By Jordan Kobritz
As the result of a penalty handed down by the NCAA, the University of Oregon may have been at a disadvantage when it lost to Ohio State, 42-20, in the first ever College Football Playoff (CFP) National Championship Game.
Just two days before the big game, wide receiver Darren Carrington and running back Ayele Forde were suspended after failing NCAA mandated drug tests. Carrington apparently tested positive for marijuana although Forde’s specific violation was not disclosed. The players were tested prior to the Ducks’ victory over Florida State in the CFP semifinal game at the Rose Bowl the previous week.
The NCAA first began drug testing in 1986 three years after several college athletes had failed drug tests at the Pan American Games. Jennifer Hill, a student-athlete at Stanford University, challenged the NCAA’s drug testing policy claiming it violated her privacy rights under the California State Constitution. In a 1994 decision, the California Supreme Court (865 P.2d 633) ruled for the NCAA after two lower courts had sided with the Plaintiff.
As with most things involving the NCAA, the governing body’s drug testing program and the penalties imposed on the Oregon players are controversial. The NCAA’s 2014-15 Drug Testing Program states that student-athletes competing in Divisions I and II are subject to year-round random drug testing. In addition, the NCAA conducts drug tests during all championship tournaments and events. The NCAA oversees 89 championship events but other than drug testing, the NCAA is not involved in any aspect of the CFP. That responsibility rests with the Big-5 conferences which make the rules, pay the expenses and distribute the tournament’s profits without any input from or oversight by the NCAA.
Signs of that independence were readily apparent during the CFP National Championship Game held at A T & T Stadium in Arlington, Texas, home of the Dallas Cowboys. The NCAA doesn’t allow the sale of alcoholic beverages at any of its championship events. However, if you attended the championship game, or if you watched it on television, you know that alcoholic beverages were widely available for purchase.
Another distinction between the CFP and NCAA conducted championship events involves travel expenses. CFP organizers allotted up to $3,000 in travel expenses to allow each player’s family to attend the title game. Not to be outdone by the Big-5 conferences, the NCAA did vote to provide similar travel stipends to families of players participating in this year’s Final Four of both men’s and women’s Division I basketball on a trial basis. However, despite the fact that NCAA revenue approaches a billion dollars a year, the governing body doesn’t provide similar travel stipends to players’ families for any of its other championships.
The NCAA approved a resolution last year granting the Big-5 conferences the independence to pass their own rules in a number of areas. Pursuant to that authorization, during the recently concluded annual NCAA convention the Big-5 voted to pay scholarship student-athletes the full cost of attendance. Alas, the grant of self-governance doesn’t extend to drug testing during the CFP. If that was the case, Carrington and Forde would have suited up for the biggest game of their careers.
The NCAA currently bans drugs in eight separate categories, one of which, “street drugs,” includes marijuana. However, the NCAA does not test for marijuana during its year-round program. Student-athletes are only tested for marijuana at football bowl games and championship events in other sports. In other words, although Carrington and Forde were subject to random testing throughout the year by the NCAA for such drugs as anabolic steroids, they were only subject to marijuana testing by the NCAA during the last two games of the season, the Rose Bowl and the CFP National Championship Game.
NCAA Bylaw 18.4.1.5.2 requires a suspension for half a season for a first marijuana offense. Bowl games and playoff games are considered part of a season, hence the immediate suspension of Carrington and Forde. Harsh as the current NCAA policy may seem, players were suspended for an entire season until 2013 when penalties for marijuana violations were separated from those for performance enhancing drugs.
In addition to their drug testing program, the NCAA also encourages individual schools and conferences to set up their own programs. Few conferences have implemented uniform procedures for their members, preferring instead to allow schools to address the issue individually. According to the NCAA website, 90% of Division I schools, 65% of Division II schools, and 21% of Division III schools currently have their own drug testing policy. The NCAA also leaves it up to individual schools to determine applicable penalties for student-athletes who fail drug tests. Most schools are fairly liberal in both their frequency of testing and the severity of punishment for failed tests, particularly when marijuana is involved.
Oregon’s More progressive Approach
Unlike the NCAA, Oregon uses a progressive approach to discipline, similar to most schools. After their first failed test for marijuana, student-athletes receive counseling and education about drug abuse. A second failed test results in a “behavior modification contract” between the athlete and his/her coach. For a third offense, players are suspended for half a season. If a student-athlete commits a fourth offense, he or she will be dismissed from the team and lose all athletic financial aid beginning with the next academic term. Those are baseline penalties. Individual coaches have the option of imposing more stringent penalties than those included in the policy at any time. Had Carrington and Forde failed a test administered by the University, they could have suited up for the National Championship Game.
Another controversial aspect of the NCAA policy is the marijuana threshold required for a positive test. A positive test results when there are only five nanograms of THC – the main ingredient in marijuana – per millimeter of blood. That threshold is extremely low when compared to other governing bodies. In September, the NFL increased its threshold from 15 nanograms per millimeter of blood to 35. MLB’s minimum threshold for a positive test is 50 nanograms, which is the same level that applies to airline pilots. Granted, those thresholds apply to professionals while the NCAA still clings to the arcane view that it governs “amateur” athletes. However, the World Anti-Doping Agency uses a threshold of 150 nanograms and the WADA Code has been adopted by both professional and amateur leagues, including the Olympics.
Currently, 23 states and the District of Columbia have enacted legislation that permits the use of medical marijuana. Four of those states — Alaska, Colorado, Oregon and Washington – have gone further and allow the use of marijuana for recreational purposes, although Oregon’s law does not take effect until July 1. An additional five states have marijuana related ballot measures scheduled in the next year. It should be noted that the federal government still views the possession of cannabis, even for medical purposes, as a crime.
In states that authorize it, medical permission to use marijuana is easily obtainable especially for such things as stress, pain and physical ailments, making it very likely that an athlete could convince a physician of the benefits of using marijuana. However, patients must be at least 21 years of age. Therefore, many college athletes wouldn’t receive permission, although plenty of them still smoke weed. In the NCAA’s most recent survey, conducted in 2012, 16% of all Division 1 athletes and 17.4% of all D-1 football players admitted using pot. Those numbers have remained relatively consistent throughout the decades that surveying has been in effect.
Fourteen years ago a Gallup survey determined that more than two-thirds of Americans were against using marijuana for any purpose. A recent PEW poll found that 54% of Americans currently approve of the use of medical marijuana.
Ironically, just two days after the suspensions of Carrington and Forde the NCAA announced on its website that it plans to re-examine its approach to the use of recreational drugs among student-athletes. Specifically, the release stated that the Committee on Competitive Safeguards and Medical Aspects of Sports “recommended extensive changes to the NCAA’s drug-testing policies.” Among those recommendations were increased testing and preventative efforts for performance enhancing drugs and a new model for prevention of recreational drug use that focuses “on educational programs instead of a traditional testing model.”
The committee also said that, “Use of recreational drugs should absolutely be discouraged but because they do not provide a competitive advantage, alternative approaches to testing should be developed.” It should be noted that the committee recommendations were made in December, prior to the suspensions of the Oregon players.
The release is a tacit admission by the NCAA that existing policies have failed to deter drug use among student-athletes and runs counter to the educational mission espoused by the governing body. “Given that testing over nearly 30 years hasn’t served as an adequate deterrent — plus the fact that student-athletes who are penalized for recreational drug use by losing eligibility are more likely to drop out of school — the committee suggested the NCAA explore whether a different approach for recreational drugs is warranted.” There was no indication in the release of any timetable for a formal legislative proposal or when the NCAA might consider the committee’s recommendations.
We don’t know whether having Carrington and Forde in the lineup would have changed the outcome of the first CFP game. However, given the sea change in how Americans view marijuana, the fact that marijuana isn’t considered a performance enhancing drug, and its own inconsistent and failed testing policies, the NCAA should heed the recommendations of the Committee on Competitive Safeguards and Medical Aspects of Sports. It’s time to eliminate testing for marijuana.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor in the Sport Management Department at SUNY Cortland and also maintains the blog: http://sportsbeyondthelines.com Jordan can be reached at jordan.kobritz@cortland.edu.
