By Robert J. Romano, JD, LLM, Assistant Professor of Sport Management, St. John’s University
Without question, COVID-19 has had a major impact on college and university campuses throughout the United States. Most institutions have transitioned from in-person, face-to-face classes, to online-only instruction, while also significantly altering their non-academic side of college life: residential living and dining, extracurricular activities, and collegiate athletics. With few traditions in higher education looming larger than that of college sports, campuses around the country lost a piece of themselves, their vibrancy, when various athletic conferences decided to cancel their winter and spring athletic seasons last March as a result of the coronavirus. In fact, some conferences, the Ivy League as an example, have made the call to withdraw from fall sports, while others, such as the SEC and ACC, have announced that medical advice permitting, members will play a conference schedule while mandating strict testing for athletes.
Fortunately, colleges and universities have been receptive to amending some of their rules, especially in the area of eligibility requirements. Specifically, on March 30, the NCAA announced it would extend eligibility an additional year for most athletes participating in spring sports whose seasons were shortened, and incoming freshmen are being given wider latitude regarding academic readiness.[14] Interestingly, though, this eligibility relief does not extend to winter sports athletes whose postseason tournaments were also canceled.[15]
But, how will this postponement of seasons and realignment of eligibility requirements affect the student-athletes who were serving a suspension for violating the NCAA drug testing protocols? Per the NCAA’s Official Drug Testing Program, under Section 3.0 Causes of Loss of Eligibility, each year every student-athlete, if he or she wants to participate in college athletics, is required to sign a Drug Testing Consent form wherein the student-athlete consents to the testing for substances banned by the NCAA. Per Section 3.2 if a student-athlete test positive for a banned substance, he or she is subject to loss of eligibility, the penalties of such are legislated under NCAA bylaw 18.4.1.4 (Division I) and 18.4.1.5 (Divisions 11 and 111).[16]
18.4.1.4.1 Penalty — Banned Drug Classes Other Than Cannabinoids and Narcotics. A student-athlete who, as a result of a drug test administered by the NCAA, test positive for use of a substance in a banned drug class other than cannabinoids and narcotics (in accordance with the testing methods authorized by the Board of Governors), shall be subject to the following:
(a) The student-athlete shall be ineligible for competition in all sports until he or she has been withheld from the equivalent of one season (the maximum number of championship segment regular-season contests or dates of competition in the applicable sport per Bylaw 17) of regular-season competition. The student-athlete must be otherwise eligible for competition to fulfill this penalty except a transfer student-athlete may fulfill a transfer residence requirement and a drug-testing penalty concurrently if he or she meets all other eligibility requirements;
(b) A student-athlete who tests positive during a year in which he or she did not use a season of competition, shall be charged with the loss of one season of competition in all sports. A student-athlete who tests positive during a year in which he or she used a season of competition, shall be charged with the loss of one additional season of competition in all sports (in addition to the season used) unless he or she uses a season of competition in the next academic year; and
(c) The student-athlete shall be ineligible for intercollegiate competition for 365 consecutive days after the collection of the student-athlete’s positive drug-test specimen and until he or she tests negative pursuant to the NCAA Drug Testing Program’s policies and procedures.
The first question after reading Section 18.4.1.4.1 is — what is the actual length of the suspension for a student athlete who has violated the NCAA’s drug programs? Subsection (a) states ‘a suspension of one season of regular season competition’, while Subsection (c) states ‘student-athlete shall be ineligible for intercollegiate competition for 365 days . . .’. During normal, non-COVID times, any discrepancy or inconsistency between the two rules may not be a concern, or for that matter, even exist. A violating student-athlete could easily serve out his or her suspended regular season of competition within a 365-day year. But since COVID-19 is the new normal, and with athletic programs forgoing competition for at least one season, if not more, what happens to the length of a student-athlete’s period of ineligibility when there are no scheduled athletic competitions?
The NCAA has determined that only games played during the COVID shortened season will be considered when calculating compliance with Subsection (a) and that the violating student-athlete must then serve-out the remainder of the regular season games during the next season, even if the next season is outside of Subsection (c)’s 365-day time frame. Therefore, student-athletes found ineligible to play for violating the NCAA’s drug testing program before last March will only get “credit’ for the total number of games he or she played before the postponement of games, with the 365 days being ‘tolled’ or paused until play is resumed.
But is this a fair interpretation of the rules? Should the period of ineligibility be ‘tolled’ during the time of no play, or should the student-athlete be allowed back onto the field after the expiration of the 365-day time period? There certainly are persuasive arguments supporting both sides, with the easy one being, ‘hey, they violated the rules, they should live with the NCAA interpretation, no matter what that is.’ But is the tolling of the suspension period necessarily in the best interest of the student-athlete?
This unprecedented health crisis has caused the student-athlete to experience a series of unique situations; isolation from friends and family, confusion about disease transmission, and fear of possibly losing someone close to them. Factor in the transition to online learning, the NCAA must understand that most, if not all, student-athletes are experiencing high levels of stress and anxiety worrying about whether or not they will ever be afforded the opportunity to play college sports again, the status of their scholarships, and what the world will afford them after graduation. Combining these COVID-related circumstances results in a significant burden being placed on these young adults, circumstances that the NCAA needs to be mindful of and sympathetic to when it comes to disciplining student-athletes for a rules infraction. In actuality, the NCAA needs to develop a more student-centered approach when interpreting and enforcing its rules and by-laws, the goal of which is to get the student-athlete back on the field of play sooner rather than later, as a way for them to cope with this current health crisis.
Keep in mind, that the argument is not that student-athletes should not be punished when they violate an NCAA rule or policy, but that the NCAA, as the sole interpreter and enforcer, in this rare time of COVID-19, needs to put the student-athlete first when it comes to how it interprets and enforces such rules and policies. The NCAA must place the student-athletes’ long-term health and welfare ahead of any rule interpretation that would lengthen the time that the student-athletes are not afforded the benefits of playing and competing in sports.
[14] Note, however, individual schools will have to work to determine student scholarship eligibility.
[15] Winter sports include basketball, wrestling, and gymnastics.
[16] Note, the NCAA doesn’t have a banned substance list — more on that in a later article.
