By Eric M. Sable, Esq.
Back in November 2012, in an unprecedented move, voters in both Colorado and Washington approved state initiatives legalizing the possession and recreational use of marijuana. While this legislation has the potential to impact professional and student athletes across those states, players located in Colorado and Washington are not free to spark up just yet. This issue has immense implications on future substance abuse testing in the sports domain.
Reefer Referendums
The laws passed in Colorado and Washington permit adults over 21 years old to possess up to an ounce of marijuana for personal use. However, the exact contours of the regulations are not yet clear. Each respective state’s Liquor Control Board is given one year to establish rules for state-licensed stores to sell marijuana, and also to promulgate impairment levels for the application of state DUI laws. Colorado and Washington state officials plan to announce the regulations and begin issuing licenses to marijuana producers by August.
Despite these measures, there are significant obstacles standing in the way. The possession and use of marijuana remains a violation of federal law under the Controlled Substances Act (“CSA”). There exists the likely possibility that the Department of Justice (“DOJ”) will sue both states in an effort to overturn the laws. And this type of case is ripe to make its way to the U.S. Supreme Court. For instance, a similar case — Gonzales v. Raich, 545 U.S. 1 (2005) — involving a California state medicinal marijuana law was decided by the Court back in 2005, and held that Congress may prohibit the local cultivation and use of marijuana under its Commerce Clause powers.
Further, even if these laws are not overturned through the court system, this new marijuana legislation does little to change employers’ rights or affect zero tolerance policies in the workplace. For instance, Colorado’s marijuana law includes the following language: “Nothing in this Section is intended to require an employer to permit or to accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
Pot Policies
Both professional sports leagues and the NCAA prohibit the use of marijuana and implement serious penalties for those who continually abuse the drug.
In theory, the NCAA’s Division I drug testing policy carries more stringent discipline: a first-time offender must sit out an entire year and also loses one year of eligibility, while a second positive test results in the loss of an additional year of eligibility. Despite these rules, marijuana testing varies among individual universities, and positive tests result in different degrees of punishment depending on the specific school.
In the NFL, NBA, and MLB, a first offense results in placement in a substance abuse program. A second offense while participating in such a program carries a steep fine: NFL players lose three weeks of pay, NBA players are fined $25,000, and MLB players are fined up to $35,000. Continuing offenses can result in more fines, multi-game suspensions, and even year-long banishment from the league.
NFL: No Fun League
The impact of the new marijuana laws may come to the forefront in the NFL. Not only is there the possibility that the laws will set a standard for marijuana impairment — the amount of THC in the bloodstream — at a higher threshold than the league permits (15 nanograms per milliliter), but the NFL’s drug policy is also sufficiently vague and open to varying interpretations.
The NFL’s substance abuse policy states that the “The National Football League prohibits players from the illegal use, possession, or distribution of drugs, including but not limited to … marijuana.” Broncos and Seahawks players testing positive for marijuana can argue that such use is not “illegal” since it is now permissible under state law. On the other hand, the NFL can respond by arguing that: (1) the use of marijuana remains impermissible under the federal CSA, and (2) the efficacy of the NFL’s substance abuse policy requires uniform application across all of the league’s member clubs.
While the outlook on marijuana use is becoming more progressive nowadays — as the use of the drug is more widespread — most NFL personnel evaluators still red-flag players with a history of repeated marijuana use. Many times the concern is not the use of the drug itself, but the potential for deeper underlying character issues. That is why positive drug tests during college or at the NFL Combine routinely result in the precipitous drop in a player’s draft stock. For example, the Patriots’ talented tight end Aaron Hernandez slipped to the fourth round in the 2010 NFL Draft after failing multiple drug tests during his college football career.
Forward Thinking
While the DOJ could always curtail the marijuana movement, as more states begin to follow Colorado and Washington’s lead in legalizing marijuana, the inherent conflict between state marijuana legalization laws and the substance abuse policies of sports leagues will become more pervasive. In the meantime, college and professional athletes in these states are not yet immune from the reach of league policies regarding marijuana use.
Eric M. Sable, Esq. is admitted to practice law in Pennsylvania and New Jersey. He is in the process of establishing his law practice. In May 2012, he graduated with magna cum laude honors from Widener University School of Law in Wilmington, Delaware. While at Widener, Eric served as the Editor-in-Chief of the Delaware Journal of Corporate Law and clerked for Justice Henry DuPont Ridgely at the Delaware Supreme Court. Follow him on twitter @EricSable.
