and television cameras discombobulate his vision.53 The puck drops and the player exerts himself for approximately thirty sub-60 second shifts, where he skates, sprints, shoves, shoots, and sometimes scores.54 On occasion he often fights, yells, gets hit, loses teeth, breaks bones, and even bleeds.55

Subsequently, he proceeds home after a physically and emotionally tolling day.56 By the time he gets home, ridden with emotion and body aches, he needs a few “puffs” of marijuana to relax and unwind before going to bed.57 This player is part of a Western Conference team, Colorado Avalanche, where he knows he is not doing anything wrong because thousands of others in his city smoke every night too. Moreover, he plays in the NHL who has relaxed their marijuana policies and he knows he won’t be punished. Beyond the mere Canadian influence, this is one of many potential hypothetical examples behind the NHL’s altering marijuana policies. Since then it has rapidly transformed its overall policy approach on its use. However, this does not mean players are “stoned” while playing the game, but rather using during off-ice leisure time.

Riley Cote, a retired and well-known Philadelphia Flyer’s “enforcer”, suggested players were ahead of the league in understanding the advantages of marijuana.58 He elaborates on this matter as such:

“For pain management, managing stress, performance anxiety and sleep, and 20 other good reasons, teams would be smart to be proactive [on the use of marijuana] and look to it as a tool they can use to support their players… Marijuana is a high-end anti-inflammatory and it can be used as such. We’re trying to calm the central nervous system and promote rest and recovery. That’s why athletes are gravitating towards cannabis or cannabis-based products, whether it’s non-psychoactive cannabinoids [CBD] or even those that contain THC. THC is a healing component as well. What should be taught [to players] is responsible cannabis use.”59

Additionally, Riley Cote had experience in NHL coaching and league management, thus his material understanding on this matter is ample.60 In addition, other NHL players enumerate marijuana as a “gateway to wellness” and a sufficient diversion from abused painkillers, muscle relaxers, anxiety medication, and/or sleeping pills.61

i. Progressive Expansions

It is evident times are changing in the realm of marijuana and professional sports enterprises, but some NHL “old-timers” have voiced concerns. For example “Old School” Don Cherry, of Hockey Night in Canada, stated “You start with marijuana, then you go to cocaine, then you go to heroin.”62 This explicitly depicts the aged stigmas which have been shown to be decreasing as of late. Others voiced unfounded fears of high player salaries and this so called “reefer madness.”63 In addition, athletes and league affiliates remain worried of the fear of stigma, alongside the potential downsides of internal revenue losses.

An anonymous league official stated, “If it doesn’t bite them while they’re playing- it might down the line when they’re looking for a job…It is not something you would necessarily want to include in a cover letter.”64 These notions, which are somewhat modernly baseless, exemplify stigmatizations that are readily decreasing. Nonetheless, in the beginning of the NHL’s advancements, the league released this statement to the press:

[Positive marijuana test] results remain confidential unless a positive test is referred to the players-assistance program. Marijuana is not designated as a performance-enhancing drug, so a positive test result for marijuana does not in itself lead to a suspension.”65

Thus, a player smoking occasionally off-ice has nothing to worry about. A single positive test for marijuana will be confidential and assumptively not punishable.

Correspondingly, SportsNet Canada suggests 60-70% of players in the NHL use marijuana occasionally and most around the league are well aware of it.66 As of the latter part of 2020, 28 of the 31 NHL teams play in a state that has legal access to marijuana, whether its medicinal or recreational.67 Many notable players and league officials deem Canadian legislation as a “stabilizing” component for the marijuana outlook across the globe. Attitudes among NHL players, coaches, and executives alike seem to be reflecting that of Canadian policies. Subsequently, after a convincing push, marijuana policy standards were negotiated and “amended” in the NHL’s CBA between the NHL and the NHL Players Association (“NHLPA”).68 Ridden with Canadian influence, the NHL was the most progressive professional sports league to date.

III. Collective Bargaining Agreement Trends

As of the latter part of 2020, the discussions of marijuana within professional sports enterprises are stronger than ever. Several progressive-minded athletes and league executives have called to remove all cannabinoid derivatives from their respective lists of banned substances.69 In conjunction, many leagues have seen rampant numbers in recent fines and suspensions because of marijuana use from their players.70 Marijuana policy leniency was first notably achieved by the NHL through their CBA negotiations.71 It was the first of the “Big Four” to make this leap and relax a drug-testing policy around THC positives in their players.72

a. The National Hockey League CBA

The NHL collective bargaining agreement outlines that NHL players remain randomly tested throughout the season with an “all drug” screening test.73 However, only if a player’s results show “dangerously high levels” of THC then the league and NHLPA confidentially flags the player for treatment.74 It details that the treatment is predicated on well-being and health, and makes it clear it is not punishment.75 With lack of precision, the “dangerously high levels” threshold leaves a potentially broad and subjective understanding. In essence, marijuana is not an issue unless it becomes a noticeable hinderance to their play. However, this broad regulation may prompt a potential for arbitration in the near future.

With that being said, all professional sports CBAs have mandatory arbitration clauses pursuant to the league and player’s association agreement. Professional athletes waive their right to the general recourse of litigation and agree to a third party arbitrator over discipline/eligibility issues within the league. The third party arbitrator comes in as a neutral party to listen and rule on a dispute. Thus, an arbitrator may soon address this broad threshold surrounding marijuana use in the NHL.

Nonetheless, if the athlete is deemed to meet this broad threshold, then the league refers them to the “NHL Substance Abuse and Behavioral Health Program.”76 It is important to note treatment is not required and even if the player accepts the referral it remains entirely confidential. A senior NHLPA executive, Mathieu Schneider, stated “the thing that we’re really looking for is if there’s a guy that has an issue or a problem and he needs help- that’s what we’re trying to capture in that program…Confidentiality in [the] program is of the utmost importance.”77 At the core, the league wants to support players with addiction, but as of late NHL executives have turned a blind-eye to marijuana. Further, the NHL removed “THC” and “CBD” from the banned substances list that this CBA directly references.78 Although this banned substance list is not readily available for the public, this declaration has been made clear by the NHL and NHLPA.79 Upon speculation, one could assume keeping this list confidential gives the league ultimate discretion on how they handle positive drug tests.

Also, this CBA directly draws a distinction and states that THC is not a performance enhancing drug.80 Although, for example, marijuana use for pain reduction could be interpreted to have a “performance enhancing” and healing effect on an athlete’s amplified performance. But, prescription opioids comparably achieve the same underlying objective, without the “PED” classification. This could be an area of controversy for all of the “Big Four” leagues as they adopt progressive policies.

Still, it is evident the NHL is no longer prohibiting or preventing marijuana consumption, but they are not encouraging it either. TNM News prolifically stated “the NHL found the nexus between player safety, monitoring for illicit drug use, and not condoning illegal drug use.”81 This ratification was imperative for all professional sports enterprises as it took a giant step in a progressive direction.

b. The Major League Baseball CBA

The MLB was the next of the “Big Four” sports enterprises to take a progressive leap. It wasn’t until December of 2019 that their CBA was negotiated and ratified under a new drug policy.82 Original negotiations were heavily driven by the death of Tyler Skaggs, an all-star pitcher for the Los Angeles Angels.83 In 2019, Skaggs was found deceased in a hotel room from an unfortunate drug overdose.84 Sports Illustrated depicts it as “a tragic death tied to the consumption of opioid painkillers.”85 Skaggs had a long list of physical injuries and ailments and was often given opioid painkillers.86 Sadly, these addictive painkillers are vastly abused by professional athletes across many leagues. Cannabinoids are being increasingly used as an alternative and effective method of “treatment” to avoid these treacherous painkillers.

With that said, the MLB’s new policy standards added immense testing for opioids, fentanyl, cocaine, and other illicit drugs.87 These additions were in an effort to better protect players from drug abuse. Nonetheless, most notably, the MLB removed all cannabinoids from the league’s banned substance list.88 ESPN notes “this was not a huge deal for players, who were only previously tested for marijuana if there was reasonable cause.”89 But, this was significant for the MLB’s minor league players, who were frequently tested and faced harsh fines and suspensions.90 A third “strike” of a positive marijuana test resulted in an outrageous automatic lifetime ban from the league.91 Veteran MLBPA agent Joshua Kusnick said, “the way the league had the rules set up- it was ridiculous…I can’t even imagine how many guys’ careers were ruined over marijuana.”92

The MLB affirmed that marijuana consumption would be treated the same as alcohol consumption for their players, regardless of federal prohibition.93 In conjunction, marijuana is not regarded as a PED under the MLB and MLB Players Association.94 Aforementioned in the NHL CBA, this distinction may draw some controversy. Also, similarly to the NHL, players would be flagged for THC on drug screens and referred to a treatment board called the Joint Drug Prevention and Treatment Program.95 The White House Office of National Drug Control Policy even praised the MLB’s policy changes by declaring that it will save the lives of athletes.96 Again, the sole focus of their progressive marijuana policy was player safety, not the aged and stigmatized punishment regimen.

c. The National Football League CBA

After the MLB marijuana changes were revealed, Dallas Cowboys owner Jerry Jones and quarter Tom Brady said in similar interviews that the NFL would likely soon be forced to modernize its marijuana policies.97 Then, in March of 2020, the NFL ultimately addressed their marijuana policy with similar attributes.98 In their new CBA, effective March 15, 2020, players who test positive for solely THC will no longer be suspended. Previously, the NFL guidelines were the most strict to date. Both Josh Gordon and Randy Gregory are the most infamous for their severe suspensions and hefty fines due to multiple positive marijuana tests.99 Josh Gordon, a wide-receiver with record breaking numbers, essentially ruined his career because of the NFL’s marijuana policies. Upon his fifth positive test and fifth suspension, he was “suspended indefinitely without pay for violating the NFL policies on performance-enhancing substances and substances of abuse.”100

In this new ratification, the NFL substantially raised the mark for positive test numbers, from 35 nanograms to 150 nanograms.101 Often times, positive marijuana drug tests are computed through nanograms per milliliter (“ng/mL”).102 In addition, testing will be entirely based in the first 14 days of training camp instead of from April to August.103 By eliminating this previous testing window, it allows NFL players to smoke marijuana during the offseason months if they wish. Mirroring the NHL, the NFL also outlined a medical treatment program, where players will be reviewed by a panel of medical experts if they test positive for marijuana.104 Again, this ascertains the “treatment over punishment” philosophy.

Alongside of the marijuana policy, the new CBA substantially changes the policy on PEDs, with a heavier emphasis on addictive stimulants, diuretics, and steroids.105 It increases PED penalties, but does not disclose the certain substances they deem PED. The lack of precision leaves the league’s PED policy extremely hazy. It is plausible marijuana could be considered a PED under this broad standard, but it remains to be seen.

NFL Players Association executive director DeMaurice Smith stated, “certainly, we see that society is changing its views, but views only change because key facts become more and more obvious to the people who make policy.”106 It is clear league executives and policy makers are even seeing a progressive movement in the modern age of professional sports. The NFLPA first asked to loosen marijuana policies back in 2011 CBA negotiations.107 This 2020 CBA ratification was finally a step in the right direction.108Although their policy is not as noticeably progressive as the NHL and MLB, players are no longer exhausted with the harsh punishments and suspensions for marijuana use.

d. The National Basketball Association CBA

Up until December of 2020, the NBA remained the most punitively strict and stingy in their marijuana regulation. Under their CBA, the very first positive marijuana test mandates a player seeks treatment in a validated program.109 The second rapidly jumps to a $25,000 fine and a multi-game suspension.110 The punishments and fines rapidly climb per the number of failed tests. NBA athletes are subject to four random marijuana specific tests per season.111 Additionally, the CBA explicitly outlines “Marijuana” under a subsection of their “Anti-Drug Program,” which also encompasses diuretics, human growth hormones, steroids, and many others.112 Their CBA even includes a “Marijuana Program,” incorporating a voluntary entry, treatment, and penalty subsections. The threshold of 15 ng/mL of THC is considered a positive marijuana test, while the NFL just raised theirs to 150 ng/ML.113 Clearly, the NBA is far behind in their ideologies substantiated in their CBA’s marijuana initiatives.

But, in December of 2020, NBA Spokesperson Mike Bass stated, “due to the unusual circumstances in conjunction with the pandemic, we have agreed with the NBAPA to suspend random testing for marijuana for the 2020-21 season and focus our random testing program on performance-enhancing products and drugs of abuse.”114 By way of contractual progressive marijuana policies, the NBA is still substantially behind the other three “Big Four” professional leagues.115 With all that being said, in pertinent part, marijuana remains on the NBA’s banned substances list as a part of their CBA.116

However, it is noteworthy, marijuana and other cannabinoids are not listed under their tested PED substances. In 2019 NBA commissioner Adam Silver stated, “[marijuana] is certainly not a performance-enhancing drug.”117 The NBA seems to have made this distinction in terms of PED classifications, but are still overdue in progressive advances. Nonetheless, NBA executives and commissioner Adam Silver seems like they could be persuaded in the near future.118 NBA superstar Kevin Durant recently compared smoking weed to wine after the game, and believes athletes should have access to the plant.119 The NBA Players Association is also pushing for the removal of marijuana from the banned substances list.120 The NBAPA articulated they are leaning heavy on other leagues progressive successes and the overall health and wellbeing of their athletes.121

The NBA’s marijuana policies are extremely outdated, but a significant change in their CBA might not be so far-fetched. This is not the first time the NBA “suspended” marijuana testing. Last season, during the Orlando playoff “bubble,” players were free to use marijuana and they were not tested for it.122 The lingering questions remain over the NBA’s CBA—will the suspension of marijuana testing remain for seasons to come and will marijuana be removed from the list of banned substances?—only time will tell.

e. Abandoning Longstanding Policies

The “Big Four” professional sports enterprises are going in one common direction, no matter their current state of affairs. The NHL gave way for a progressive movement and built the framework of a “liberalized” CBA for years to come. It is apparent marijuana policy negotiations between leagues and player’s associations are all trending in an inspiring and progressive path. The CBA trends are resounding, while negotiations of marijuana leniency are becoming set in stone. It is imperative league executives continue to listen to their athletes in ratifying CBAs for years to come.

IV. Painkillers to Pot

For decades many athletes have turned to opioid medications to treat pain, injuries, and other ailments. It has been proven that these medications are extremely addictive and usually ineffective in long term treatments.123 These painkillers are often over-prescribed by doctors throughout the country, with little to no repercussions.124 Unfortunately, it has become exceedingly common that opioids are being abused and destroying lives. According to Statistics Canada, 11 lives were lost to opioid overdose every day in 2017.125 Since their marijuana legalization, those numbers are declining and many are now seeking these “alternative” regimens for ailments.126 The opioid crisis has devastated people’s lives, destroyed families, ruined sports careers, and caused millions of deaths.127

In a study by the National Academy of Sciences of the United States, it suggested marijuana can substantially help athletes.128 The study determined that endocannabinoids have great potential in offering natural pain relief for sports-related injuries and fatigue.129 Also, it suggested that marijuana contains powerful healing compounds, known as phytocannabinoids, which helps with things like inflammation, pain, headaches, anxiety, healing, and sleep.130 Thus, athletes could indefinitely use cannabinoids to achieve all types of benefits. Research on the topic is rapidly expanding, while some have been buying in. With the Canadian legalization, many are becoming more open to exploring marijuana as a substitute to prescription painkillers.

a. Athlete Initiatives

Athletes are tired of being fed prescription opioids to just numb their slew of ailments. But, unfortunately the stigma attached to marijuana has deterred many from seeking treatment and therapeutics with forms of cannabinoids. In 2018, a class action of over 1,800 retired NFL players filed suit against the NFL.131 Their complaint alleged, “[they] were supplied painkillers in order to keep them on the field—even though players were not informed of the long-term health effects of taking [these] medications.”132

Managing pain with opioid pills has been the common methodology for decades, while stigma lingered over marijuana remedies.

Nonetheless, with marijuana in the mix, it seems like an outstanding segue to a more natural and safe regimen. Dr. Lester Grinspoon, a Harvard Medical School professor, believes the neuroprotective properties of marijuana could make players of all contact sports more CTE-resistant.133 Since the turn of the last decade, all of the “Big Four” have put preventative measures in place to halt defenseless hits to the head. In a letter to NFL Commissioner Roger Goodell, Dr. Grinspoon said, “I think you, and the NFL, must go beyond simply following the medicine, and help lead the way by directly funding research to determine if [marijuana] can indeed provide significant protection against the damage of repetitive concussions.”134

In 2016, the first active NFL player spoke out to advocate for cannabis to treat chronic pain and injuries. Lineman Eugene Monroe, in a New York Times piece, stated “…we have cannabis which is far healthier and less addictive [than opioids], and quite frankly, can be better in managing pain.”135 Moreover, two-time Super Bowl Champ Jim McMahon continues to struggle with severe headaches, vision problems, depression, memory loss, speech problems, and other problems after numerous brutal head injuries.136 McMahon told the Chicago Tribune that “this marijuana has been a godsend, [it] got me off narcotic pain pills… [and] it relieves me of the pain.”137 American Olympic swimming hero, Michael Phelps, even proved to the world that athletes who smoke marijuana can be highly functional in all aspects of life.138 He broke the record for the most medals ever won by an Olympian, yet simultaneously tested positive for marijuana numerous times.139

Tennessee Titans linebacker Derrick Morgan puts it best, “At the foundation of what I’m talking about is player health and safety. If you want to get distracted by the stigma or what not, well that’s on you.”140 While stigmas are still alive, there must be a collective duty to build a basis for health and safety of all professional athletes. Similarly, famous UFC fighters Nick Diaz and Ronda Rousey both have strongly advocated for cannabis use within league policies.141 Although it is outside the “Big Four,” there is a steady progression elsewhere too. Diaz was facing a strict 5 year fighting ban from the UFC for using marijuana during his career.142 Ricky Williams, a long-time NFL player, even went to the extent of saying he wouldn’t of won the 1998 Heisman Trophy or played 11 NFL seasons “if not for pot.”143 For years, Williams was using marijuana to subdue his ailments, and continues to make an effort to normalize cannabis use in sports.144

Unfortunately, the opioid epidemic in professional sports continues, as team doctors continue to provide players with prescription painkillers. In an ESPN survey of 644 former NFL players, 71 percent admitted to misusing them.145 NBA, Golden State Warriors coach, Steve Kerr said, “[players] get handed prescriptions for Vicodin, Oxycontin, Percocet…and I do feel strongly that [marijuana] is a much better option than some of [them].”146 It is evident these painkillers are dangerous and are doing more harm than good. According to the U.S. Department of Health and Human Services, in 2016, 11.5 million people misused prescription opioids and approximately 42,000 people died after overdosing.147 Thus, in turn, there must be a pursued natural alternative like marijuana. In Barbuto v. Advantage Sales & Mktg, the court stated, “under the Massachusetts disability discrimination law, employees have the right to seek a reasonable accommodation for medical marijuana use.148 Clearly, athletes and/or employees should be free to seek marijuana as a healthy substitute to painkillers under a medical marijuana regime.

b. The CBD Alternative

There are also a number of cannabidiol (“CBD”) products. CBD contains less than 0.3% THC on a dry-weight basis and no psychoactive effects.149 It has recently been proven to help athletes with pain management as well.150 CBD comes in different forms such as water, topicals, tinctures, capsules, transdermal patches, sublingual sprays, edibles and others.151 CBD is more widely used and accepted throughout America already. Many can find a slew of CBD therapeutic products in stores across the States.

In 2018, the World Anti-Doping Agency (“WADA”) removed CBD from their banned substances list, and it will no longer result in a positive drug test for professional athletes.152 Since CBD is more readily available and less stigmatized nowadays, many players find it less “risky” as of late.153 According to a 2020 study by Sports Medicine Open, CBD has been proven to exert a number of physiological, biochemical, and psychological effects that have benefits to athletes.154 Undoubtedly, CBD is less stigmatized and has been proven to be highly beneficial to treat athletes with numerous ailments. Another 2020 study by Pharmacological Research, even acknowledged that CBD has the ability to counteract harm from sports-related head injuries.155

Rob Gronkowski, a current NFL tight-end and a CBD advocate, uses it to treat conditions associated with ruthless physical contact of the NFL.156 Correspondingly, as of a February 2021 news report, the NFL seems to be in the fact-finding/investigative stage of “promoting” cannabis products as an alternative to prescription medicine—specifically CBD.157 According to a statement released to the news outlet by the NFL’s Pain Management Commission, they have issued a request for more information on the use of cannabinoids that might be used instead of the highly addictive pills given to players.158

Nonetheless, with stigma lying over marijuana in professional sports, opioid medications unfortunately remain the most common regimen—even when they should not.

c. The Modern Medicine

Prescription opioids are no joke, addiction is rampant, and players are seeking a modern and natural alternative. Martellus Bennett, a long-time NFL tight-end, even said in a Bleacher Report interview, “You don’t want to be popping pills all the time.”159 Team doctors are too often throwing pills on athletes, when the dangers of addiction and overdose are astronomical. Athletes for Care, a non-profit agency advocating for player health and safety, recently released a statement stating, “For people to kind of accept the healing properties of cannabis, [we] really feel like the athletes are going to be the key to remove stigma that’s been there.”160

At the very core, it is time to break the stigma behind these marijuana treatment remedies. The overarching goal must be to substantially decrease opioid use as merely a numbing agent for athletes. Ill-advisedly, prescription opioids are too easily handed to players and they remain the leading routine for athletic pain management. Marijuana offers a safer, and far less addictive, alternative to opioids and painkillers.161 The surplus of natural remedies marijuana brings to the table is bound with success stories, as it is now more clear than ever.

V. Hurdling Marijuana Sponsorships and Endorsements

For decades, professional athletes have been punished for marijuana use and then subsequently lose all their sponsorships. Again, at the forefront, this is substantially just an overarching stigma concern. “While we don’t comment on specifics of any of our athlete partnership agreements — we can confirm that Cynthia is no longer a Body Armor spokesperson and we wish her all the best,” the spokesperson said.162 Referring to MMA fighter Cynthia Calvillo, after she tested positive for marijuana and unfortunately lost her sponsorship with Body Armor.163 Similarly, after Olympian Michael Phelps tested positive for marijuana he lost his Kellogg’s sponsorship.164 Company spokeswoman stated, “Michael’s most recent behavior is not consistent with the image of Kellogg.”165

Largely, these sponsors don’t want the stigmas, potential “damage to their image,” and possible loss of revenue. Most businesses who sponsor athletes seek a positive light under high public exposure. If these marijuana stigmas remain, then sponsorships will continue to plummet. With that said, clearly times are changing and sponsors must adapt as well. Some athletes indicate marijuana is an integral part of their success and sponsors should appreciate and recognize that. One comparable industry is the world of esports and sports betting. Given the recent climate and advancements in sports betting advertisements, professional sports and cannabis aren’t far behind. With that being said, the first professional sports team in the U.S. to take on a marijuana sponsorship was the Las Vegas Lights FC of the United Soccer League.166 Owner of the Lights, Brett Lashbrook, said “there is still a stigma attached to the cannabis industry in mainstream sports America…I hope other teams follow us. They want to do it. They’re just too scared.”167

a. Morals Clauses

Currently, under the morals clauses of the CBAs, all “Big Four” leagues specifically prohibit any sponsorship with a cannabinoid product and/or company.168 The morals clauses included in the respective CBAs, are in place to moderate athletes’ off duty behaviors.169 These clauses also articulate the advertising protocols of their players, while preventing certain advertising contracts between brands and athletes.

Athletic sponsorships and endorsements fundamentally promote the image that businesses wants to promote. They want to align themselves with celebrities and athletes that captivate their brand values.170 Thus, some people would unfortunately shame a professional athlete for wearing a t-shirt with a pot leaf company logo. To date, fundamental progressions need to be made with marijuana stigmas before these mainstream sponsorships—in the “Big Four”—come to fruition.

b. CBD Sponsorships

In most recent news, the Premier Lacrosse League formed a partnership with CBD company, Mendi.171 Likewise, the American Motorcyclist Association (“AMA”) recently amended their CBA to allow “CBD related” sponsorships.172 The AMA posted on a blog stating their progressive policy reflects the shifting stigmas and state laws.173 However, marijuana and/or CBD sponsorships in the “Big Four” seems to be the most distant of all obstacles. There is extreme potential to reap monetary rewards, but these progressive ideologies need more of a backbone.

Contrary to the “Big Four” morals clauses, NFL’s very own Rob Gronkowski, Patrick Mahomes, and Baker Mayfield have all been discreetly endorsed by CBD companies.174 CBD is an already well-established and accepted entity throughout American society. But, if leagues remain silent on CBD sponsorships, it leaves the door open for potential arbitration with the complexities involved. The respective CBAs specifically prohibit all cannabinoid sponsorships/endorsements and CBD is technically a cannabinoid too.

c. Marijuana Sponsorships on the Horizon

This sponsorship and endorsement debacle may not be so far-fetched according to Yahoo Sports.175 Yahoo Sports headline on election day, November 3, 2020, read, “Medical Marijuana Sponsorships Could Become a Reality if Biden-Harris Win.”176 Due to the coronavirus pandemic, the professional sports leagues of the “Big Four” are looking for ways to offset the investments and revenues lost. The Biden-Harris administration has vowed to alter marijuana regulation at the federal level. It is fair to wonder that if Biden-Harris administration reigns, then it will essentially be a spark for the “Big Four” to finally allow some form of marijuana sponsorships.

Michael Neuman of Yahoo Sports proclaims “[the leagues] will still need to make modifications to their respective collective bargaining agreements, because if [marijuana is still stigmatized and] punishable for player use you’re not going to see the leagues trying to monetize it… but [he] anticipates these partnerships will begin within the next five years.”177 In essence, once the stigmas are substantively diminished and/or ultimately accepted, then the sponsorships will start raining in for the “Big Four” leagues. At the forefront of all these decisions is the unfortunate stigma that continues to linger over marijuana use.

VI. Conclusion

Whether it is in the coming months or the coming years—it is clear that marijuana will be entirely accepted by professional sports enterprises across America. Although federal law continues to classify marijuana as a Schedule I drug, many ideologies, regulations, and state laws are rapidly expanding in a progressive direction. It was in the late 90’s when the marijuana trend caught fire and now it is ultimately coming to fruition. This Note has unequivocally presented the monumental progressions within all of the “Big Four” leagues in the past few years. Professional athletes and their respective leagues are buying in to marijuana collectively. It should, and must, be here to stay for years to come.

There is nothing more than negative stigmas and lingering ideologies are holding back widespread progressive action. Former U.S. Attorney General, Jeff Sessions, recently chimed in with a unfounded claim that “good people don’t smoke marijuana.”178 It is without question there is still room for substantial progress, but business enterprises across America have made extensive strides in the right direction. While the marijuana industry continues to expand into every sector of society, there must be a continued effort to eradicate the stigmas. As of the most recent 2020 election, “the cannabis industry cleaned up at the ballot box… with voters in five states passing legalization measures.179 This progressive transformation is increasingly becoming more foreseeable as 36 states have legalized medicinal marijuana and 15 states have completely legalized it in all forms. Just over a decade ago, cannabinoids of all forms were illegal across all 50 states.180

In Spring 2021, Congress introduced a bipartisan STATES Act, which would give the states’ the right to regulate their on marijuana laws without federal intrusion.181 Likewise, House Judiciary Committee Chairman Jerry Nadler and Senator [current Vice President] Kamala Harris have recently introduced a federal marijuana reform bill, MORE Act, which is the most progressive in American history.182 With major developments at the federal and state level lingering, the realm of professional sports and marijuana will continue to be a hot topic recreationally, medically, and within the private sector. On March 1st, 2021, a new bill was introduced in the California state legislature which seeks to prohibit California workplaces from using evidence of past marijuana use, such as that gathered during a urine or hair test, as a reason to deny someone a job.183 This means if an employer gets a positive marijuana test, they cannot use that solely as the reason to not hire them. In short, if passed into law, this will be another issue the professional leagues will have to tackle—especially those teams operating in California or other states that adopt a similar bill.

Law and public ideologies of marijuana are entirely moving in one direction. An Addiction Center survey discovered that 1 in 8 adults in the U.S. are avid marijuana users and approximately 109 million Americans live in areas where it is legalized.184 While, in 1969 only 12% of people supported that marijuana should be made legal, yet current support exceeds 70%.185 Strict marijuana policies in professional sports enterprises are only hurting leagues and their players. Marijuana has been proven to aid in, but not limited to, mental health, physical ailments, and everyday leisurely activities. There is no reason to tightly regulate an enriching entity, like marijuana, which will be for the betterment of all professional athletes.

Unfortunately, college sports—NCAA and alike—are still far behind in marijuana leniency initiatives. As it currently stands, marijuana is a banned substance under NCAA rules and players can be subjected to random drug tests at any point.186 Although, the NCAA has made adjustments and changes to its marijuana policy in recent years. The THC testing threshold used for NCAA drug tests was increased in 2019, though the committee responsible for the decision stated “this was done in an effort to prevent those who have inhaled cannabis via secondhand smoke from testing positive.”187

Nonetheless, the NCAA fails to render the student-athletes any education, evaluation, or treatment in a supportive environment.188 The league rules place the students in a poor vulnerable position during any given season. Even if cannabis is used for medical/therapeutic reasons, the student-athlete must make a decision to use it for pain relief or obey the rules and suffer under the current NCAA league mandates. The league claims they are focused on student-athlete health and well-being, but this is a fallacy given the current cannabis policy. In short, the NCAA will be next in taking a giant leap towards marijuana leniency.189 Marijuana policy shifts in the pro leagues will soon translate to the collegiate level.

For decades to come, cannabinoids will be a monumental success in commerce, education, healthcare, business, culture, government, law, hospitality, science, entertainment, sports—and the list goes on. According to a Research and Markets report, the global cannabis market was estimated to be valued at 20.5 billion USD in 2020, but it is projected to reach 90.4 billion USD by 2026.190 The commerce of cannabis will soon be comparable to the thriving industries of alcoholic beverages, automobiles, and cosmetics. The slew of marijuana-inspired success stories, paired with therapeutic benefits, have enthused league executives to realize its endless potential. Beyond professional sports, all private sector employers must adhere to the social change surrounding marijuana use. Even though there is not yet a consistent national approach to cannabis regulation, private enterprises must enact some form of leniency within their workplaces.

Professional athletes, and their respective leagues, are at the forefront of bringing national leniency to complete fruition. These professionals are rapidly joining the mainstream declaration of either promoting marijuana or proclaiming its use. From Capitol Hill to the hills of Montana, marijuana stigmas are rapidly deteriorating. This March 2021 Forbes title exemplifies the robust revolution: “U.S. Cannabis Sales Hit Record $17.5 Billion As Americans Consume More Marijuana Than Ever Before.”191 It is transparently clear widespread public approval is right around the corner. Society is changing, businesses are adjusting, sports leagues are adapting, and marijuana acceptance is the future of all professional sports enterprises across America.

Endnotes

1. The Suspensions Are Killing Me: Why the NFL’s Approach to Off-Field Conduct Needs Rehab, 28 J. Legal Aspects Of Sport 222, 223 (2018).

2. Id. Damaging a corporation’s image often results in lost profits and a poor reputation.

3. https://www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports

4. 18 U.S.C. § 802(16); https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd. Mexican immigrants originally called it “marihuana” before Americans changed it to “marijuana.” Also, THC is the main psychoactive constituent of all cannabis.

5. https://www.axios.com/marijuana-what-are-major-sports-leagues-policies-fd3d2f6f-1897-4e38-8844-6ec2cc53ddd9.html

6. https://www.history.com/topics/crime/history-of-marijuana. It was originated for use under a variety of cultures, including Indians, Muslims, Persians, and the ancient Greeks and Romans.

7. Id.

8. Id. (referring to only a few of alleged conditions in which was “treated”).

9. Id. (referring to the psychoactive component of marijuana which is THC).

10. Id.

11. https://www.usatoday.com/story/sports/nhl/2018/10/29/canada-legalization-could-nhl-leader-pot-policy/1806668002/ (Marijuana has remained a Schedule I substance under the Controlled Substances Act of 1970).

12. Id.

13. Id.

14. Id.

15. https://www.axios.com/marijuana-what-are-major-sports-leagues-policies-fd3d2f6f-1897-4e38-8844-6ec2cc53ddd9.html

16. Id.

17. https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd (referring to the most common derivatives like CBD and THC).

18. https://www.usatoday.com/story/sports/nhl/2018/10/29/canada-legalization-could-nhl-leader-pot-policy/1806668002/

19. https://www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports

20. Id.

21. https://www.law.cornell.edu/wex/collective_bargaining. A CBA is referring to the legal agreement where negotiations between the individual league and its athletes compromised on a slew of conditions/policies.

22. https://dailygazette.com/major-professional-sports-leagues-the-us-canada/ (referring to other leagues such as Major League Soccer (“MLS”), National Lacrosse League (“NLL”), and Women’s National Basketball Association (“WNBA”)).

23. Id.

24. Comparing Health-Related Policies and Practices in Sports: The NFL and Other Professional Leagues, 2017 Harv. J. of Sports & Ent. Law 1, 21. PEDs and their categorizations are often detailed in all league’s CBAs.

25. Id.

26. https://www.espn.com/nhl/story/_/id/26046596/is-nhl-future-marijuana-pro-sports-why-be

27. Id. (Uruguay passed legislation in 2013).

28. S.C. 2018, c. 16. Prime Minister Justin Trudeau pledged in his campaign of enactment “to keep marijuana away from underage users and curb marijuana-related crime.”

29. https://transformdrugs.org/cannabis-legalisation-in-canada-one-year-on/

30. Id.

31. Id.

32. https://www.statnews.com/2019/03/22/canada-legalize-marijuana-lessons-united-states/

33. Id.

34. Id.

35. Id.

36. Id. (referring to all current issues that would potentially arise if legalization occurs in the US).

37. https://www.civilized.life/articles/despite-legalization-cannabis-stigmas-are-more-prevalent-in-canada-than-america/ (referring to this poll that surveyed 1,602 adults from coast to coast in the U.S. and Canada).

38. Id.

39. 18 U.S.C. § 802(16) (Marijuana remains outlined as a Schedule I drug).

40. Id. (California led the initial movement of medicinal marijuana).

41. https://www.esquire.com/lifestyle/a21719186/all-states-that-legalized-weed-in-us/ (referring to the final numbers following the 2020 election results).

42. Id.

43. Nebraska and Oklahoma v. Colorado (this case was never heard by SCOTUS).

44. https://www.civilized.life/articles/despite-legalization-cannabis-stigmas-are-more-prevalent-in-canada-than-america/

45. Id.

46. Id. (referring to 56% Americans vs. 43% Canadians).

47. https://dailygazette.com/major-professional-sports-leagues-the-us-canada/ (referring to Canadian home teams of the Montreal Canadians, Toronto Maple Leafs, Ottawa Senators, Winnipeg Jets, Edmonton Oilers, Calgary Flames, and Vancouver Canucks).

48. Id.

49. https://hockeyanswered.com/yearly-revenue-of-the-nhl

50. https://www.sportsnet.ca/hockey/nhl/glenn-healy-says-nhl-alumni-association-cannabis-research/

51. https://www.espn.com/nhl/story/_/id/26046596/is-nhl-future-marijuana-pro-sports-why-be

52. Id.

53. Id. (“EDM” is the modern pump-up electronic dance music with an emphasized bass).

54. Id.

55. Id.

56. Id.

57. Id.

58. https://www.bodychekwellness.com/pages/riley-cote#

59. Id. (quote is merely opinionated and not necessarily medically supported).

60. Id.

61. Id.

62. https://www.sportsnet.ca/hockey/nhl/marijuana-use-players-story/

63. Id.

64. Id.

65. Id.

66. https://www.sportsnet.ca/hockey/nhl/marijuana-use-players-story/

67. https://www.espn.com/nhl/story/_/id/26046596/is-nhl-future-marijuana-pro-sports-why-be

68. https://www.nhlpa.com/the-pa/cba. “The [2012 ten-year] CBA between the NHLPA and the NHL sets out the terms and conditions of employment for all professional hockey players playing in the National Hockey League, as well as the respective right of the NHL Clubs, the NHL, and the NHLPA.”

69. https://www.sportsnet.ca/hockey/nhl/marijuana-use-players-story/

70. Id.

71. https://www.nhlpa.com/the-pa/cba.

72. Id.

73. Id.

74. Id.

75. Id.

76. Id.

77. https://www.espn.com/nhl/story/_/id/26046596/is-nhl-future-marijuana-pro-sports-why-be

78. https://www.nhlpa.com/the-pa/cba (referring to the CBA referencing a subsequent list which outlines individual banned substances).

79. https://tnmnews.com/sports/nhl/what-is-nhls-drug-policy-marijuana/

80. https://www.nhlpa.com/the-pa/cba.

81. https://tnmnews.com/sports/nhl/what-is-nhls-drug-policy-marijuana/

82. https://www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports

83. Id.

84. Id.

85. https://www.si.com/mlb/2019/10/13/tyler-skaggs-death-investigation-latest (it should be noted the medical examiner also found traces of alcohol, fentanyl, and oxycodone).

86. Id.

87. https://www.mlbplayers.com/cba

88. Id. (this policy took effect in 2020).

89. https://www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports

90. Id. (first offenders faced a 50 game suspension, while 100 games for a second offense).

91. Id.

92. Id.

93. https://harrisbricken.com/cannalawblog/trial-and-error-cannabis-and-the-big-four-sports-leagues/

94. https://www.mlbplayers.com/cba

95. Id.

96. https://www.npr.org/2019/12/12/787550622/major-league-baseball-drops-marijuana-adds-opioids-cocaine-to-drugs-of-abuse-list

97. https://www.forbes.com/sites/tomangell/2020/02/20/nfl-would-end-marijuana-suspensions-in-deal-circulated-by-players-union/?sh=3b1ae277536a

98. https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf

99. https://www.sportingnews.com/us/nfl/news/nfl-new-marijuana-policy-rules-cba-2020/1svd83aq5q0m71x4t2rftto1m5

100. https://www.sbnation.com/nfl/2019/12/16/21025073/josh-gordon-nfl-ped-suspension-drug-history-seahawks-career-future

101. https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf

102. https://www.urmc.rochester.edu/encyclopedia/contentid=cannabinoid_screen_urine

103. https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf

104. Id.

105. Id.

106. https://www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports

107. Id.

108. Id.

109. Id.

110. Id.

111. Id.

112. Id.

113. Id.

114. https://www.si.com/nba/mavericks/news/high-expectations-nba-wont-test-for-marijuana

115. https://harrisbricken.com/cannalawblog/trial-and-error-cannabis-and-the-big-four-sports-leagues/

116. https://nbpa.com/cba (ratified in 2017).

117. https://www.chicagotribune.com/marijuana/sns-tft-nba-commissioner-says-players-using-marijuana-complicated-20190808-rr5pojtigrgixne53kuzcceb2m-story.html

118. https://www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports

119. https://thefreshtoast.com/cannabis/kevin-durant-becomes-marijuana-advocate-for-nba-players/

120. Id.

121. Id.

122. https://www.si.com/nba/mavericks/news/high-expectations-nba-wont-test-for-marijuana

123. https://revolutionmedicalcannabis.ca/athletic-pain-relief/

124. Id.

125. https://www.canada.ca/en/health-canada/services/substance-use/problematic-prescription-drug-use/opioids/get-the-facts.html

126. Id.

127. https://revolutionmedicalcannabis.ca/athletic-pain-relief/

128. Fuss, J., Steinle, J., et. al. (2015). A Runner’s High Depends on Cannabinoid Receptors in Mice, Proceedings of the National Academy of Sciences of the United States of America, 112(42) https://doi.org/10.1073/pnas.1514996112

129. Id.

130. Id.

131. https://www.americanbar.org/groups/litigation/committees/jiop/articles/2019/marijuana-professional-sports-part-2/

132. Id.

133. Id. (referring to chronic traumatic encephalopathy or CTE, a brain condition with repeated blows to the head).

134. Id.

135. https://cannabisaficionado.com/athletes-cannabis-sports/

136. https://www.chicagotribune.com/news/breaking/ct-chicago-bears-jim-mcmahon-medical-marijuana-met-20160128-story.html

137. Id.

138. https://herb.co/news/sports/professional-athletes-cannabis-advocates/

139. Id.

140. https://www.sbnation.com/a/weed-and-sports-420/ufc-cynthia-calvillo-suspension

141. Id.

142. Id.

143. Id.

144. Id.

145. https://www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports

146. https://www.sfchronicle.com/

147. https://www.hhs.gov/opioids/about-the-epidemic/index.html

148. Barbuto v. Advantage Sales & Mktg., LLC, 78 N.E.3d 37 (Mass. 2017).

149. https://weedmaps.com/learn/cannabis-and-your-body/cannabis-new-sports-medicine

150. Id.

151. Id.

152. Id. (WADA has often been mirrored in professional sports policies).

153. Id.

154. https://sportsmedicine-open.springeropen.com/articles/10.1186/s40798-020-00251-0

155. https://www.condorcet.be/documents/RECHERCHE-APPLIQUEE/LABORATOIRE-DE-L-EFFORT-ET-DU-MOUVEMENT/Publi_2020_Cannabidiol_pharmacological_research.pdf

156. Id.

157. https://www.radio.com/sports/nfl/nfl-researching-cannabis-as-an-alternative-to-opioids

158. Id. (The NFL’s Pain Management Commission is a group run jointly by the players’ association and the league).

159. https://bleacherreport.com/articles/2771410-athletes-smoke-weed-interviews-nba-nfl-420

160. https://www.cannamd.com/pro-athletes-who-use-marijuana/

161. The Alternative to Opioids: Marijuana’s Ability to Manage Pain Caused by Injuries Sustained in the National Football League, 19 Tex. Rev. Ent. & Sports L. 63, 80 (2019).

162. https://www.sbnation.com/a/weed-and-sports-420/ufc-cynthia-calvillo-suspension

163. Id.

164. https://www.cnn.com/2009/US/02/05/kellogg.phelps/

165. Id.

166. https://www.potnetwork.com/news/first-and-only-pro-sports-team-us-take-cannabis-sponsorship-taking-second

167. Id.

168. https://jipel.law.nyu.edu/vol-5-no-1-3-epstein/#IIIC

169. Id.

170. https://www.bendbulletin.com/business/marijuana-turns-to-athlete-sponsorships/article_5ed54b09-292a-5e7f-889e-b967cbd470d4.html

171. https://www.sportbusiness.com/news/premier-lacrosse-league-brings-in-mendi-as-cbd-partner/

172. https://cannabisaficionado.com/cbd-sponsorship-motocross/

173. Id.

174. https://hempindustrydaily.com/report-nfl-players-union-warns-members-not-to-endorse-cbd-products/

175. https://sports.yahoo.com/medical-marijuana-sponsorships-sports-leagues-105521062.html

176. Id.

177. Id.

178. https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/

179. Queen, J., Pot Industry Primed for M&A Activity After Ballot Wins, Law360 (Nov. 10, 2020) (referring to New Jersey, Arizona, South Dakota, Mississippi, and Montana).

180. https://www.addictioncenter.com/news/2020/11/states-legalized-marijuana/

181. https://www.drugpolicy.org/issues/marijuana-legalization-and-regulation (STATES Act is the acronym for Strengthening the Tenth Amendment Through Entrusting States Act).

182. Id. (MORE Act is the acronym for the Marijuana Opportunity Reinvestment and Expungement Act).

183. https://ktla.com/news/california/california-bill-would-ban-most-pre-employment-drug-tests-for-marijuana/

184. Id.

185. https://www.thirdway.org/report/americas-marijuana-evolution

186. https://psuvanguard.com/cannabis-in-college-athletics/

187. Id.

188. A Commitment to the Whole Athlete: Embracing the Role of Cannabinoids in Collegiate Athletics, 43 Seattle U. L. Rev. 921, 931 (speaking on the NCAA’s poor cannabis regulation and education for its student-athletes).

189. Id. (The story of student-athlete C.J. Harris shows how the NCAA’s approach to cannabis puts him in a vulnerable position. Although Harris has not tested positive for THC levels above the NCAA threshold, he takes the risk that there may be a minimal amount of THC contained in the oil that he uses in order to control his medical condition of seizures).

190. https://www.globenewswire.com/news-release/2021/02/18/2177949/0/en/The-Worldwide-Cannabis-Industry-is-Projected-to-Reach-90-4-Billion-by-2026.html

191. https://www.forbes.com/sites/willyakowicz/2021/03/03/us-cannabis-sales-hit-record-175-billion-as-americans-consume-more-marijuana-than-ever-before/?sh=cae48bd2bcf7

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By Jake Kelinson

Jake is a May 2022 Juris Doctor Candidate at Rutgers Law School. He focuses his studies on business and corporate law. He can be reached at (215) 459-7388 or [email protected].