By John Miller and Patti Donahue
Every time a football player steps onto the field, he is at risk for traumatic brain injury (TBI), including concussion. The severity of TBI is affected by primary trauma to the brain and inflammation and swelling after initial trauma (Gessel, Fields, Collins, Dick, & Comstock, 2007). Inflammation causes significant damage in TBI (McCrea, Hammeke, Olsen, Leo, & Guskiewicz, 2003) and can lead to immune challenges and depressive complications years after the trauma is sustained (Caldwell, 2013). Young adults suffering repetitive concussions likely will develop emotional and psychological health issues as they age (Caldwell, 2013).
Players suffering from TBI have become a major health concern for the NFL. Currently awaiting an appeals court ruling in its $1B concussion settlement with more than 20,000 retired NFL players (Barrabi, 2015), Commissioner Roger Goodell continues to iterate that players’ health and safety is a top priority for the NFL and cites rules changes, improved helmets, and expanded medical resources as evidence of this commitment (Barrabi, 2015; Cain, 2010). However, rules changes cannot adequately address TBI without radically altering football (Grinspoon, 2014); and there is little any helmet can do to limit the frequency or severity of concussions because helmets protect the skull, not the brain (Lartey, 2015).
Results from a 2015 study indicate that 96% of former National Football League (NFL) players suffer from chronic traumatic encephalopathy (CTE) (Luckerson, 2015), a neurodegenerative disease believed to be caused by repetitive brain trauma, including concussive and sub-concussive injuries (Baugh et al, 2012). CTE can lead to impaired memory, cognitive dysfunction, apathy, poor impulse control, depression, suicidality, and dementia (McKee et al, 2009). The negative effects of CTE can begin within months, years, or decades after brain trauma, with NFL players increasingly susceptible to CTE as they age (Didehbani, Cullum, Mansinghani, Conover, & Hart, 2013). Research indicates that 40% of retired NFL players evidence symptoms of depression (Didehbani et al., 2013), with a single concussion tripling the long-term risks of suicide (Thompson, 2016). In the last decade alone, at least eight former NFL players who committed suicide were diagnosed with CTE (Carlson, 2014).
While no pharmacological treatment specifically exists for treating TBI, players suffering from post-concussion symptoms generally are treated with anti-inflammatories, opioids, and other painkillers (Cottler et al, 2011; Jenkins & Maese, 2013). However, anti-inflammatories may increase bleeding in the brain, and opioids and other prescription painkillers have significant adverse side effects, including the potential for addiction (Figler, 2012). Research indicates that retired NFL players use painkillers at almost four times the rate of the general population (Cottler et al., 2011) sometimes to deleterious effect (“Sash overdosed on pain meds,” 2015). In May 2015, hundreds of former NFL players filed a lawsuit in the northern district of Maryland alleging that all thirty-two NFL teams intentionally withheld medical information from players and compelled the use of opiates and other painkillers to disguise pain and minimize lost playing time (Associated Press, 2015).
Recently, the Centers for Disease Control and Prevention began issuing guidelines for prescription painkillers, urging physicians to offer patients non-addictive, non-opioid alternatives to manage pain (McKay, 2016). As a possible medical alternative, previous research has supported marijuana’s neuroprotective, analgesic, and anxiolytic benefits, specifically with regard to treating TBI and associated post-concussion symptoms (Fishbein et al., 2012; Jiang et al., 2005; Mechoulum, Panikashvili, & Shohami, 2002). CBD and THC, two of marijuana’s most well-known cannabinoids, have demonstrated neuroprotective effects against brain trauma (Mechoulum et al., 2002). THC has medicinal properties that appear to limit brain injury by protecting brain cells and preserving cognitive function (Fishbein, et al., 2012); CBD has medical properties that may heal the injured brain (Mechoulum et al., 2002).
The legal position of medical marijuana in the United States is something of an enigma. For example, since marijuana remains a Schedule 1 drug (the most restrictive category) in the United States, the federal government prohibits both medicinal and recreational use without exception. Additionally, Gonzales v. Raich (2005) asserted the constitutionality of the Controlled Substances Act (CSA) as it pertained to localized marijuana-related activities. Moreover, the United States Supreme Court has deferred to Congress’ resolute determination that marijuana provides no medical benefit (United States v. Oakland Cannabis Buyers’ Cooperative, 2001). Such interpretation of the CSA allowed for a common law medical marijuana exception or medical necessity defense (Fan, 2015). Conversely, 23 states as well as Washington, D.C., have legalized its cultivation, distribution, and consumption for medical purposes. Additionally, these states have petitioned their sovereign authority to allow medical marijuana users “dignity and status of immense import” by recognizing their rights to preserve life, avoid severe pain, and exercise bodily autonomy with marijuana. Thus, the medical use of marijuana presents a paradox in which it is prohibited by the federal government, yet approved by certain state governments.
Federal enforcement in a state where medical marijuana is legal challenges the state authorities when enforcing a dual-ban on drugs such as cocaine and heroin. The erratic enforcement by federal authorities in states that have legalized medical marijuana not only threatens state drug policy, but also the ability of federal enforcement (Fan, 2015). Adding to the enforcement conundrum, the 2009 Ogden Memo instructed United States Attorneys that:
prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources (para. 4).
Therefore, the Ogden Memo reasserted that medical marijuana in all forms was illegal at the federal level. However, the Memo also revealed that when medical marijuana was permitted at the state level, the federal executive policy would be generally noninterventionist.
The federal preemption doctrine regarding state marijuana laws is based on the Supremacy Clause, which makes federal law “the supreme law of the land,” overriding clashing state laws (U.S. Const., art. VI, cl. 2). However, federalism principles prevent the federal government from mandating states to support or participate in enforcing federal law (Garvey, 2012). A famous quote by Alexander Hamilton (1788) stated that the:
balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other (Stephens, Scheb, & Glennon, 2014).
Due to the Rehnquist Court’s “federalism revolution” as depicted in United States v. Lopez (1995) and United States v. Morrison (2004) some have contended that those in favor of marijuana use should refer to federalism principles to protect state legislative independence concerning medical marijuana.
The federal government cannot violate state sovereignty and command a state to legislate or regulate in a certain way (Printz v. United States, 1997). Preventing intrusion into state sovereignty, the Tenth Amendment provides that the “powers not delegated to the United States, nor prohibited by the States, are reserved to the States, respectively, or to the people” (U.S. Const. amend. X). “No matter how powerful the federal interest, the Constitution simply does not give Congress the authority to require the States to regulate” (New York v. United States, 1992, p. 23). While Congress’s ability to compel states to enforce criminal prohibitions, repeal medical marijuana exemptions, or direct state enforcement of federal law is limited (Mikos, 2009), Gonzales v. Raich (2005) provided constitutional support to apply the CSA to individuals who were using marijuana in compliance with state laws and regulations.
While the federal government cannot compel states to enforce criminal prohibition on marijuana, repeal medical marijuana exemptions, or direct state enforcement of federal law (Garvey, 2012), state laws that conflict with federal law generally are preempted (U.S. Const., art. VI, para. 2). Under the doctrine of the supremacy of the federal government state laws cannot take precedence over the CSA (U.S. Const. art. VI, para. 2). However, state bills legalizing medical marijuana are constitutional and the federal government lacks any authority to ban or regulate marijuana within state borders (U.S. Const. amend. X). To date, state supreme courts have ruled that employers have the right to discharge — or refuse to hire — employees who engage in medical marijuana use, even if such usage is allowed by state law (Coats v. Dish Network, 2015; Roe v. TeleTech Customer Care Mgmt., 2011). Similarly, state high courts have held that employers are not required to provide accommodation for the use of marijuana in the workplace (Ross v. Raging Wire Telecommunications, Inc., 2008).
Anti-discrimination provisions included in existing medical marijuana legislation raise questions about the validity of adverse employment actions based on employees’ positive drug tests. Legal experts argue that language in the NFL’s substance abuse policy preventing players “from the illegal use, possession, or distribution of drugs, including … marijuana” (“NFLPA Substance Abuse Policy,” 2015, p. 1) may be ambiguous since the use of marijuana by an NFL player in a state that has legislated marijuana for medical purposes, arguably, would not be illegal. State advisory boards have begun recommending that pain unresponsive to conventional treatment be considered an indication for medical marijuana (McCoppin, 2016). Head injuries and related concussive symptoms suffered by NFL players likely will fall within this category. In addition, Department of Justice prosecutorial restrictions on the enforcement of medical marijuana laws suggest the preemptive reach of the Controlled Substances Act is modest (Chermerinsky, Forman, Hopper, & Kamin, 2015) and potentially could impact the fines and/or suspensions levied on NFL players who use medical marijuana legally.
Sixteen NFL teams play in states where medical marijuana is legal and another nine play in states that allow CBD-rich marijuana oil. Retired and active NFL players are expressing concerns about the challenges they confront from football careers characterized by concussive events. Yet, active NFL players cannot use marijuana medicinally because of the federal prohibition on its use. Unless science verifies that marijuana increases the risk of injury, NFL players should be allowed to use marijuana, as a medically prescribed alternative, to treat football-related injuries (Hackney, 2013).
While federalism generally works well, current marijuana policy illustrates how a patchwork of temporary fixes can be puzzling and precarious. The federal government must not ignore increasing state legalization of medical marijuana; instead it should assume responsibility for the existing mosaic of marijuana laws (Hudak, 2015). Indeed, as Justice Kennedy stated:
Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. . . . Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake (Bond v. United States, 2011, p. 222)
Congress should consider rescheduling marijuana as a Schedule I category, as 99 out of every 100 marijuana arrests are due to state laws, not federal laws (Office of Justice Programs, 2011). In doing so, the government could provide conditional approval for medical marijuana and support research that could lead to FDA approval (Frezza, 2013). Absent such changes, the NFLPA could revisit with NFL owners the collectively bargained policy on substance abuse and (a) provide a therapeutic use exemption for medical marijuana; (b) stop drug testing players for marijuana; or (c) remove marijuana from its list of banned drugs.
Dr. John Miller is a professor of sport management at Troy University. Dr. Miller is a former President of the Sport and Recreation Law Association. His research includes risk management in sport and recreation.
Patti Donahue is a second year doctoral student in the Sport Management program at Troy University. Her cognate area is in legal and social issues in sport. She presently works at the law offices of Latham & Watkins in Washington, D.C.
