By Kayla M. Jacob and David Fleshman, of Breazeale, Sachse & Wilson, LLP
Picture it: March Madness 2025 is about to begin. And while there are still brackets, buzzer beaters, the Elite Eight and the Final Four, this March Madness is a tad different. Stepping onto the court for the first time ever are student-athlete employees.
Consistent with the opinion of the National Labor Relations Board, student-athletes participating in March Madness 2025 are joint employees of their academic institutions and the National Collegiate Athletic Association (NCAA). But there may be cause to blow the whistle on the unresolved issue of drug testing these student-athlete employees for marijuana.
Historic perspective of marijuana in sports
“Doping” regards athletes using banned substances in competitive sports to gain a competitive advantage. In an effort to prevent doping, sports organizations, like the NCAA, maintain a prohibited list of substances they deem to be performance-enhancing drugs, such as human growth hormones, stimulates, diuretics, and anabolic steroids.
Historically, the prohibition of marijuana in sports has been a result of anti-doping efforts. From an anti-doping perspective, marijuana use in competition may endanger athletes and others because of increased risk taking, such as slower reaction times. Marijuana use is also viewed as inconsistent with the athlete as a role model, and thus, is said to violate the spirit of sport.
The NCAA has opined that marijuana is not considered a performance-enhancing substance; yet, marijuana remains banned alongside doping agents and illicit substances, such as cocaine and fentanyl.
Current buzz about marijuana in collegiate sports
Now less polarizing, the stigma of marijuana use is evolving and has become more socially acceptable. On trend, many sports leagues are changing marijuana drug testing policies.
The NCAA announced last year that it was changing its approach to cannabis testing. Although marijuana is still a prohibited substance, the NCAA has increased the threshold levels of marijuana that trigger a positive test result, which could potentially lower the number of student-athletes who test positive for marijuana. Additionally, the NCAA proposed a new penalty structure to lower the marijuana penalties for student-athletes who test positive for marijuana.
Drug testing student-athlete employees – game changer or status quo?
In a 1995 landmark decision, the United States Supreme Court held that drug testing student-athletes is constitutional.
Similarly, in 1994 the California Supreme Court opined that there is no constitutional violation when the NCAA’s drug testing program is enforced as a student-athlete’s lower expectation of privacy is balanced against the NCAA’s countervailing interests.
Subsequently, a Louisiana appellate court held that a state university’s athletic drug testing program was constitutional considering the diminished expectation of privacy in the context of intercollegiate sports and the university’s shared interest with the NCAA to ensure fair competition in intercollegiate sports and protect the health and safety of student-athletes.
However, these decisions were based on collegiate sports being voluntary and, at least in part, the NCAA’s classification as a voluntary, unincorporated, private association. But what happens if the NCAA is classified as an employer?
As an employer the NCAA may be forced to develop a new playbook on drug testing with consideration of the following:
- If classified as an employer, NCAA’s drug testing policies could be scrutinized under federal anti-discrimination laws like Title VII (which covers discrimination based on race, color, sex, national origin, religion) and the ADA (which covers disability discrimination). Thus, players may have a cause of action against the NCAA if its drug testing policies are not uniformly applied or its selection criteria for random drug testing is discriminatory. These federal laws provide additional protections to student athletes as employees that would not be available without employment status.
- If found to be employees, student-athletes may choose to unionize. Unions in sports are common and unions often bargain with sports associations/employers for the benefit of professional athletes. For example, the National Basketball Players Association is a labor union that represents NBA players. Recently, that union successfully negotiated a collective bargaining agreement that ditches marijuana testing. College athletes could soon be just as empowered to negotiate drug testing policies. Such negotiations and participation in unionized activity would be protected under federal laws governing unions.
- Several states have passed anti-discrimination laws that prohibit employers from discriminating against employees who use marijuana. Compliance with some state laws could restrict the penalties that the NCAA currently enforces. These penalties would be equivalent to adverse employment actions if the NCAA is reclassified as an employer. Moreover, as a multi-state employer, the NCAA would need to comply with laws in each state in which it operates which may not fit a national, one policy fits all approach.
- Colleges and universities that are members of the NCAA typically implement local drug testing policies for student athletes that comply with NCAA standards. If classified as employers, these educational institutions would also have to comply with relevant state laws that govern the procedures for drug testing in the workplace (e.g. requiring a confirming test if positive and confidentiality of results). Some states also limit testing to reasonable suspicion or probable cause situations. These restrictions may sometimes be imposed on only public universities and not private universities in some states. Thus, college athletes at public educational institutions may be subject to different drug testing criteria than athletes at private educational institutions.
Bottom line
The move from student-athletes to student-athlete employees will not be a slam dunk. One critical issue to consider is how colleges, universities and the NCAA will eliminate potential exposure when implementing drug testing policies under their new status as employers and with deference to marijuana’s complex legal landscape.
