By Kelly Huff & Elizabeth Catalano, of Montgomery McCracken Walker & Rhoads LLP
While 2020 may forever be remembered as the unprecedented “Year of No Sports,” it may mark a turning point in the acceptance of professional athlete cannabis use. State governments continue to address the legality of marijuana for both recreational and medicinal purposes, and employers throughout the county are grappling with how to handle marijuana in the workplace. It comes as no surprise then that the governing bodies of American professional sports leagues likewise have been forced to re-evaluate their approaches to drug testing, especially given that athletes in many states now can legally buy and use cannabis. Some leagues also are taking steps towards evaluating whether cannabis could be used as a pain management therapy for their ailing athletes. Like the divide between states, however, other leagues are maintaining their historically harsh penalties for athlete marijuana use. With limited medical research available, and a whole lot of lobbying at every level of government, only time will reveal the direction and pace with which cannabis use by professional athletes will be officially accepted by their employers.
What’s in a Name?
One common misconception throughout the United States is that the terms “cannabis,” “marijuana,” “hemp,” and “cannabidiol (CBD)” all refer to the same product. Despite CBD products popping up on shelves and storefronts nationally, these terms have very specific meanings in a highly regulated industry.
The term “cannabis” refers to the whole plant species, cannabis sativa. Within the species, there essentially are two types of cannabis plants — hemp and marijuana — which produce distinct substances that are regulated completely differently under federal and state law. The main difference is the level of tetrahydrocannabinol (THC) in the plant. THC is the chemical compound that has psychoactive cannabinoids and creates psychological effects, commonly referred to as a “high.”
Hemp is defined under federal law as cannabis sativa with a delta-9 THC content concentration level of less than 0.3% on a dry weight basis. On December 20, 2018, the passage of the 2018 Farm Bill removed hemp from Schedule I of the Controlled Substances Act, transforming it to a legal substance in all 50 states. Only CBD products derived from hemp with a THC level under the federal limit may be marketed and sold to consumers. CBD-infused cosmetics, lotions, and creams have become widely available.[18] It is equally important to recognize, as professional sports leagues have pointed out, that there is very limited testing or regulation of the abundant CBD products available on the market, raising many questions as to the purity, toxicity, potency and effectiveness of CBD products.
Marijuana contains higher levels of THC and still is regulated as a Schedule I substance; unlike hemp, it therefore still is illegal under federal law. However, legality varies at the state level. Recreational marijuana use currently is legal in 11 states and Washington D.C., and medical marijuana is legal in 33 states and Washington D.C. Of import to the professional sports world, this means that 101 of the 123 teams that make up the NFL, NBA, MLB, and NHL, or 82.1%, play in states where marijuana is legal in some capacity. Only 22 of these professional teams are located in the states where neither recreational nor medicinal use is legal: Texas, North Carolina, Tennessee, Georgia, Indiana and Wisconsin.
With the law now on their side, many professional athletes recently have informed their leagues that they do use cannabis products and have asked the leagues to reconsider both routine drug testing and therapeutic uses for cannabis, especially in place of highly-addictive opioids. Many retired professional athletes have readily endorsed CBD products. Very few current professional athletes are publicly promoting CBD products, but a few have emerged outside of the four major sports leagues, including U.S. Soccer star Megan Rapinoe, UFC fighter Nate Diaz, and pro-golfer Bubba Watson.
Policy Progressions in 2020
Given these recent legislative changes, leagues can no longer simply defer to the long-standing categorial prohibition on cannabis use based on federal law. As a result, there have been substantial changes to various league substance use/testing policies over the past six months.
National Football League: On March 15, 2020, the NFL announced that the Players Association (NFPLA) ratified a new, ten-year collective bargaining agreements (CBA) that significantly changes the league’s drug and marijuana policy. The new policy quadruples the threshold for positive THC tests from 35 nanograms to 150 nanograms, in line with the World Anti-Doping Agency threshold, and eliminates suspensions for positive tests. The new policy also substantially reduces the testing window from four months pre-season to two weeks before the start of training camp. Keeping a focus on player safety, however, which the NFL insists is a driving force in maintaining drug testing policies, the new policy increases penalties for driving under the influence by imposing a three-game suspension.
This policy change comes on the heels of a novel pain management forum held by the NFL-NFLPA Pain Management Committee in January 2020. The league announced that the committee had “invited manufacturers of CBD products to share their research today so the Committee may hear and consider the possible scientific evidence base for CBD use as a pain management alternative. The meeting was an educational and scientific exercise and does not impact the jointly administered Policy and Program on Substances of Abuse.” [19] For now, the NFL maintains that there is insufficient medical research on humans to make a formal determination on the use of CBD to treat acute and chronic pain. The NFL stated: “There are small clinical studies that suggest that it may be effective for treating neuropathic pain. Due to the fact that the majority of CBD products are purchased from unregulated sources, it is hard to know the purity and potency of these products.”[20] Recognizing that “CBD is a promising compound” for pain management, however, this meeting signifies a major step towards the possibility of future therapeutic uses of CBD products in the league.
Major League Baseball: On December 12, 2019, the MLB took a major step in revising its drug policy when it removed marijuana from its list of banned substances. Before this change, players who tested positive for THC were referred to mandatory treatment, with failure to comply carrying up to a $35,000 fine. Starting with the 2020 season, the MLB teams will treat marijuana the same as it does alcohol, and like the NFL, there will no longer be suspensions due to marijuana use. Players do not have free reign to use marijuana at work, however, as players remain subject to discipline for use or possession, especially if they were to appear at practice or a game while high. The MLB commissioner wrote that players who “appear under the influence of marijuana or any other cannabinoid during any of the Club’s games, practices, workouts, meetings or otherwise during the course and within the scope of their employment” will undergo a “mandatory evaluation” and will possible be subject to mandatory treatment programs or unidentified discipline.[21]
The MLB also announced it will be requiring all players and league personnel to undergo training on the “dangers of opioid pain medications and practical approaches to marijuana”, making it the first professional sports league to mandate this type of player education relating to cannabis use.
Similar to the NFL, the MLB has not committed to any therapeutic use of cannabis products. Team doctors are forbidden from prescribing medical marijuana or providing CBD products to players, or keeping such products on club premises, because “clubs are required to comply with all DEA regulations that apply to controlled substances.” Players are also prohibited from investing in or being sponsored by the cannabis industry, despite any legality.[22]
National Hockey League: The NHL historically has the most progressive approach to athlete marijuana use, testing players’ THC levels but not implementing any punishments for positive tests. The League generally follows the World Anti-Doping Agency guidelines for prohibited substances while taking a more lenient approach towards recreational drug use. If an NHL player is found to have “abnormally high levels” of THC, the team treats it as a health care issue, like it treats alcoholism, rather than mandating punishments. The league’s CBA does not disclose the level of THC required to be deemed “abnormally high”.
National Basketball Association: At the other end of the spectrum, the NBA continues to have the strictest policy regarding cannabis use in professional sports, having kept marijuana on its list of banned substances for 2020 and continuing to test and fine players for use. The NBA uses a very low threshold of 15 nanograms of THC for its testing threshold, however, so this is not a zero-tolerance policy. Players are subject to four random tests during the regular season and two during the off-season. Punishment can escalate from entering a drug program after a first positive test, to a $25,000 fine for a second positive, to a five to ten game suspension for third and fourth positives. The NBA agreed to stop drug testing players during the 2020 season shutdown due to COVID-19, and it remains to be seen whether the NBA will follow other leagues in its relaxation of the testing threshold and punitive actions for positive tests.
A Hazy Future?
Recent policy changes show that, at minimum, leagues are recognizing they must be flexible and progressive towards the substance that has become increasingly socially accepted, as well as legal, in many states. While these changes show progress, additional clarity likely will be needed as the policies are implemented. For example, the leagues largely continue to overlook the critical distinctions between hemp-based CBD and marijuana. Because these products are regulated differently, their use should be treated differently amongst athletes. The NFL appears to be the only league actively reviewing the research behind CBD and its effect on human health and pain, with the other leagues focusing only on the THC levels in their testing protocols. This measured approach is understandable, as the leagues are correct that, despite legality, the medical research on marijuana’s and CBD’s effects on human health is still very limited.
League policies also are silent as to whether testing thresholds will be enforced the same way against players who use medical marijuana, even if they have a medical registration card and prescription from non-league doctors. This creates a significant grey area in enforcement and has been a growing area of employment litigation in other workplace settings based on anti-discrimination laws. In May 2018, for example, the NFL rejected player Mike James’ request for a therapeutic exemption to use marijuana. Now in 2020, leagues will need to figure out whether and if they should prohibit players from using medically-prescribed marijuana in the 33 states that have legalized it.
Additionally, only the MLB has formally addressed brand awareness issues by prohibiting their players from being sponsored by cannabis companies. This is somewhat surprising because all of the leagues have acknowledged that they are mindful of the messaging concerns to America’s youth regarding cannabis use, as many professional athletes serve as role models in modern society. This is likely due to a combination of concerns over conflicting league policies, misunderstanding of the difference between CBD and marijuana, and the lack of quality control in some CBD products. As leagues relax their cannabis policies and more studies on CBD become available, these sponsorships could become more commonplace in the near future.
Other key questions that remain are whether these policy changes will alter the rates of cannabis product use by professional athletes, increase rates of positive testing, or create other athlete performance issues. We just may have to wait until the 2021 seasons to find out.
Kelly Huff and Elizabeth Catalano are lawyers at Montgomery McCracken Walker & Rhoads, LLP in Philadelphia. Ms. Huff advises companies on federal and state regulatory issues relating to the development of cannabis law, including employee drug testing, banking issues, and FDA regulatory compliance. Ms. Catalano focuses her practice on litigation and employment law.
[18] The Food and Drug Administration does not permit the use or sale of CBD in human or pet food.
[19] Judy Battista, NFL, NFLPA hold forum on CBD use for pain management, NFL News, http://www.nfl.com/news/story/0ap3000001096643/article/nfl-nflpa-hold-forum-on-cbd-use-for-pain-management (Jan. 14, 2020).
[20] NFL, “Summaries from the NFL/NFLPA Committee on Pain Management,” available at https://www.playsmartplaysafe.com/wp-content/uploads/2020/01/alt-o-and-cannabinoids-medical-staff.pdf (last accessed Apr. 14, 2020).
[21] MLB, MLBPA agree to changes to joint drug program, MLB News, https://www.mlb.com/press-release/press-release-mlb-mlbpa-agree-to-changes-to-joint-drug-program (Dec. 12, 2019).
[22] Ben Adlin, Baseball Players Can Smoke Marijuana But Can’t Be Sponsored By Cannabis Companies, MLB Says, Marijuana Moment, https://www.marijuanamoment.net/baseball-players-can-smoke-marijuana-but-cant-be-sponsored-by-cannabis-companies-mlb-says/ (March 3, 2020).
