By Ayana M. Dunning, MBA & Michael S. Carroll, PhD
In November 2019, the House Judiciary Committee approved a bill legalizing marijuana at the federal level and retracting it from Schedule 1 of the 1970 Controlled Substances Act (CSA; Lovelace, 2019). Drugs under Schedule 1 of the CSA have no accepted medical use and are not considered safe (Robotti, 2019). While federal regulations on marijuana are still years away as the proposed bill must be accepted by the full house and later the Senate, this progress towards a blanket legalization of marijuana in the United States is groundbreaking. Under the legislation, states would be able to enact their own policies and clear low-level marijuana criminal convictions. Currently, marijuana has been legalized for recreational and medical use in 11 states and one territory: Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington and Washington D.C. Twenty-three additional states have legalized marijuana for medical use only, with more states gearing towards legalization at the state level in the near future (Berke & Gould, 2020).
With state laws across the country changing to decriminalize marijuana and legalize the use of cannabis for either recreational or medical use, it is important to consider the effect these changes will have on the landscape of professional and collegiate sports.
NCAA policy typically mimics professional sports
Fundamentally, the NCAA differs from professional sport from an amateurism front, although recent legislation will soon allow student-athletes to generate revenue off of their name, image, and likeness (NIL). Nevertheless, historically the NCAA has displayed a tendency to update rule changes and legislation regarding its student-athletes to in many ways mimic trends in professional sport.
As the governing authority over member schools and institutions, the NCAA drug tests its participants (student-athletes) in addition to requiring member schools to develop policies and regularly test its student-athletes for performance enhancing drugs and other banned substances. Marijuana is one of the many substances on the NCAA’s banned substance list; until recently, a sample of five nanograms per milliliter constituted a positive drug test. The penalty for testing positive on an NCAA-administered drug test is that the student-athlete is withheld from 50 percent of the playing season for the first offense. A second positive NCAA test results in the student-athlete losing a year of eligibility (NCAA, 2019).
In recent years, professional sports leagues have dialed back their stance on cannabis, raising the minimum allowed nanograms per milliliter found in an athlete’s sample. Likewise, the NCAA has made subtle changes to its drug policy, in 2017 raising the threshold from five to 15 nanograms per milliliter in an attempt to eliminate penalties for athletes who receive “passing smoke” or second-hand smoke (NCAA, 2019). Drug Free Sport International, the agency that partners with the NCAA to complete all its drug testing, reported that since the 2017 increase in permissible nanograms per milliliter, 78 of the 675 student-athletes tested yielded a positive test for THC. Of the 78 positive tests indicating levels of THC, at least 31 of the student-athletes had less than 50 nanograms per milliliter and said that the positive test was a result of second-hand smoke (NCAA, 2019). In 2019, the NCAA again increased the THC threshold used for NCAA drug testing from 15 to 35 nanograms per milliliter, mirroring the shift in major professional sports leagues.
Professional Sports
One hundred and one of the 123 teams in the four major professional sport leagues (NHL, MLB, NFL, NBA) in the United States are in states in which cannabis is legal for either recreational or medical use. The continued legalization of cannabis in states across the country is forcing professional leagues to reevaluate their current drug policy. While many professional sports leagues are researching the effects of marijuana as a form of medication and exploring the idea of changes to their drug policy, MLB is the first to make a concrete change by removing cannabis completely from its “drugs of abuse” or banned substances list.
NHL Drug Policy
Article 47 of the NHL’s and NHL Players’ Association (NHLPA) Collective Bargaining Agreement (CBA) states that test results for drugs of abuse shall continue to be reported to the program committee on an anonymous survey basis unless results display a dangerously high level of drugs of abuse (e.g., cocaine, marijuana). If high levels of drugs of abuse are determined, program doctors forgo anonymity and determine the player the sample belongs to, contacting him to determine if there is a viable “alternative medical explanation.” If there is no such explanation, doctors refer the player to the Substance Abuse and Behavioral Health program for evaluation and treatment, test samples and related documentation are destroyed, and the league is not notified (NHL, 2013, p.189). The NHL and NHLPA’s current CBA runs through 2022.
THC is legal in 28 of the 31 NHL cities. Recreational cannabis is legal in 15 cities with NHL teams, medicinal cannabis is legal in 13 cities with NHL teams and three cities have an NHL team where only CBD oils are legal (Kaplan, 2019).
MLB Drug Policy
The MLB and MLB Players’ Association (MLBPA) agreed to completely remove THC, CBD, and marijuana from its list of “drugs of abuse” as a part of the changes made to the league’s drug program. According to the new Joint Drug Program, marijuana-related conduct will be treated like alcohol-related conduct moving forward (Andone, 2019). Previously, MLB had strict penalties for players testing positive for marijuana; a first positive test resulted in a 25-game suspension, a second positive test resulted in a 50-game suspension, a third positive test resulted in a 100-game suspension, and a fourth positive test meant a lifetime ban from MLB. According to Kaplan’s report (2019), medicinal cannabis is legal in 15 of the cities that are home to MLB teams and recreational cannabis is legal in 11 MLB cities.
NFL Drug Policy
The NFL raised the minimum levels of THC allowed in a player’s test sample from 15 to 35 nanograms of THC per milliliter in 2014. The NFL and NFL Players’ Association’s CBA mandates that 10 players from each team are randomly selected for drug testing each week during the season. The first positive test for drugs of abuse results in referral to the league’s substance abuse program; a player’s second positive test results in a “two-game check” fine; the third positive test is a “four-game check”; the fourth positive test results in a four-game suspension; the fifth positive test results in a 10-game suspension, and finally the sixth positive test results in a one-year ban from the league (Kaplan, 2019).
Medicinal cannabis is legal in 16 NFL cities and recreational cannabis is legal in nine NFL cities, while the NFL has teams in seven cities where only CBD is legal (Kaplan, 2019). Changes are expected to be made to the NFL’s current drug policies as the NFL and NFLPA’s CBA expires after the 2020 season; drug policy is a major point of discussion for the upcoming agreement. Currently the NFL is in the middle of negotiations for the 2021 CBA agreement. The proposed new CBA would increase the nanograms of THC per milliliter from 35 to 150, and players would no longer be suspended for a positive test (Angell, 2020). The league has already begun internal testing to determine the medical benefits of cannabis as an alternative method of pain management/recovery (Wharton, 2019).
NBA Drug Policy
Currently, cannabis is still on the NBA’s substance abuse list. The NBA’s previous CBA, which ran from 2011-17, was consistent with many other professional sport leagues’ drug policies of the time, in which 15 nanograms of THC per milliliter resulted in a positive drug test. Under the NBA’s current CBA, which runs through 2023, a sample of 35 nanograms of THC per milliliter constitutes a positive drug test (NBA, 2017). An NBA player’s first positive test results in required treatment mandated by the NBAPA, the second positive test results in a fine of $25,000, the third violation of the NBA/NBAPA drug policy results in a five-game suspension, each following positive test results in an additional suspension that is five games longer than that player’s previous marijuana suspension (e.g., 10-game suspension for the fourth offense) (Winderman, 2019).
THC is legal in 22 of the 30 cities that are home to NBA franchises (Kaplan, 2019). Ten of the cities have legalized cannabis for recreational use and the other 12 have legalized cannabis for medicinal use alone. While the NBA’s CBA agreement is several years out, NBA commissioner Adm Silver has discussed reviewing the league’s current policy and researching the medicinal benefits of cannabis for its players for the future (Bures, 2019).
NCAA Example
Currently, cannabis is one of the substances on the NCAA’s banned substance list. In May 2018, Georgia high school senior and football recruit C. J. Harris was ruled ineligible for any participation in NCAA athletics and was unable to become a “preferred walk-on” for Auburn University. Harris had been diagnosed with epilepsy and suffered from 14 seizures before being prescribed cannabis oil to treat his symptoms. While Auburn coaches attest Harris was ruled ineligible due to the results of his physical and nothing else (Bogage, 2019), the uncertainty surrounding Harris’s situation brings the question to mind: If states continue to legalize cannabis for medical use, does state legislation or NCAA regulation rule?
Because the NCAA’s list of banned substances is so extensive, NCAA bylaws allow student- athletes to test positive for a banned substance if there are “legitimate medical purposes.” These medical exemptions may only be explored once non-banned medication treatment options are exhausted. The banned substance must be prescribed by a doctor, and the treatment must be documented by the team’s medical staff and athletic trainer (NCAA, 2019). In states where cannabis is legalized for medical use, doctors may prescribe patients cannabis or products containing high levels of THC as a treatment.
Retroactive Lawsuits
With medical marijuana being legal in many of the states that NCAA institutions are located in, the potential arises that student-athletes who received punishments from the NCAA for marijuana use may bring litigation against the NCAA, either proactively or retroactively.
Athletes retroactively seeking justice against the NCAA is not uncommon. In 2019, the NCAA paid out settlement money to more than 30,000 former student-athletes as the result of litigation filed against the NCAA with regard to the cost of attendance. The lawsuit was centered around the difference between the value of a traditional athletic scholarship and the actual cost of attending that school between 2010-15 (Berkowitz & Epstein, 2019). This settlement was the second time in just over three years that former student-athletes received a settlement from the NCAA.
References
Andone, D. (2019, December 13). MLB will remove marijuana from the list of ‘drugs of abuse’ and test for opioids. Retrieved from https://www.cnn.com/2019/12/12/sport/mlb-changes-drug-program/index.html
Angell, T. (2020, February 20). NFL would end marijuana suspensions in deal approved by team owners. Forbes. Retrieved from https://www.forbes.com/sites/tomangell/2020/02/20/nfl-would-end-marijuana-suspensions-in-deal-circulated-by-players-union/#3b1c95a6536a
Berke, J., & Gould, S. (2020, January, 1). Legal Marijuana just went on sale in Illinois. Here are all the states where cannabis is legal. Business Insider. Retrieved from https://www.businessinsider.com/legal-marijuana-states-2018-1
Berkowitz, S., & Epstein, J. (2019, October 6). NCAA’s $208.7 million in legal settlement money finally reaching athletes’ mailboxes. Retrieved from https://www.usatoday.com/story/sports/2019/10/04/ncaas-208-7-million-legal-settlement-reaching-athletes-mailboxes/3859697002/
Bogage, J. (2018, August 8). Football recruit pleads with college coaches to see past his medical cannabis medication. Retrieved from https://www.washingtonpost.com/news/early-lead/wp/2018/08/08/football-recruit-pleads-with-college-coaches-to-see-past-his-medical-cannabis-medication/
Bures, B. (2019, August 8). NBA commissioner on basketball players using marijuana: ‘It’s a complicated issue’. Retrieved from https://www.chicagotribune.com/marijuana/sns-tft-nba-commissioner-says-players-using-marijuana-complicated-20190808-rr5pojtigrgixne53kuzcceb2m-story.html
Burnsed, B. (2019, June 20). NCAA increases THC testing threshold. Retrieved from http://www.ncaa.org/about/resources/media-center/news/ncaa-increases-thc-testing-threshold
Kaplan, E. (2019, March 7). Is the NHL the future of marijuana in pro sports? Why it could be. Retrieved from https://www.espn.com/nhl/story/_/id/26046596/is-nhl-future-marijuana-pro-sports-why-be
Lovelace, B. (2019, November 20). House committee approves landmark bill legalizing marijuana at the federal level. CNBC. Retrieved from https://www.cnbc.com/2019/11/20/house-committee-approves-bill-decriminalizing-marijuana-on-the-federal-level.html
NBA (2017, January 19). Collective Bargaining Agreement. Retrieved from https://cosmic-s3.imgix.net/3c7a0a50-8e11-11e9-875d-3d44e94ae33f-2017-NBA-NBPA-Collective-Bargaining-Agreement.pdf
NCAA. (2019, November 5). Medical Exceptions Procedures. Retrieved from http://www.ncaa.org/sport-science-institute/medical-exceptions-procedures
NHL (2013, February 15). Collective Bargaining Agreement between National Hockey League and National Hockey League Players Association.
Robotti, S. B. (2019, August 24). Drug Classifications, Schedule I, II, III, IV, V. Retrieved from https://medshadow.org/drug-classifications-schedule-ii-iii-iv-v/
Winderman, I. (2019, November 10). NBA Marijuana Policy: Treatment, penalties, disclosure. Retrieved from https://www.sun-sentinel.com/sports/miami-heat/fl-sp-miami-heat-dion-waiters-marijuana-20191110-a3nrwhslpfcavpoolcalawk3c4-story.html
Wharton, D. (2019, September 7). Will the NFL allow players to use marijuana? League wants science to determine drug policy. Retrieved from https://www.latimes.com/sports/story/2019-09-06/nfl-considers-cannabis-for-pain-roger-goodell-drug-policy
Ayana Dunning is a Sport Management doctoral student at Troy University. She is also a professional within NCAA athletics and currently serves as an administrator in Women’s Basketball at West Virginia University.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He has published over 30 articles and delivered over 50 presentations at professional conferences. He lives in Orlando, FL.
