By Matthew Kaiser, Global Sports Advocates
At the end of last year, the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports (the “Committee”), which recommends anti-doping policies and procedures to the NCAA Board of Governors as well as hears drug-testing appeals[18], reevaluated the NCAA’s Anti-Doping Program (the “Program”) at its meeting in December.[19] Having reviewed “data and various scenarios”, the Committee felt that the application of the Program left open the possibility of “inconsistent penalty lengths” for student-athletes who tested positive for a prohibited substance that was not an illicit drug.[20]
As the Program is currently written, a student-athlete who, for the first time, tests positive for a prohibited substance that is not an illicit drug in a test administered by the NCAA,
shall be charged with the loss of one season of competition in all sports in addition to the use of a season . . . if he or she has participated in intercollegiate competition during the same academic year. The student-athlete shall remain ineligible for all regular-season and postseason competition during the time period ending one calendar year (365 days) after the collection of the student-athlete’s positive drug-test specimen and until he or she tests negative . . . .[21]
Based on the wording of this provision, the sanction could have a very different impact on the student-athlete depending on when the student-athlete tested positive. If the student-athlete tested positive before or after the season, then the corresponding one-year sanction would have the precise effect it was intended to have: prohibit a student-athlete from competing for full season and count it towards that individual’s athletic eligibility period, with no residual effect. If, on the other hand, the student-athlete tested positive during the season, the corresponding sanction could force the student-athlete “to miss closer to two seasons of eligibility”.[22] This is because the student-athlete would have to miss the remainder of the season currently being played (a season which is likely already considered a season of intercollegiate competition for purposes of athletic eligibility, assuming the athlete is not redshirted[23]) and then he or she would have to forfeit an additional season as part of the punishment, per the rules.
This interpretation is exactly what Amani Bledsoe, a defensive lineman for the University of Oklahoma, argued in his recent state court case against the NCAA.[24] Mr. Bledsoe sued the NCAA for violating his due process rights under the Oklahoma Constitution when it suspended him for one year following a positive doping test that came from a contaminated supplement. His sanction began on October 5, 2016, the date of sample collection, and lasted through the first four games of the 2017 season. As a result, he not only wasted an athletic eligibility season on 2016 due to the fact he could not finish out the season, but also was required to count the 2017 as an eligibility season, even if he did not get to play. Fortunately, Mr. Bledsoe was talented enough to participate in 8 games in 2017, so his “forfeited” season was not a complete loss.
Seeing the drastic impact this rule could have on athletes, the Committee discussed “clarifying the rule to ensure student-athletes lose just one season of eligibility regardless of when they test positive”[25]. According to the chair of the Committee, Dr. Doug Ramos[26], amending the rule so that the student-athlete would only lose one season of eligibility would realign the rule with its original intent and thus “make[] the application of it fair”.[27] Dr. Ramos went on to explain,
As we considered what happens to these athletes, our ultimate intent is to have them remain in school and get them through the process, but also maintain fair competition. And when a student-athlete would have to sit out maybe as much as two years if they tested positive at the start of the season, that was not in the best interest of the athletes not only from a health and safety perspective and mental health, but it was not beneficial from an academic perspective, too.[28]
Consequently, the Committee proposed its rule clarification to the appropriate groups so that these changes could be voted on and hopefully enacted for the following competitive year.
Although not officially in the NCAA Bylaws yet, the recent proposal from the Committee will provide more consistent penalty lengths and better protect athletes from serving sanctions that are unproportionate and devastating to their short collegiate athletic careers.
[18] NCAA Drug-Testing Program 2018-19, p. 7.
[19] Brian Hendrickson, “CSMAS recommends drug-testing penalty change”, Dec. 21, 2018, available at http://www.ncaa.org/about/resources/media-center/news/csmas-recommends-drug-testing-penalty-change.
[20] Id. There are different sanctions for positive results involving illicit drugs. If an athlete tests positive for an illicit drug, he or she is “ineligible for competition during 50 percent of a season in all sports (50 percent of the Bylaw 17 maximum regular-season contests or dates of competition).” See, 2018-19 NCAA Division I Manual, art. 18.4.1.4.2.
[21] 2018-19 NCAA Division I Manual, art. 18.4.1.4.1.
[22] Hendrickson, supra.
[23] Typically, any student-athlete who competes in a game (regardless of the amount of time the student-athlete actually plays) that counts towards a championship season will “use” one of his or her athletic eligibility years. However, the NCAA recently adopted an exception for student-athletes playing football: a player may compete in four games during a championship season and still be considered “redshirted” so that such participation would not count towards that player’s athletic eligibility years. See 2018-19 NCAA Division I Manual, art. 12.8.3.1.6 (“[A] student-athlete may compete in up to four contests in a season without using a season of competition.”).
[24] Plaintiff Amani Elijah Bledsoe’s Motion for Summary Judgment, Oct. 25, 2018, page 15.
[25] Hendrickson, supra.
[26] Team physician for Creighton University.
[27] Hendrickson, supra.
[28] Id.
