February 25, 2019 Articles

It’s Time to Get Real about Marijuana and Professional Sports: Part 1

Calls to remove marijuana from the list of banned substances have become more frequent, and players are openly advocating for legalization.

By Joseph M. Hanna

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

Since 2013, 9 U.S. states and Washington, D.C., have passed laws legalizing recreational marijuana, while 31 states passed laws legalizing medical marijuana. According to a 2018 Pew Research survey, 62 percent of Americans say marijuana should be legalized; Michigan, New Jersey, North Dakota, Oklahoma, and Utah are expected to legalize recreational marijuana in 2018. As public perception of marijuana use for medicinal and recreational purposes continues shifting toward tolerance and even creative embrace, employers in nearly every industry struggle to adapt to shifting state laws, conflicts between state and federal laws, and pressure from employees’ expectations. Nowhere has conflict over employers’ marijuana polices been more prominent than in America’s professional sports leagues.

Eighty-seven professional U.S. sports teams currently have athletes playing professionally in a state that legalized medical or recreational marijuana. Complicating matters further, nine professional Canadian teams compete with U.S. teams in predominantly American leagues—and on October 17, 2018, recreational use of marijuana officially became legal across Canada. However, regardless of state, federal, or international law, the World Anti-Doping Agency (WADA), National Basketball Association (NBA), National Football League (NFL), National Collegiate Athletic Association (NCAA), Major League Soccer (MLS), Major League Baseball (MLB), and Ultimate Fighting Championship (UFC) all ban the use of marijuana within their substance abuse policies. The National Hockey League (NHL) is the only professional sports league that does not include marijuana on its list of banned substances.

The marijuana debate within professional sports, like the rest of the country, is stronger than ever. Calls to remove marijuana from the list of banned substances have become more frequent, in line with the increase in recent suspensions and fines, alleged rampant use among professional athletes, and players openly advocating for legalization.

Current State and Federal Drug Policies in America: An Overview

In 1970, President Richard Nixon signed the Controlled Substances Act (CSA), the current federal drug policy that regulates the manufacture, importation, possession, use, and distribution of certain substances. Under section 811 of the CSA, banned substances are classified into five schedules. Schedule I substances, defined as those with a high potential for abuse, are not currently accepted as a form of medical treatment and cannot be safely used under the supervision of a medical care provider. Currently, marijuana is defined as a Schedule I substance. However, in 2013, President Barack Obama implemented the Cole Memorandum, which directed U.S. attorneys to prosecute only a small set of marijuana cases involving minors, gangs, or organized crime; the sale of marijuana in interstate commerce; and the cultivation of marijuana on federal land.

On September 30, 2018, President Donald Trump signed an extension of the Rohrabacher-Farr Amendment, a 2014 law preventing the federal government from spending money on medical marijuana prosecutions, as long as growers and dispensaries carefully abide by state laws—except, however, recreational marijuana. As a result, although nine states and Washington, D.C., allow for recreational marijuana use, growers and dispensaries remain vulnerable to federal prosecution. In addition, the amendment states that the Department of Justice (DOJ) will not use funds to prevent listed states and territories from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” However, the term “implementing” may still allow the DOJ to prosecute marijuana operations that are legal under state law.

Most importantly, the amendment was, and continues to be, approved only as an amendment to the federal budget. Therefore, the law’s lifespan is tied to annual renewal by Congress. However, a new budget has not been approved since 2015, leaving the amendment’s long-term status unresolved. Despite this uncertainty, the amendment has continued to be renewed through various emergency spending legislation. In addition, in January 2018, the DOJ rescinded the Cole Memorandum and asked U.S. attorneys to resume prosecution of violators under the CSA. Should the president choose not to extend the amendment, there is a possibility that the DOJ may begin prosecuting marijuana businesses, regardless of the legality of the drug within a given state.

In the face of uncertainty, many states passed their own recreational and medical marijuana legislation, and state courts continue to enforce and interpret the laws. For example, in June 2017, a Rhode Island state court ruled that a potential employer could not refuse to hire a job candidate simply because she disclosed that she was a medical marijuana cardholder and would fail the preemployment drug test. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. Ct. May 23, 2017). In July 2017, a Massachusetts state court held that a medical marijuana user who failed a drug test and was subsequently fired could bring a disability discrimination lawsuit. According to the court, under the Massachusetts disability discrimination law, employees have the right to seek a reasonable accommodation for medical marijuana use. See Barbuto v. Advantage Sales & Mktg., LLC, 78 N.E.3d 37 (Mass. 2017).

Marijuana and Professional Sports

Professional sports leagues conduct testing for illegal substances for the same reason as employers in most other sectors: because of the possible negative consequences for employee health and workplace safety, and to avoid entanglements with law enforcement. However, unlike regular employers, professional sports leagues have additional reasons for conducting drug tests. The profitability of professional sports leagues is tied to the on-field success of their players, fan support, and the preservation of the leagues’ integrity. Drug testing protects a team’s investments in a player and avoids negative publicity that results when a player suffers adverse health or legal consequences associated with illegal drug use. Some, like Washington, D.C., attorneys Mark M. Rabuano and Deanne L. Ayers, observed that professional sports leagues have a legitimate interest in controlling illegal drug use to ensure that a player’s job performance will not be affected by illegal drugs. Ayers observed that in professional sports in particular, drug use is likely to result in athletes’ irregular attendance at practices and games, subpar performance, and additional costs incurred for the rehabilitation of players.

Each league has a collective bargaining agreement outlining its drug testing procedure. For example, between April 20 (the unofficial holiday when many Americans celebrate and consume marijuana) and August 9, NFL players are subject to one random drug test. Also, prospective NFL players are subject to one drug test before the NFL Combine. If the player passes, he will not be tested until the following season; however, if the player fails the drug test, he must enter an intervention program. If an NFL player fails multiple drug tests, he faces fines and suspension without pay, and the NFL could even ban the player for up to one year.

The NBA, through its collective bargaining agreement, can test a player no more than four times during the season and no more than two times during the off-season. In addition, NBA players are subject to “reasonable cause testing.” If the NBA has reasonable cause to believe that a player is engaged in the use, possession, or distribution of a prohibited substance, the NBA may request a conference with an “independent expert” who will determine whether reasonable cause exists to test the player. If the player fails a drug test, he is required to participate in the league’s illegal drug program. If the player fails the drug test for a second time, the player is fined $25,000. If the player fails the drug test for a third time, he is suspended for five games, and each violation thereafter increases the suspension by five games.

It appears that the number of professional athletes fined or suspended after testing positive for marijuana is rising. In April 2018 alone, Dallas Mavericks center Nerlens Noel and Utah Jazz forward Thabo Sefolosha were each suspended five games without pay after they tested positive for marijuana. In June 2017, Detroit Pistons forward Reggie Bullock and Indiana Pacers guard Monta Ellis were also suspended five games without pay after each player tested positive for marijuana. Notable UFC fighters like Cynthia Calvillo, Nick Diaz, Niko Price, Curtis Blaydes, and Abel Trujillo have all been suspended after testing positive for marijuana in 2017 and 2018. It is difficult to determine the exact number of NFL players who are suspended after they test positive for marijuana because the NFL’s substance abuse policy has a strict confidentiality requirement. Any player, team, or team employee is subject to a $500,000 fine for breaching the confidentiality provisions. Most of the time, the NFL reports that a player was suspended or fined for “violating the substance abuse policy.” According to data compiled at drugabuse.com, between 2002 and 2015, there were 945 substance-related suspensions and $68,203,788 in fines to various NFL players (these figures include fines and suspensions for performance-enhancing drugs, alcohol, and other non-marijuana drug violations).

Arguments For and Against Current Marijuana Policies in Professional Sports Leagues

There is a growing belief among athletes that professional sports leagues should remove marijuana from the list of prohibited substances and lower the harsh penalties that players face as a result of a marijuana-related violation. According to former players in a recent interview with Bleacher Report, even though marijuana is listed as a banned substance, the ban does not appear to prevent players from using marijuana. In the interview, Martellus Bennett, who retired from the NFL in March 2018, estimated that 89 percent of players in the NFL actively use marijuana. Also in the interview, Kenyon Martin, who played 15 seasons in the NBA, estimated that 85 percent of NBA players during his career actively used marijuana. Some have even gone as far as to say that the leagues’ bans are simply hypocritical. According to former NBA player Matt Barnes, “[t]he GMs, coaches, presidents [were smoking]. I mean, it goes deeper than what you think. Some of the people that are cracking whips and suspending us are smoking weed.” Barnes added, “All [of] my best games I was medicated.” Former NFL defensive lineman Shaun Smith said, “Coaches do it. Personnel does it, people upstairs do it, quarterbacks, guys that are your captains, [and] leaders of the team smoke.” Golden State Warriors head coach Steve Kerr confirmed as much in a podcast interview with Comcast SportsNet California, admitting that he smoked marijuana to relieve the pain and complications that arose from a back procedure conducted during the 2015–2016 regular season.

Some, like former UFC fighter and current World Wrestling Entertainment wrestler Ronda Rousey, believe having marijuana on any league’s list of banned substances does not serve a logical purpose. Rousey was very outspoken after Nick Diaz, a fellow UFC fighter, was suspended after he tested positive for marijuana. In a Men’s Journal article, Rousey said, “I’m sorry, but it’s so not right for him to be suspended five years for marijuana. I’m against testing for weed at all. It’s not a performance-enhancing drug. And it has nothing to do with competition. It’s only tested for political reasons.”

Others argue that marijuana should remain on the list of prohibited substances because under federal law and the laws of about half of the states, marijuana is still illegal to possess, distribute, and consume. There is a growing effort to legalize marijuana, but many argue that professional sports leagues should not be at the forefront of the movement. At a forum for the Walter Payton Man of the Year Award, NFL wide receiver Larry Fitzgerald said, “You got to look at the bigger picture. We’re up here on the stage, playing at an elite level. There are so many kids watching us and trying to emulate us.” Further, compliance with the league’s substance abuse policy is not difficult. Regarding the NFL’s substance abuse policy, Buffalo Bills running back LeSean McCoy said, “I don’t smoke weed so it doesn’t affect me.” Of course, remaining drug free is the most effective way to avoid a fine or suspension; however, players often know when they are going to be tested and can easily adjust their private lives around their scheduled test. At the aforementioned forum, Fitzgerald said, “The guys who are getting caught [are] just not using common sense,” and Greg Olsen, a tight end for the Carolina Panthers, sitting next to Fitzgerald, emphatically nodded in agreement. In the Bleacher Report interview, John Moffitt, a former NFL offensive guard, said the NFL is essentially “looking away” by only testing once a year.

It is important to note that the most severe fines—the ones that garner media coverage—are exceptions, not the norm. Most of the time, only repeat offenders are subject to harsh league penalties and only egregiously repetitive offenders risk placing their careers in jeopardy. For example, Ricky Williams, a former Heisman Trophy winner and notable running back for the Miami Dolphins, reportedly tested positive for marijuana five times between 2004 and 2007 (although some claim that the number could be higher). In an interview with Sports Illustrated, Williams claimed that he was drug-tested more than 500 times during his career. In the same interview, Williams’s wife, Kristin Barnes, claimed that Williams was tested so many times that the people who came to Williams’s home to administer the drug tests became “like family.” Williams jokingly said, “I think I hold the world record for most drug tests.” The failed drug tests resulted in numerous suspensions and fines, which prompted Williams to retire from the NFL early, come out of retirement, and then retire again shortly thereafter. Williams, now a medical marijuana advocate, was drafted fifth overall in the 1999 draft and was expected to be an exciting upcoming player. All expectations were lost after Williams’s numerous suspensions and early retirement. Repetitive marijuana violations clearly contributed to the premature conclusion of Williams’s promising career.

Another example is the Houston Astros up-and-coming star power-hitter Jon Singleton. Singleton is best known for the $10 million deal that he signed before he had even made a single major league plate appearance. In 2011, Singleton was touted as the Astros’ best prospect. While he made major league appearances in 2014 and 2015, Singleton was demoted to the Astros’ minor league baseball team after testing positive for marijuana a third time and was suspended for 100 games. In 2013, Singleton was also suspended for 50 games after testing positive for marijuana a second time. On May 21, 2018, the Houston Astros released Singleton after just 95 regular season games.

Questions Abound and the Controversy Continues

Law and the public’s perception of marijuana have changed over time, even as the debate continues with many weighing the pros and cons of its legal role in society. The arena of professional sports and sports leagues is a microcosm that highlights the debate about marijuana in society and also deals with unique controversies due to issues specific to athletics. With developments at both the state and federal levels, questions about marijuana’s future will likely arise with even greater frequency.

The second part of this two-part series will discuss some of these questions about marijuana’s future in the context of sports medicine, including its potential impact with the opioid epidemic and the research on chronic traumatic encephalopathy.

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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