June 13, 2019 Articles

It’s Time to Get Real about Marijuana and Professional Sports: Part 2

Marijuana is likely to move from a fringe issue to a main-stage debate in sports law.

By Joseph M. Hanna

This is the second article in a two-part series focused on marijuana’s impact on professional sports and current developments in professional league policies, legislation, and elsewhere.

As discussed in the first article in this series, drug policy related to marijuana at both the federal and state levels has developed over the years even as it raises a number of challenges from both sides of the debate. Likewise, marijuana’s role in professional sports has also developed amid controversy as the leagues grapple with related issues, including testing and penalties. One of these related issues consists of marijuana’s role in sports medicine. With some research indicating that marijuana is a safer alternative to opioid-based prescription painkillers and other research suggesting marijuana could be used to treat brain injuries such as chronic traumatic encephalopathy (CTE), marijuana will likely move from a fringe issue to a main-stage debate in sports law.

Presently, it appears that advocates are taking an approach similar to what activists did when they lobbied lawmakers to decriminalize and legalize medical marijuana. Simply put, the argument is that marijuana can be used as a form of pain management and it is a safer alternative than traditional prescription painkillers provided and prescribed by team doctors. In a Bleacher Report interview, Matt Barnes, a former player in the National Basketball Association (NBA), said, “Everybody has their reason. They do it for their pain.” Trent Williams, an offensive tackle for the Washington Redskins, was suspended in 2011 and 2016 after testing positive for marijuana. Even though he was selected for the 2011 Pro Bowl, Williams was not eligible to play in the game because of his suspension. Regarding his marijuana use and subsequent suspensions, in an interview with the Washington Post, Williams said,

[I’m] [n]ot saying that it was right[.] [O]bviously I shouldn’t have done it and obviously should’ve chose[n] a different method. But at that time, you’re caught up in the midst of the season and all you want to do is be available. It wasn’t the right decision, but if you’re looking for a reason, it’s just to try and feel better for the next week.

There is still a debate within the medical community about the effectiveness and possible side effects of marijuana used for medicinal purposes, including the impact on an individual’s long-term health. Both the NBA and the National Football League (NFL) are optimistic about the potential medical benefits of marijuana, and each have made statements about their willingness to study its potential uses. According to NFL Commissioner Roger Goodell, speaking on ESPN Radio about a conversation he had with the NFL’s medical marijuana advisors, “[t]o date, [the advisors] haven’t said, ‘This is a change we think you should make that is in the best interest of the health and safety of our players.’ If [the advisors] do, we’re certainly going to consider that.” NBA Commissioner Adam Silver said, in an August 2017 interview with Slam Online, “I would say it’s something we will look at. I’m very interested in the science when it comes to medical marijuana . . . but to the extent that science demonstrates that there are effective uses for medical reasons, we’ll be open to it.” In an UNINTERRUPTED documentary, former NBA Commissioner David Stern said, “I’m now at the point where personally I think [marijuana] should be removed from the banned list.”

The Opioid Epidemic in Professional Sports

While the various sports leagues and their advisors study the effects of marijuana, team doctors, trainers, and staff continue to provide players with opioid-based prescription painkillers. The benefits of marijuana can be debated, but the opioid epidemic and its negative effects are well documented. According to the U.S. Department of Health and Human Services, in 2016, 11.5 million people misused prescription opioids and 42,249 people died after overdosing on opioids. According to an ESPN survey, of the 644 former NFL players surveyed, 71 percent of players who were prescribed opioid painkillers admitted to misusing them. In July 2011, the Elsevier Journal on Drug and Alcohol Dependence published a survey that showed that the rate of opioid use among retired NFL players is three times higher than that of the general population. In response to the epidemic, eight states issued statewide emergency declarations, and, in October 2017, President Trump declared the opioid epidemic a national public health emergency.

In January 2018, shortly after California legalized recreational marijuana, Golden State Warriors’ head coach Steve Kerr told the San Francisco Chronicle, “I do feel strongly that [marijuana] is a much better option than some of the prescription drugs, and I know that it’s helping a lot of people, which is great.” Regarding specific opioid painkillers, Kerr said, “You get handed prescriptions for Vicodin, Oxycontin, Percocet, NFL players, that’s what they’re given. The stuff is awful. The stuff is dangerous. The addiction possibility, what it can lead to, the long-term health risks. The issue that’s really important is how do we do what’s best for the players.” However, Phoenix Suns head coach Earl Watson does not share Kerr’s view. In an interview with ESPN, Watson said, “I think our rhetoric on it has to be very careful because you have a lot of kids where I’m from that’s reading this, and they think [marijuana use is] cool. It’s not cool . . . [s]o when we really talk about it and we open up that [it’s a] slippery slope.” Watson added that recommendations about player pain management should “come from a physician—not a coach.”

Some players have even gone further than rhetoric and filed lawsuits against professional sports leagues. In March 2018, a class of over 1,800 retired NFL players filed a lawsuit against the NFL, alleging in their complaint that they were supplied painkillers in order to keep them on the field—even though “[p]layers [we]re not informed of the long-term health effects of taking controlled substances and prescription medications.” In response to the epidemic, many professional athletes turned to marijuana to self-medicate. In an interview with the Washington Post, Eugene Monroe, a former NFL offensive lineman, said, “This pain is never going away. My body is damaged. I have to manage it somehow. Managing it with pills was slowly killing me. Now I’m able to function and be extremely efficient by figuring out how to use different formulations of [marijuana].” In his interview with Bleacher Report, Martellus Bennett said, “You don’t want to be popping pills all the time. There are anti-inflammatory drugs you take so long that they start to eat at your liver, kidneys, and things like that.”

Players who publicly support marijuana for pain relief often find that it is difficult to play in professional sports leagues after they voice their opinions.

However, players who publicly support marijuana for pain relief often find that it is difficult to play in professional sports leagues after they voice their opinions. For example, in 2016, Monroe became the first active NFL player to campaign openly for the use of medical marijuana in lieu of opioid painkillers. In fact, he donated $80,000 to When the Bright Lights Fade, a campaign that funds research on marijuana’s potential benefits for athletes. Shortly after he made his opinions public, Monroe was released from the Baltimore Ravens at the end of the season. He claimed that his release was possibly because of his marijuana advocacy (although it is also important to note that Monroe had a string of injuries during his NFL career, which may be a reason for his release from the team). While Monroe was advocating for medical marijuana, his head coach at the time, John Harbaugh, told a group of reporters following the March 2016 owners’ meeting, “I promise you, he does not speak for the organization.”

Another player who openly uses marijuana to treat his pain and now cannot play in the NFL is former running back Mike James. James was injured in a game in 2013 and was later prescribed several opioid painkillers. Shortly after, James developed a dangerous dependency: At one point he was taking two dozen painkillers a day. At his wife’s suggestion, James turned to medical marijuana to relieve his pain and suddenly, James said in a CNN interview, “my pain subsided.” Now James cannot return to the NFL because he will fail the league’s drug test. In March 2018, James became the first NFL player to file for a therapeutic use exemption (TUE). A TUE is an exam that determines if a player who requires a specific substance to treat a diagnosed medical condition can be exempt from the league’s substance abuse policy. The NFL has since denied his request.

Marijuana and CTE

In addition to marijuana being a potentially safer alternative for pain management, some research suggests marijuana could be used to combat CTE, a progressive degenerative disease of the brain found in people with a history of repetitive brain trauma, including symptomatic concussions as well as asymptomatic subconcussive hits to the head. The Journal of the American Medical Association published a study that revealed that of the 111 brains of deceased NFL players whose bodies were donated for research, 110 had developed CTE. Professional sports that involve a high degree of physical contact recently came under fire after retired and former players were diagnosed with CTE. Many professional sports leagues responded by changing rules and calling for more medical research. While there is no known cure for CTE, some research suggests medical marijuana could be used to protect the brain from damage caused by repeated concussions. There is also research suggesting that marijuana could help the brain heal after a traumatic brain injury.

Since 2009, the NFL has been altering its in-game rules to prevent hits to the head and hits on defenseless players, and the league even considered eliminating kickoff returns because of the high potential for injury. The National Hockey League (NHL) also altered its rules. For example, in 2013, the NHL modified Rule 48.1, redefining what constituted an illegal check to the head. Some claim that the rule change was the NHL’s response to the wrongful death lawsuit filed by the parents of former NHL player Derek Boogaard. Boogaard died in 2011, at the age of 28, after an accidental overdose of pain medication and alcohol. His autopsy report indicated that he suffered from CTE (during his 277 games, Boogaard was involved in 66 on-ice fights in which he presumably received numerous blows to the head). The NHL has since vigorously enforced the rule. Most recently, the NHL Department of Player Safety suspended Tom Wilson, a Washington Capitals forward, for 20 games for an illegal check to the head of St. Louis Blues forward Oskar Sundqvist.

Recently, the NFL and the National Collegiate Athletic Association have also become targets in lawsuits, including several class action lawsuits, claiming that the leagues knew about the dangers of CTE and brain trauma but failed to protect players and inform them about the risks and, on some occasions, even tried to cover up some of the evidence that suggested the leagues knew about the potential danger. One of the more notable lawsuits was brought by Shayanna Jenkins-Hernandez, the fiancée of the late New England Patriots tight end Aaron Hernandez. Hernandez committed suicide in prison while awaiting the appeal of his murder conviction. Ms. Hernandez sued the NFL, the New England Patriots, and later the football helmet manufacturer Riddell, claiming that her fiancée’s violent behavior and suicide were the result of his undiagnosed and untreated CTE.

There has been an extensive amount of research to determine if marijuana could be used to help athletes who suffer from CTE. For example, in 2013, a collaborative study by several university teams in Portugal, Brazil, and the U.S. found that marijuana could regenerate brain cells in mice. In addition, the study found that marijuana could increase blood flow to damaged areas of the brain and could also help keep brain tissue healthier by improving blood circulation. Another study using rats, conducted by the National Institute of Mental Health, found that cannabidiol (CBD) and tetrahydrocannabinol (THC), active marijuana compounds, mediate toxicity in the brain. Also, in 2012, a collaborative Tel Aviv University study found that low doses of marijuana could aid in the long-term recovery of brain injuries.

According to Dr. Christian Lé, a physician based in Portland, Oregon, and founder of Green Earth Medicine, a cannabis and holistic health clinic, “[t]here’s no question the medicinal use of CBD and THC in the right ways can greatly benefit [professional] athletes with controlling pain, inflammation, and sleep benefits. What’s even more important is that cannabinoid medicines are extremely safe compared to the more toxic side effects of pharmaceutical drugs.” Lé continued, “Medicinal cannabis will greatly benefit professional and amateur athletes in addressing their health needs. And importantly, using medicinal cannabis doesn’t require athletes being ‘stoned’ to get these medical benefits. This is a win-win possibility for athletes.”

According to Dr. Lester Grinspoon, professor emeritus of psychiatry at Harvard Medical School, the neuroprotective properties of marijuana could make professional athletes more CTE-resistant. In an open 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]—including preparations with no psychoactive effects, such as those with a high CBD to THC ratio—can indeed provide significant protection against the damage of repetitive concussions.” Dr. Grinspoon continued, “Attempts to improve protective equipment can only go so far without seriously diminishing the skills and capacities of the player. . . . I also see little potential in further rule changes to adequately address this issue, without altering the game so severely that it no longer resembles football as we know it.”

A Hazy Future Ahead

Whatever the future holds for medical marijuana, recreational marijuana, and marijuana in professional sports, one thing is clear: The drug is not going away. Marijuana is likely to remain an important sports law issue throughout 2019 and beyond. For now, it seems unlikely that the major professional sports leagues would remove marijuana from the list of banned substances as long as the federal government lists marijuana as a Schedule I substance. However, if more states continue to legalize marijuana and more research continues to suggest that marijuana may have potential medicinal benefits, then it seems likely that professional sports organizations would have to consider changing their policies.

Joseph M. Hanna is an attorney and partner with Goldberg Segalla in Buffalo, New York. He also leads the JIOP Alumni Committee, is actively involved with the American Bar Association, and is a JIOP alumnus.


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